At capacity

The financial and welfare jurisdictions at the Court of Protection (CoP) are often viewed as being entirely distinct. The distinction is underlined by the different case progression pathways set out for each. However, the reality is that except in very unusual cases, welfare decisions cannot be made without considering what financial resources are available to P, and financial decisions should almost never be made without considering how the decision may impact on P’s welfare.

Increasingly, practitioners are finding the two elements very difficult to unwind from each other; a situation that has been recognised judicially on many occasions, and also in the recent guidance by the Office of the Public Guardian in respect of the disclosure of medical records to financial deputies and attorneys. This article explores key welfare decisions from 2021 that will impact all mental capacity professionals, in chronological order. 

Review of litigation capacity

Re P [2021] EWCOP 27 (30 April 2021)

Section 1(2) of the Mental Capacity Act 2005 (MCA) states that a person is assumed to have capacity unless it is established that they lack capacity. The burden of proof is on the person or body claiming that a person lacks capacity, and the standard of proof is on the balance of probabilities (section 2(4) of the MCA). 

Conducting litigation is not simply a question of providing instructions to a lawyer and then sitting back and watching the case unfold. “Litigation is a dynamic transactional process, both prior to and in court, with information to be recalled, instructions to be given, advice to be received and decisions to be taken, potentially on a number of occasions over the span of the proceedings as they develop”: B and KB v LH (Capacity to Conduct Proceedings)[2019] EWCOP 14 at paragraph 27.

In Masterman-Lister v Brutton & Co (Nos 1 and 2) [2002] EWCA Civ 1889, it was stated that litigation capacity required the ability to recognise a problem; to obtain and receive and understand relevant information about it, including advice; the ability to weigh the information (including that derived from advice) in the balance in reaching a decision; and the ability to communicate that decision (paragraph 28).

Mr Justice Mostyn noted that “I am of no doubt that the level of capacity to conduct litigation is set relatively high. Litigation, even so-called simple litigation, is a complex business. For virtually every case the substantive law, to say nothing of the procedural rules, is a daunting challenge and can be a minefield” (paragraph 29). In his opinion, a litigant needs the same level of capacity to conduct litigation whether or not she is represented.

Full case report can be found here.

Can a property and affairs deputy request direct payments?

Calderdale MBC v AB & ors (Order) [2021] EWCOP 56

In this case, the applicant was a professional financial deputy for AB. AB’s brother-in-law received AB’s direct payments, and managed them to fund a package of care, provided by AB’s siblings. The professional deputy applied to the CoP for clarification on the following two questions:

(i) Who may receive AB’s direct payments and manage them?

(ii) Must care providers funded by direct payments be registered with the Care Quality Commission?

In response to the first question, the court confirmed that where a person lacks capacity to request a direct payment themselves, an ‘authorised person’ may do so, and this is set out in section 32(4) of the Care Act 2014:

“(4) A person is authorised for the purposes of this section if –

(a) the person is authorised under the Mental Capacity Act 2005 to make decisions about the adult’s needs for care and support,

…

(c) where the person is not authorised as mentioned in paragraph (a) and there is no person who is so authorised, the local authority considers that the person is a suitable person to whom to make direct payments.”

Relying on the reasoning in Re ACC & ors [2020] EWCOP 9 at paragraph 53.7(c) that the role of a financial deputy “does not encompass determination of [AB]’s care needs”, the court determined at paragraph 5(f) in Calderdale that a deputy does not have the ability to make a “determination of care needs” and therefore they don’t have the right to “make decisions about the adult’s needs for care and support”. 

However, if the local authority considers that the deputy is a suitable person to make direct payments to, it can use its discretion to so do. Frustratingly, the second question raised was not addressed, being outside of the court’s jurisdiction. 

Full case report can be found here.

The importance of regularly reviewing advance decisions

Re PW (Jehovah’s Witness: Validity of Advance Decision) [2021] EWCOP 52 

This case considered what actions or inactions may be sufficient as to be “clearly inconsistent with the advance decision” as per section 25(2)(c) of the MCA.

In this matter, PW was an 80-year-old Jehovah’s Witness, who lacked capacity to make decisions about her medical treatment. She had signed a pro forma advance directive in 2001, in which she confirmed that she declined blood or blood products if her life was at risk. She suffered from a gastric tumour, and with appropriate treatment, including blood, she could live a further five to 10 years. PW had made a health and welfare lasting power of attorney (LPA) for her children in November 2020, but did not give them authority to make decisions about life sustaining treatment. If she had done, it would have automatically invalidated the advance decision.

The hospital sought judgment on whether the advance decision was still valid. Mr Justice Poole held that the advance decision was not valid and found the following things as being inconsistent with the advance decision remaining her fixed decision:

• PW had not referred to her advance decision in the LPA for health and welfare, suggesting it was no longer in the forefront of her mind
• removal of a do-not-resuscitate notice had been sought by PW at a former time
• she was not a committed Jehovah’s Witness and (according to her children) was only part of the faith to please her late husband
• her wishes and feelings when interviewed were to have clean blood to save her life, and
• PW had told her children in conversation that she wanted to be resuscitated. 

Taken collectively, the above changes were sufficient to show that PW had done something which was “clearly inconsistent with the advance decision”, and Mr Justice Poole concluded that it would be in PW’s best wishes to have a blood transfusion. Full case report can be found here. 

Forced marriage protection order

BU, Re [2021] EWCOP 54 (24 September 2021)

This concerned BU, a 70-year-old woman with a diagnosis of vascular dementia. These proceedings were brought by her daughter as a representative of her wider family members, because of their increasing concerns about the extent to which BU was vulnerable to harm as a consequence of her relationship with NC. Those concerns arose from their observations, confirmed by the expert evidence in this case, of the relationship BU had with NC which was characterised as one of coercive control exerted by him in several aspects of her day-to-day life, particularly in relation to the management of her financial affairs. 

The law relating to decisions relating to a person’s capacity to decide whether to maintain contact with another person (including the level of contact, or, indeed, the cessation of such contact) was considered in LBX v K, L and M [2013] EWHC 3230 (Fam) by Mr Justice Theis and, more recently, inRe B [2019] EWCOP 3 by Mr Justice Cobb. 

In relation to the test of capacity to marry, Mrs Justice Parker explained the principles in London Borough of Southwark v KA & ors [2016] EWCOP 20:

“76. The test for capacity to marry is also a simple one:

a) Marriage is status specific not person specific.

b) The wisdom of the marriage is irrelevant.

c) P must understand the broad nature of the marriage contract.

d) P must understand the duties

and responsibilities that normally attach to marriage, including that there may be financial consequences and that spouses have a particular status and connection with regard to each other.

e) The essence of marriage is for two people to live together and to love one another.

f) P must not lack capacity to enter into sexual relations.

g) The decision is about capacity and not welfare. Thus I do not take into account aspects of his decision making which affect the consequence of his decision making, so long as they do not affect the decision-making process in itself.

78. …….

79. It is not relevant to his understanding of marriage that he does not understand:

a) …

b) How financial remedy law and procedure works and the principles are applied. The fact that he might lack litigation capacity in respect of financial remedy litigation does not mean that he lacks capacity to marry.”

In the context of a civil partnership, the requirements are different from marriage. It is a legal process which requires a formal legal dissolution to bring it to an end. However, unlike marriage, there is no requirement for a civil partnership to be consummated for it to remain valid, whereas a marriage can be annulled in the absence of consummation. It can be formed between individuals in a non-sexual relationship, provided they do not fall within the categories of precluded relationships set out in schedule 1 to the Civil Partnership Act 2004. 

In the Court of Appeal, in Re K (Secretary of State for Justice and another intervening) [2020] EWCA Civ 190, [2020] 2 WLR 1279, Sir Andrew McFarlane made it clear that if a court is to override the capacitous wishes of a capable person who chooses to marry, it must be satisfied that there is a real and immediate risk of the subject of the application suffering inhuman or degrading treatment, so as to engage their article 3 rights under the European Convention on Human Rights.

This was a very sensitive matter, where a careful balance had to be drawn between protection for BU and respecting her rights. A useful matter for practitioners where there are concerns regarding possible marriage or civil partnership (and the distinction between the two), particularly where P has capacity to marry.

Full judgment can be found here.

Liability of care workers in arranging access to sexual services on behalf of another

Secretary of State for Justice v A Local Authority & ors [2021] EWCA Civ 1527 (22 October 2021)

This was a Court of Appeal judgment from the CoP, considered Mr Justice Hayden’s determination that care workers would not commit a criminal offence under section 39 of the Sexual Offences Act 2003 (SOA), were they to make the practical arrangements for a 27-year-old man (C) to visit a sex worker, in circumstances where he has capacity (within the meaning of the Mental Capacity Act 2005 (MCA)) to consent to sexual relations and decide to have contact with a sex worker, but not to make the arrangements himself.

The judgment is long and complex, but the decision was that “the arrangements for securing the services of a sex worker envisaged in the evidence before the judge would place the care workers in peril of committing an offence contrary to section 39”.

While the judgment relates to care workers, it should be read to extend to deputies. As was noted in the CoP judgment, this is something that professional deputies have historically facilitated, but going forward they should no longer do so.

Full judgment can be found here.

Consent and capacity to engage in sexual relations

It is not often that a mental capacity issue is decided in the Supreme Court. The judgment in A Local Authority (Respondent) v JB (by his Litigation Friend, the Official Solicitor) [2021] UKSC 52 is the subject of many articles in its own right. All professional deputies and attorneys should be aware of the decision. The questions that the decision addressed were:

• Does a person need to understand that their sexual partner must have the capacity to consent to sex? 
• Does a person also need to understand that their sexual partner must consent before the sexual activity starts and that their consent must continue throughout the sexual activity? 

JB was a 37-year-old single man with very impaired cognition, including a complex diagnosis of autistic spectrum disorder. He lives in a supported residential facility, and had long expressed a strong desire to have a girlfriend and engage in sexual relations. As a result of his previous behaviour towards women, the respondent local authority was of the view that it was not safe for JB to have unsupervised contact with women, leading to significant restrictions on his liberty, including 1:1 supervision at all times when in the community. It filed an application in the CoP seeking declarations as to JB’s capacity in various areas, including his capacity to consent to sexual relations. It was accepted between parties that JB understood the mechanics of sexual acts, the importance of his own consent, and the risks of pregnancy and sexually transmitted disease. Until this point, that would have been sufficient for him to have capacity to have sex, but an expert in the Court of Appeal confirmed that his “understanding of consent is lacking” when considering the consent of his chosen partner. 

The first instance decision in the CoP held that JB did have capacity to consent to sexual relations, as he passed the established test as set out in Re B [2019] EWCOP 3, and it was not necessary for a person to understand the need for their sexual partner’s consent to have capacity to have sex. The court was of the view that this requirement placed the bar too high. 

The Court of Appeal overturned this decision and held that to have capacity to engage in sexual relations, a person not only needs to understand that their sexual partner must have capacity to consent to the sexual activity, but also must consent to sexual activity before and during the sexual activity. The key change in wording by the Court of Appeal was from describing the test as being a test of capacity to “consent to sex” to being a test of capacity to “engage in sexual relations”, as the latter requires an understanding of your chosen partner’s circumstances and capacity.

The Supreme Court held that a reasonably foreseeable consequence of engaging in sexual activity included the potential criminal sanctions of failing to comply with the law, and also issues of public protection. It confirmed that for a person to have capacity to consent to sex, they need to understand that their sexual partner must also have the capacity to consent to sex. It confirmed that a person needs to understand that their sexual partner must consent before and throughout the sexual activity. 

Full judgment can be found here.

Conclusion

2021 was a hugely eventful year in respect of decisions impacting vulnerable people and those that lack mental capacity. Wider issues of public policy are playing an increasingly important role in how decisions are made on behalf of the vulnerable and those that lack capacity to make them for themselves. The outcome of this may be that those with mental capacity issues and vulnerabilities, and those that work with them, are subject to increasing levels of scrutiny and restriction. What is certain is that this is a fast-moving area of law, and practitioners in both the health and welfare, and property and affairs arenas need to remain very alive to developments on both sides of the fence, as it is not possible to view these elements of a person’s life in a silo.