Judge: Sir Mark Hedley
Citation:  EWCOP 51
This is the latest judgment concerning the life of H, for whom protective orders were previously made when she was 29 years old: A LA v H  EWHC 49. Seven years later, H had moved from a care home to a supported living arrangement which the court had been authorising. She had made considerable progress. She lived in her own flat inside a large house subdivided into flats, one of which was given aside to care and support staff, one of whom slept there at night. She was able, effectively, to organise her own life within that flat. She worked two days a week and was able to go out from time to time, but the reality was that there were still significant restrictions on her liberty engaging Article 5 ECHR.
Sir Mark Hedley was asked to reconsider the previous declarations of incapacity in light of H’s progress. The court agreed with the parties following an expert’s reassessment that H had capacity to engage in sexual relationships and to deal with issues of contraception, but lacked capacity as to residence, care and contact. Accordingly, his Lordship observed, “the court has no jurisdiction whatever to determine matters relating to consenting to sexual relations or contraception because H has capacity and she is entitled, as any citizen of this country is entitled, to make her own decisions for good or ill in relation to those matters” (para 17).
H met the judge in his chambers, accompanied by a care assistant, and her counsel and solicitor. She was keen for the restrictions to be withdrawn in due course but wanted “to take it slow”, and appreciated the security and support from her accommodation and care arrangements. In particular, she wanted to be able to choose with whom she had relationships and who became guests to her property. The judge focused therefore on the contact arrangements and made five general observations.
It followed from the course of action endorsed by Sir Mark Hedley the local authority has the power to maintain or monitor the list of welcomed visitors to H’s flat. They may provide for those times when a visitor should be in and out of the flat, but “once that visitor lawfully enters the flat and the front door is shut, the local authority have no further responsibilities for what then takes place. Those are matters entirely for H and the person who is in the flat with her” (para 34), unless of course H demonstrated distress. As for contact outside the flat:
This is a useful, practical illustration how of things might work on the ground when carers and public bodies are faced with a situation where someone has capacity to consent to sex but lacks capacity to make decisions in relation to contact. The court rightly calls a spade a spade in terms of coercive powers. After all, the law provides a defence to legal liability when acting in a person’s best interests. His Lordship stated: “[t]here is a great tendency in social work terms to hide coercion behind the façade of encouragement and, whilst that is no doubt very sensible in terms of talking to clients, in terms of the actual powers that the local authority have, coercive powers should be specified as such and identified as such and authorised as such” (para 39).
There was an issue as to whether the measures that cut across areas of capacity ought to be considered under the inherent jurisdiction (para 29). But it seems the decisions in this case were taken very much in the Court of Protection. That seems sensible as incapacitated best interests arrangements often cut across areas where the person has capacity. Having the capacity to manage day to day finances but lacking capacity as to contact with others is but one example. In this case, the judge was open as to whether the case should continue before a District Judge or otherwise (para 41).