Leicester City Council v MPZ



Judge: HHJ George

Citation: [2019] EWCOP 64

Summary

This case concerns the capacity/vulnerability interface between the MCA and the inherent jurisdiction and, crucially, the role of belief when determining capacity. Mary was 31 years old and was diagnosed with a learning disability and both emotionally unstable and dependent personality disorders. She was in supported accommodation and the court was determining her capacity to conduct litigation and to make decisions about her residence, care, contact, access to social media and the internet, to enter and surrender a tenancy and to consent to sexual relations. The case focused upon the impact of her personality disorders on Mary’s ability to decide.

HHJ George observed:

  1. … There is evidence of her rejecting as untrue, information given to her by professionals which is objectively true, and evidence of her accepting information from third parties as true, when it is objectively untrue. Dr Lawson said this is not a failure to understand the information, but a failure to believe it. He agreed that if Mary cannot assess the validity of information when it is given to her, she will not be able to use that information effectively due to her personality disorder. He also accepted that if Mary makes a decision about contact for example, on the basis of incorrect information because she does not accept or believe something that is objectively true, this affects her ability to make the decision about contact because the premise upon which the decision is being made, is wrong.

 

  1. I have been referred to the decision of MM [2007] EWHC 2003 (Fam) a decision of Munby J as he was then, in which he held that, “if one does not believe a particular piece of information then one does not, in truth, comprehend or understand it, nor can it be said that one is able to use or weigh it.” In other words, the specific requirement of belief is subsumed into the more general requirements of understanding and the ability to use and weigh information.

The local authority submitted that the personality disorders were causing Mary’s inability to believe relevant information which meant her decisions were on a false basis which was relevant to her capacity to make them. On behalf of Mary it was submitted that this “can only be the case where the failure to believe is the result of a disorder of the functioning of the mind or brain. Or, put another way, a capacitous person may make a decision because he does not believe evidence put before him (that evidence being demonstrably true). The fact he made a mistake does not make his decision incapacitous.”

Following further evaluation of the evidence, the court adopted the approach of Munby J:

  1. In his report, Dr Lawson sets out how this occurs: Mary has a pathological dependence on abusive relationships which causes her to reject the truth of information given to her. This means that she cannot consider satisfactorily the merit or demerits of information given to her in balanced manner. I accept that there is a contradiction in Dr Lawson’s evidence. He says Mary understands the relevant information given to her, but he also accepts that she does not always believe the relevant information. Having heard his evidence, I find that this is a difference in terminology rather than substance. The case law makes it clear that a failure to believe is a failure to understand and use or weigh in the context of the specific decision-making exercise engaged…

 

 

  1. Taking Dr Lawson’s evidence as a whole and considering how the personality disorders impact on all Mary’s decision-making, I have concluded that they do so distort her perception of the world, that she lacks MCA capacity in all domains…

 

  1. I conclude that this evidence, taken with her inability to understand relevant information in that she is not always able to believe the truth of what she is told, means the local authority has rebutted the presumption that Mary has capacity to make the range of decisions before the Court. Dr Lawson went further than saying it depended on the circumstances. His evidence was that the personality disorders are pathological and so distort her decision-making as to render her incapacitous. The evidence is that there is no room for a distinction to be made depending on who Mary is in conversation with. So pervasive and distorting are the disorders on the operation of her mind, that even with those with whom she is in a therapeutic or benign and caring relationship, her fear of damaging that relationship is so great that her capacity to make a decision is vitiated. (emphasis added)

Specifically in relation to Mary’s capacity to consent to sexual relations:

  1. Relevant to this consideration is the other point the local authority submitted to the Court, namely the proposition that Mary does not understand that she can say no to having sexual relations. In other words, she does not understand that sexual relations are consensual. If that is right, then that would render her incapacitous. The local authority relies on the evidence of Ms Clarke in this regard. Dr Lawson agreed that if the Court found that Mary did not understand that she had a choice about whether or not to engage in sexual relations, then this would render her incapacitous. In his evidence, he agreed with Ms Clarke that while Mary understood as a matter of theory that a person can say no to sex, she did not understand the choice when it related to her. I agree that this is what the evidence shows.

 

  1. I am therefore satisfied that Mary does not appreciate she has a choice as to whether or not to have sexual relations. The case law makes it clear that this must inform capacity, and so I conclude that the local authority has rebutted the presumption in this domain as well.” (emphasis added)

If she was wrong in this, HHJ George observed, would have held that Mary was vulnerable and invoked the inherent jurisdiction (paragraph 38).

Comment

Although the word ‘insight’ is not mentioned in the judgment, the issues discussed are very relevant to it. The MCA omitted a belief requirement but the approach of Munby J subsumes it within the statutory limbs of understanding, using and weighing. It seems odd to suggest that we cannot understand anything we do not believe. For we often disbelieve things that we understand. The key is the extent to which the “thing” is capable of being an objectively-proven “fact” or “truth”. The less certain the fact/truth is, the more careful we must be when determining whether the capacity assumption has been rebutted.

 

CategoryInherent jurisdiction, Medical Treatment - Assessing capacity Date

Keywords


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