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Court of Protection Update (May 2012)

Sally Bradley, Barrister, of 4 Paper Buildings analyses recent decisions in the Court of Protection relating to capacity to consent to sexual relations, DNA testing and statutory wills.

Sally Bradley, barrister, 4 Paper Buildings


Sally Bradley, Barrister, 4 Paper Buildings

This edition of the Court of Protection Update looks at recent case law in the following areas:

Capacity to consent to sexual relations
In A Local Authority v H [2012] EWHC 49 (COP), Mr Justice Hedley was asked to determine whether or not a 29 year old woman (H) had capacity to consent to sexual relations. The case is worth noting for its application of the recent authorities on this issue, in particular the decision of Wood J in DCC v LS [2010] EWHC 1544 Fam (reviewed here) and DBC v AB [2011] EWHC 101 (COP) (reviewed here). 

The consultant psychiatrist instructed in the proceedings to assess H found that she had mild learning difficulties, atypical autism and an IQ of 64. She had a long history of sexualised behaviour which had led her to be placed on the child protection register, though no statutory intervention had ever taken place. H was clearly vulnerable to sexual exploitation. In 2003, a man was convicted of attempting to rape her and she had engaged in sexual activity with a number of different men. In 2009, H sought refuge with a man called R who informed the local authority about H's behaviour and vulnerability. She was interviewed by the local authority and told them that she had had sex with several men at the same time, often much older than her, and had attempted to have sex with a dog. She was admitted to hospital in November 2009, where she remained until August 2011. 

The case came before the Court of Protection for declarations as to H's capacity to consent to sexual relations. In reviewing the previous authorities, Hedley J stated:

'Counsel are agreed that the judgments are as between themselves not capable of reconciliation.....What then is this court to do?  Clearly I cannot avoid expressing a view with the attendant risk of yet further confusion.  Yet it cannot be any part of my role, nor would I regard myself as equipped to attempt it, simply to subject those five judgments to critical analysis and then solemnly pronounce as between them.'  

Hedley J attempted to cut thorough the precedential difficulties by setting out some of the factors which would point to a person having capacity. The person should have an understanding of the mechanics of sexual relationships and that sexual relations may lead to pregnancy. They should also have a rudimentary knowledge of the health risks associated with sexual relations and that those risks can be reduced by taking precautions such as condoms. Importantly a person's moral understanding of sexual relations should not form part of the test for capacity. Hedley J specifically rejected the call from counsel for H to formulate a test for an understanding of this aspect of sexual relations. An emotional understanding, however, is crucial to the test for capacity:

'It remains in my view an important, some might argue the most important, component; certainly it is the source of the greatest damage when sexual relations are abused.  The act of intercourse is often understood as having an element of self-giving qualitatively different from any other human contact.  Nevertheless, the challenge remains: can it be articulated into a workable test?  Again I have thought long and hard about this and acknowledge the difficulty inherent in the task.  In my judgment one can do no more than this: does the person whose capacity is in question understand that they do have a choice and that they can refuse?  That seems to me an important aspect of capacity and is as far as it is really possible to go over and above an understanding of the physical component.'

Applying his formulation to H's case, Hedley J had no hesitation in finding that H lacked capacity to consent to sexual relations. She understood that she had a choice to say no to sex but found it very difficult to exercise that choice. She had no understanding of the health risks of sexual relations. This was particularly harmful in her case given the amount of sexual partners she had had. At the time of the proceedings, H was being accommodated by the local authority and was under one-on-one supervision. The accommodation clearly amounted to a deprivation of H's liberty, though this was justified on a best interests basis. 

The law in this area is complex and, as Hedley J remarked, this judgment 'may have deepened rather than dispelled the legal fog'. Hedley J's checklist of factors could provide a practical way forward, but it leaves open some of the questions raised by the House of Lords in R v C Anthony [2009] 1 WLR 1786, in particular the importance of the person's understanding of the consequences of their actions rather than simply the nature of the sexual act.  Hedley J stated that he looked forward to a case on this issue reaching the appellate courts. 

DNA Testing
In LG v DK [2011] EWHC 2453 (COP) the President gave guidance on the circumstances in which the court can order DNA testing of incapacitated adults for the purposes of establishing paternity. This case represents the first time that this issue has been raised and fully argued in the Court of Protection. There are a number of authorities which consider the question of taking DNA samples from children, see for example Re E (A Minor) (Parental Responsibility)  [1994] 2 FCR 709 and Re L (Paternity Testing) [2009] EWCA Civ 1239, [2010] 2 FLR 188, but no reported cases prior to this one dealing with incapacitated adults. 

The case concerned an 84 year old man, DK, who suffered from dementia. DK was found to lack capacity and resided in a nursing home. LG, the senior partner in a firm of solicitors, had been appointed in 2008 as his financial deputy. The matter was returned to court by LG after she found references to a daughter in DK's papers. The daughter was identified as BJ, a woman in her early fifties. The question before the court was whether or not it would be in DK's best interests for him to provide a bodily sample for the purposes of establishing BJ's paternity. BJ was not a party to proceedings, but her evidence was that her mother and DK had a brief relationship in 1959 as a result of which she was conceived. She was brought up understanding that DK was her absent father. Her mother changed her surname by deed poll to K. 

Section 21 (4) of the Family Law Reform Act 1969 states as follows: 

(4)  A bodily sample may be taken from a person who lacks capacity (within the meaning of the Mental Capacity Act 2005) to give his consent, if consent is given by the court giving the direction under section 20 or by –

(a) a donee of an enduring power of attorney or lasting power of attorney (within the meaning of that Act), or

(b) a deputy appointed, or any other person authorised, by the Court of Protection,

with power in that respect.

The matters which the court must take into account in determining whether or not to order a DNA sample to be taken in these circumstances are the best interests criteria set out in section 4 of the Mental Capacity Act 2005. Counsel for the Official Solicitor argued that section 21 was the only means by which the court could order a DNA sample to be taken from a person lacking capacity. The court could not use its powers under section 15 MCA 2005 to make declarations, under section 16 MCA 2005 to make decisions or under the inherent jurisdiction to order the taking of DNA samples. The Official Solicitor argued that, as no specific application had been brought in the COP proceedings in respect of parentage, the court could not use its powers under section 20 of the Family Law Reform Act 1969 to order a DNA test as there were no 'civil proceedings' to trigger the use of section 21. 

The President rejected the Official Solicitor's argument in respect of jurisdiction:

'......I find myself unable to accept the argument that, as a matter of jurisdiction, the COP lacks the jurisdiction to give a direction for, and to consent on DK's behalf to, the taking of a bodily sample as the proceedings are currently constituted. Having thought anxiously about the matter, I have come to the conclusion that, as a matter of jurisdiction, section 21(4) of the 1969 Act does give the court the power to consent to the taking of a bodily sample from a person lacking capacity notwithstanding the absence of a specific application within the COP proceedings putting the parentage of an individual in issue.' 

The President's decision was based on two factors. First, the fundamental difference between taking bodily samples from incapacitated adults as opposed to children. In the case of children, if the person with care and control of the child does not consent, the court can override their objection if it is in the child's best interests. In the case of incapacitated adults, the person whose consent is to be overridden is also the person who is to be tested; they are one and the same person. The authorities in respect of children were therefore distinguishable on their facts. Secondly, the words of section 21(4) are unqualified:

'If the court were to take the view, for any reason, that it was in the interests of the person lacking capacity to undergo a DNA test, it would be strange if the court did not have the jurisdiction to consent to such a sample being taken.'

In DK's case, the question of whether there should be a DNA test was adjourned to allow for the execution of a statutory will. The judge accepted that there was a strong likelihood that the will would leave much of DK's property to BJ in any case, whether or not he was her biological father. DNA testing may therefore be disproportionate.   

The President also considered whether applicants seeking a determination of parentage should apply in a court other than the COP for a declaration of parentage under section 55A of the Family Law Act 1986. In view of the President's decision that a free standing power to take a DNA sample exists under section 21(4), absent any other application which gives the COP jurisdiction, an application under section 55A would be unnecessary. 

Statutory Wills
Section 18(1) MCA 2005 gives the Court of Protection jurisdiction to make a statutory will on behalf of someone who lacks capacity. D v JC and Others Case Number 11757467 concerned an application by the daughter (D) of JC for an amendment of his existing statutory will, in which she was not included, to grant her an equal share of JC's £3.5 million estate alongside his three other children, A, B and C. D had been adopted and brought up in a different family under a different name. In 1991 she made contact with her mother and siblings. She did not renew contact with JC, recognising that it would be too disruptive for him. JC was 89 at the time of the application and suffered from dementia. The Official Solicitor was asked to represent JC and concluded that he did not have testamentary capacity. 

D argued that the fact of her adoption should not mean that she be treated any differently from her biological siblings. JC had effectively abandoned responsibility for all four children at an early stage in their lives; the legal severance of the parental relationship brought about by the adoption order did not have any greater effect than the actual severance in the case of the other children. In the circumstances, an objective bystander would consider that a four-way division rather than a three-way division was the right thing to do.

D's application was, unsurprisingly, opposed by A and B (C played no part in the litigation). They argued that her claim was essentially based on moral rather than legal foundations. A, B and C were JC's children in the eyes of the law and D was not. In any case, JC had no relationship whatsoever with D, so it was doubtful whether there was in fact any moral justification for D's application.    

Senior Judge Lush considered the existing authorities on statutory wills. Any authority predating the MCA 2005 is no longer good law as it does not specifically apply the best interests test now required under the Act. Prior to the MCA 2005 coming into force, the judge simply 'stood in the shoes of the testator' and made the will that the testator would have made at the time. This was no longer an appropriate approach to take. However, the balance sheet approach recommended by Thorpe LJ in Re A (Medical Treatment: Male Sterilisation) [2000] 1 FLR 549, weighing up each aspect of the best interests checklist in turn, was also not particularly helpful in applications concerning statutory wills. There would usually be one factor in the best interests checklist of magnetic importance in reaching a decision. 

The best interests criteria which the courts are now required to apply include matters which may only apply after the person's death, as Mr Justice Munby made clear in Re M, ITW v Z and others [2009] WTLR 1791: 

'Best interests do not cease at the moment of death. We have an interest in how our bodies are disposed of after death, whether by burial, cremation or donation for medical research. We have, as Lewison J rightly observed, an interest in how we will be remembered, whether on a tombstone or through the medium of a will or in any other way. In particular, as he points out, we have an interest in being remembered as having done the "right thing", either in life or, post mortem, by will.'

D's application was refused. JC was obviously not interested in being remembered for having 'done the right thing'. Indeed, the judge found that he would probably relish being remembered for having done the wrong thing in respect of his children. His own views, as far as they could be interpreted, were that no one should have his money. In these circumstances, there was little or no best interests justification for JC's will being amended to include D. The refusal of D's application, was also based on a recently published Law Commission Report, Intestacy and Family Provision Claims on Death (Report Law Com No 331), which makes clear that there are no plans to change the law in respect of adopted children's rights of inheritance. The factor of magnetic importance in this case was that D had no relationship whatsoever with JC. Although the other children's relationships with him were strained and distant, there was nevertheless an established relationship.  

11 May 2012