A Local Authority v H



Judge: Sir Mark Hedley

Citation: [2019] EWCOP 51

Summary

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 [2012] 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 She was keen for the restrictions to be withdrawn in due course but wanted “to take it slow”, and appreciated the security and support from her accommodation and care arrangements.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.

  1. The court was being asked to grant to the local authority coercive powers: “granting certain coercive powers in respect of some incapacity may well involve those powers trespassing into areas in which the person does have capacity. This case will be a classic illustration of that. It is very difficult to devise powers in relation to those with whom H is to have contact that do not intrude on her ability to practice the freedom of consenting to sexual relations” (paras 25-26). She should have the maximum freedom that consenting to sexual relations is intended to bestow but, at the same time, the court was obliged to remember its protective role (para 28).
  2. Any restrictions must be necessary and proportionate “because they involve significant inroads into the Article 8 rights of H and, therefore, put her in a less favourable position than other people in the community would be in” (para 30).
  3. The court should confine its focus to those areas where compulsory powers are needed: “[a]lthough of course the court must approve the whole of the care plan, it is not the function of a Judge to tell the social worker how to do their job nor is it usually remotely helpful if they try to do so” (para 31).
  4. Any coercive powers should always be framed within the limitations of the area where P lacks capacity. So, in this case, “the coercive powers must not make any mention of the question of how sexual relations or anything else are exercised. They are simply not the court’s business. The court’s business is simply to deal with best interests arising out of the fact that H lacks capacity to decide with whom she should come into contact” (para 32).
  5. The intention of the MCA is not to dress P in forensic cotton wool but to allow them as far as possible to make the same mistakes that others are at liberty to make. So “[i]t is not the function of the court, it is not the function of the local authority to ensure that H lives a moral life. That is her business. It is only the function of the court and the local authority to regulate who it is she comes into contact with” (para 33).

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:

  • Again, it is important to say that the local authority may decide whether that is a person with whom H should have contact and they may decide where it is appropriate for H to have contact with such a person. What they may not decide is how H then behaves once that contact is authorised. That is for her and it is for her to make her own decisions for good or ill as to how she then conducts herself.” (para 37)  

Comment

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).

CategoryMental capacity - Assessing capacity, COP jurisdiction and powers - International jurisdiction, Mental capacity, Safeguarding Date

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