The MCA in Practice: Sex, Marriage and Deprivation of Liberty. FENELLA MORRIS 39 Essex Street

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1 The MCA in Practice: Sex, Marriage and Deprivation of Liberty FENELLA MORRIS 39 Essex Street Tuesday 22 nd April 2008

2 1. Sex and marriage 1.1 The MCA framework S27 MCA expressly excludes decision-making on behalf of P in respect of marriage, civil partnership or consent to have sexual relations S16 MCA expressly includes the court s decision-making powers in relation to social welfare such as residence and contact Paragraph 4.32 MCA Code when cases come before the Court Judges can adopt the new definition of capacity if they think it is appropriate i.e. Judges in divisions other than the CoP may adopt the definition if it is appropriate having regard to the established common law (Local Authority X v MM and KM [2007] EWHC 2003 (Fam) at paragraph 80) 1.2 The differing tests of capacity The test of capacity to consent to sexual intercourse Understanding the nature and character of sexual intercourse Understanding the reasonably foreseeable consequences of sexual intercourse Ability to choose or refuse intercourse (X City Council v MB, NB and MAB [2006] EWHC 168 (Fam), [2006] 2 FLR 968 at paragraph 84 and The London Borough of Ealing v KS, LU, MHAS and SR [2008] EWHC 636 (Fam)) Does not relate to sexual intercourse with a particular partner (MM relying upon E below at paragraph 86 87) Does relate to particular sexual activity (MM at paragraph 86 87) Desirable that civil and criminal law tests for capacity to consent to sexual intercourse should match (MM at paragraphs 88 89) But section 30 of the Sexual Offences Act 2003 a person may lack capacity in the relevant sense not just on the grounds outlined above but for any other reason See also the BMA/Law Society joint guidance contained in Assessment of Mental Capacity: Since there is no specific test designed to cover consent to sexual relations in the context of the civil law concerning a person s private rights, where a test 2

3 of capacity is needed the general two-stage test of capacity set out in the case of Re MB would be the relevant one 1 It is also important that the particular circumstances of the individuals involved are taken into account it should also be noted that different considerations apply in determining capacity to give valid consent of the criminal law, and particularly where it is alleged that a sexual offence has taken place The following factors may be relevant to an assessment of individuals capacity to consent to sexual relations: Their understanding of what is involved in sexual intercourse Their knowledge (at a basic level) of the risks of pregnancy and sexually transmitted diseases The kind of relationship they have (for example, if there is a power imbalance) The pleasure (or otherwise) which they experience in the relationship (p99-100) Should not confuse capacity with best interests (KS above) The test of capacity to marry Ability to understand the nature of the marriage contract Ability to understand the duties and responsibilities that normally attach to a marriage Does not relate to marriage to a specific partner (Sheffield City Council v E [2004] EWHC 2808 (Fam), [2005] Fam 326 at paragraphs 83-85) Does usually require capacity to consent to sexual intercourse (MB) However, a marriage may be lawful in Sharia law even when the individual concerned does not have capacity to marry (City of Westminster v IC, KC and NNC [2007] EWHC 3096 (Fam) at paragraphs 54 61, approved by the Court of Appeal) Nevertheless such a marriage may not be recognised as a marriage under English civil law (IC at paragraph ) The test of capacity to make decisions as to residence and contacts Understanding of information relevant to the decision, including the level of care available, the psychological and emotional benefits, the risk of harm or distress, advantages and disadvantages generally 1 This is now the 3-stage test applied in respect of other decisions in these proceedings. 3

4 Retention of the information in order to make a decision Ability to weigh the information in order to come to a decision Ability to communicate the decision (Re MB, and s3(1) MCA and MM at paragraph 77-78) Resolution of conflicting different capacities No necessary dissonance between the lack of capacity to consent to contact and capacity to consent to sexual relations. The former is a potentially complex concept involving a range of considerations arising in the context of a potentially wide variety of situations, for example, from having a cup of tea from someone to going away with them for a long holiday, whilst the latter is often, and of its very nature, much less complex. (MM at paragraph 95) 1.3 The ECHR The guarantee of right to respect for private and family life in Article 8 includes the right to define one s inner circle (Niemitz v Germany (1993) 16 EHRR 97 at paragraph 29) This implies an interest in determining oneself with whom one establishes and/or continues a relationship (MM at paragraph 106) It should be borne in mind that Article 8 only protects that which is benign in private life (Re F [2001] Fam 38 at 57) Where there is a conflict between Y s rights and X s rights, but X lacks capacity, then the question of whether X and Y should have a relationship must be determined in X s best interests (MM at paragraph 107) The positive obligation imposed on the State by Article 8 may require interference in an individual s life in order to protect an individual s Article 8 right not to have a relationship (MM at paragraph 110) but only to the extent that it is necessary (at paragraph 112). Therefore it is said that the Court should only intervene where there is a need to protect from abuse or the real possibility of abuse (at paragraph 118). The wishes of the incapable adult are one of the most important factors (MM at paragraph 121). Any public authority that interferes with an individual s sexual life faces a heavy burden (MM at paragraph 159). There may be a positive obligation to facilitate sexual contacts on a local authority which by its actions is otherwise limiting them (MM at paragraph 163). Although restrictions on contacts may be used to limit 4

5 the risk of sexual exploitation where there is a marginal capacity to consent to sexual intercourse (SK above). 1.4 Strategies for avoiding abuse Using a declaration of lack of capacity to consent to sexual intercourse as a long term anti-abuse strategy Injunction preventing removal from the jurisdiction The vulnerable adults jurisdiction: a sufficiently flexible remedy to evolve in accordance with social needs and social values with no theoretical limit including companionship (A Local Authority v MA, NA and SA [2005] EWHC 2942 (Fam) at paragraphs 43 and 45) 2. Deprivation of liberty 2.1 The definition of deprivation of liberty Free to leave the test in DE DE was deprived of his liberty at the home because he was not free to leave (paras. 77 and ). It was accepted that DE was not subject to the same degree of invasive control as HL in Bournewood but he was nevertheless deprived of his liberty The JCHR Fourth Report dated 4 February 2007 Difficulties with the definition of deprivation of liberty meant that it should be defined in the then Mental Health Bill. It suggested the following: if it is known that a person will be taken from their home to a place where they will be prevented from leaving, and complete and effective control will be exercised over their movements, that person is deprived of their liberty from the point of removal from their home (at paragraph 89) The MCA Code It is difficult to define the difference between actions that amount to a restriction of liberty and those that result in a deprivation of liberty. In recent legal cases, the European Court of Human Rights said that the difference was one of degree or intensity, not one of nature or substance. There must be particular factors in the specific situation of the person concerned which provide the degree or intensity to result in a deprivation of liberty. In practice, this can relate to: 5

6 The type of care being provided How long the situation lasts Its effects, or The way a particular situation came about. The European Court of Human Rights has identified the following as factors contributing to deprivation of liberty in its judgments on cases to date: Restraint was used, including sedation, to admit a person who is resisting Professionals exercised complete and effective control over care and movement for a significant period Professionals exercised control over assessments, treatment, contacts and residence The person would be prevented from leaving if they made a meaningful attempt to do so A request by carers for the person to be discharged to their care was refused The person was unable to maintain social contacts because of restrictions placed on access to other people The person lost autonomy because they were under continuous supervision and control The Draft Code under the MHA 2007 Seems to reintroduce the multifactorial test laid down by the ECHR: In establishing whether deprivation of liberty arises, it is necessary to consider all the circumstances of each case. It is not possible to say that any single factor alone would always or could never amount to a deprivation of liberty. Therefore no simple definition can be produced that would apply in every case.... The physical or psychological effects of illness or disability alone would not in themselves mean that a person is being deprived of their liberty. 6

7 ... The fact that restrictions may be justified because they are necessary for the person s safety does not prevent them from leading to a deprivation of liberty in ECHR terms.... Based on existing case law, the following factors may be considered by the courts to be relevant when considering whether or not deprivation of liberty is occurring: o The person is not allowed to leave the facility. o The person has no, or very limited, choice about their life within the care home or hospital. o The person is prevented from maintaining contact with the world outside the care home or hospital The latest case law Deprivation of liberty found in City of Sunderland v PS and others [2007] EWHC 623 (Fam), [2007] 2 FLR 1083 Deprivation of liberty not found although it was near the borderline in LLBC v TG and others [2007] EWHC 2640 (Fam) at paragraphs : he was in an ordinary care home with ordinary restrictions his contacts were largely unrestricted he was compliant and happy at the home he was not objectively deprived of his liberty the fact that some members of his family opposed the placement was not sufficient to render it a breach of Art The authorisation of deprivation of liberty In PS the Court held that there were the following requirements for authorization: The deprivation of liberty must be authorised by the court by the making of an application by the public authority before the deprivation commences. This is because Art. 5(1) requires that any deprivation must be in accordance with a procedure prescribed by law. 7

8 There must be evidence of unsound mind of a kind or degree that warrants compulsory confinement. This is to fulfill the requirement of Art. 5(1)(e) as explained in the case of Winterwerp v The Netherlands [1979] 2 EHRR 387. It is imagined that this will usually be medical evidence, except in the most urgent cases. There must be provision for adequate review at reasonable intervals, in particular with a view to ascertaining whether there still persists unsoundness of mind of a kind or degree warranting compulsory confinement. This is because Art. 5(4) requires that a person who is deprived of his liberty must have the right to take proceedings by which the lawfulness of his detention shall be decided speedily by a court, and his release ordered if detention is not lawful, but also because any unsoundness of mind relied upon to justify deprivation of liberty must be found to be persisting. The court needs to take responsibility for arranging the review since the person of unsound mind cannot be expected themselves to take the initiative in seeking a review (Winterwerp supra). Judgment in another case setting out guidelines for the review process is awaited. Deprivation of liberty not authorised even though placement in clinical best interests in recent extempore judgment of Macfarlane J. 2.3 The relationship between the MCA 2005 and the MHAs 1983 and 2007 The MCA does not expressly contemplate the authorisation of deprivation of liberty by the court, and so does not expressly impose any restrictions on its functions in this regard. The MCA Code does touch upon the topic in Chapter 6, although its guidance is not absolutely conclusive: Sometimes there is no alternative way to provide care or treatment other than depriving the person of their liberty. In this situation, some people may be detained in hospital under the Mental Health Act 1983 but this only applies to people who require hospital treatment for a mental disorder (see chapter 13). Otherwise, actions that amount to a deprivation of liberty will not be lawful unless formal authorisation is obtained. The Code does not say whether or not an application to the court could lead to formal authorisation. A question arises as to which statutory regime should take precedence when seeking authorisation the MCA or the MHA The MCA Code states: 8

9 Before making an application under the MHA, the decision-makers should consider whether they could achieve their aims safely and effectively by using the MCA instead. Decision-makers should consider using the MHA if, in their professional judgment, they are not sure it will be possible, or sufficient, to rely on the MCA. They do not have to ask the Court of Protection to rule that the MCA does not apply before using the MHA. It might be necessary to consider using the MHA rather than the MCA if: it is not possible to give the person the care or treatment they need without carrying out an action that might deprive them of their liberty the person may need to be restrained in a way that is not allowed under the MCA But it is important to remember that a person cannot be treated under the MHA unless they meet the relevant criteria for being detained people can only be detained where the relevant people agree that an application [under the MHA] is necessary (normally two doctors and an approved social worker) By MHA 2007 authorisation of deprivation of liberty will not be available where the incapable person could be detained under the MHA 1983 (paragraph 5 of Part 1 of Schedule A1 and paragraph 12(1) of Part 2 of Schedule A1) But paragraph 12 then mysteriously provides that: (3) If the grounds in section 2(2) of the Mental Health Act are met in P s case, it is to be assumed that the recommendations referred to in section 2 (3) of that Act have been given. (4) If the grounds in section 3(2) of the Mental Health Act are met in P s case, it is to be assumed that the recommendations referred to in section 3(3) of the Act have been given. (5) In determining whether the ground in section 3(2)(c) of the Mental Health Act is met in P s case, it is to be assumed that the treatment referred to in section 3(2)(c) cannot be provided under this Act. 9