NB, Re (Consent to sex) [2019]- After 27 Years of marriage, did the Protected Party have capacity to marry and consent to sexual relations with her husband?

The Protected Party came to live in the UK in 1985 and married her husband in 1992. The marriage was contracted abroad. When the Protected Party first came to live in the UK she did so without her husband. There was a period in which the couple were separated whilst her husband made an application for permission to enter the UK, but in May 1996, the Protected Party travelled abroad to return to live with her husband. Following a series of applications to the Home Office throughout 1997, the couple came, eventually, to live together in London. They lived with the Protected Party’s parents and a year later their daughter was born.

The question was brought to the Court relating to the Protected Party’s capacity to marry and subsequent capacity to consent to sexual activity.

Mr Justice Hayden reviewed a letter to the Immigration Appeals department, that was brought before him by the Official Solicitor, dated March 1996, in which a clinical psychologist, Ms Suzanne Wilson, stated:

‘I believe Protected Party’s experience of her husband’s absence is stressful due to her attachment and affection towards him which has developed during their periods together. In her daily life the Protected Party consistently demonstrates her intense attachment to her husband. She often says his name with affection. She repeatedly asks where he is and pleads that he should be with her. She appears to understand the lasting nature of marriage, including that of marriage as a committed sexual bond between a man and a woman. It is my view that the Protected Party would be very unlikely to have such an affectionate attachment to her husband if this were not on a mutual basis and I therefore believe that her attachment can be taken as evidence of her husband’s positive attention and caring towards her when they are together’.

It is important to note that the Protected Party suffered from what is referred to as ‘general global learning difficulty’ and ‘an impairment’ in relation to her ability to communicate with others. She has been, at least historically, assisted using Makaton sign language and her sentences were limited.

As a result of a number of remarks the Protected Party made to her dentist, in October 2014, a safeguarding enquiry was instigated. There is no record of what it was that she said to the dentist, but it was clear that it had something to do with the quality of her relationship with her husband and it was such as to give rise to a concern that she might be vulnerable to sexual exploitation. Very quickly, an education programme was put in place focusing on sex education, relationships, contraception, sexually transmitted diseases as well as more general issues relating to Protected Party’s health.

The conclusion of the assessment was that the Protected Party was unable to demonstrate an appreciation of why people got married, separated or divorced. It was concluded that she lacked the mental capacity to marry. In respect of her capacity to consent to sexual relations it was considered that she lacked an understanding of the association between sexual intercourse and pregnancy. Inevitably, it followed, that she could not link various forms of contraception to the concept of averting pregnancy. She did not have the capacity to retain information in relation to these issues. It was also considered that she was unable to communicate the concept of refusal of sex to her husband.

The Protected Party’s husband was a man in his early 50’s who has never been in any trouble with the police. It was agreed that there had been no concerns expressed by any of the professionals in relation to his behaviour either more recently or historically.

The couple found themselves in a challenging situation in which their private and sexual life was being scrutinised by a variety of professionals. Whilst the Protected Party’s husband was being analysed, he appeared both frightened and embarrassed when he came to Court. On 29 March 2019, when the matter was brought to Court there had been an agreement between the Protected Party’s husband, the Applicant and the Respondent that the case would proceed by way of the Protected Party’s husband giving an undertaking to the Court not to sleep with his wife.

Mr Justice Hayden concluded that he was “Reserving Judgment in order that I can take the time to look carefully and in some detail at the case law and its applicability to the facts of this case. It would appear, that it requires to be said, in clear and unambiguous terms that I do so in order to explore fully Protected Party’s right to a sexual life with her husband and he with her, if that is at all possible.

If you have any queries, please do not hesitate to contact Georgia Clarke (georgia.clarke@clarionsolicitors.com) or the team at COPCosts@clarionsolicitors.com.

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Successful appeal against a Judge’s decision in respect of the Protected Party’s Deprivation of Liberty

In the case of CB v Medway Council & Anor (Appeal) [2019] EWCOP, the Official Solicitor appealed against a decision which justified the Protected Party’s Deprivation of Liberty.

The Protected Party was a 91 year old female, who no longer lived at her own property following a fall and persistent urinary tract infections. The Protected Party resided at a care home and was provided with a care package, which ultimately was said to have not worked out. The Protected Party’s litigation friend, the Official Solicitor, made an application to enable the Protected Party to reside at her own property, however, the Judge dismissed this application using her summary power.

The Official Solicitor disagreed with the decision of the Judge and therefore appealed the same. The Official Solicitor argued that the Judge did not abide by her duty to ensure that the Protected Party’s best interests were considered as the Judge had failed to allow the Official Solicitor to gather further evidence to support the argument in relation to the feasibility of the Protected Party returning to live at her property. The Court allowed the appeal as the Protected Party’s Deprivation of Liberty should have been considered and thoroughly explored, rather than the Judge dismissing the application based on speculation and general experience within similar cases.

If you have any queries, please do not hesitate to contact Casey McGregor or the team at COPCosts@clarionsolicitors.com

Changes in relation to CPR Practice Direction 21

From 6 April 2019, Practice Direction 21 of the CPR will be amended to make it compulsory for a bill of costs or a “informal breakdown in the form of a schedule” to be prepared and filed with any application for the approval of payment of expenses from the damages of a protected party or minor.

Many cases now settle by way of a JSM or Mediation. We recommend preparing a Bill of Costs for the JSM or Mediation in order to:

  1. Try and reach settlement of costs at the ADR meeting (to avoid the time and expense of detailed assessment);
  2. If a settlement on costs cannot be achieved, then to obtain a healthy payment on account; and
  3. Proceed swiftly post settlement with any application under CPR 21 (where applicable)The bill or schedule should make a clear distinction between inter partes and solicitor/own client costs. In terms of a schedule, we recommend preparing a statement of costs for summary assessment (Form N260 or N260B) which can be adapted, where appropriate.The bill or schedule will enable the Judge at the approval hearing to properly determine the appropriate amount to be deducted from damages, which may include (in terms of a Solicitor) a success fee, ATE insurance premium and any inter partes costs shortfall (if claimed).This blog was prepared by Andrew McAulay who is a Partner at Clarion and the Head of the Costs and Litigation Funding team. Andrew can be contacted at andrew.mcaulay@clarionsolcitors.com or on 0113 336 3334.

 

The Local Authority seeks orders to restrict the Husband’s contact with the Protected Party.

The case of SR v A Local Authority & Anor (2018), involves the Protected Party (SR), who was an 83-year-old woman who suffered from late onset Alzheimer’s, which was of moderate to severe intensity.

The Protected Party resides at a care home and lacks capacity to decide who she has contact with and to decide on any arrangements for such contact. The Local Authority raised awareness that the Protected Party may be at risk of harm in her husband’s sole care, due to his expressed views on euthanasia, which involved reference to throwing himself and his wife into a river and supplying her with tablets. The Protected Party’s husband also had restrictions placed on the care that he could provide to the Protected Party, such as having to be accompanied if he took her out of the care home. The Protected Party’s family wished for her to return home and the Protected Party has allegedly stated her wishes to be with her husband as she becomes distressed when he leaves her.

In determining whether the Protected Party would be at risk, the court reached the conclusion that the restriction sought by the Local Authority was neither justifiable, proportionate or necessary. They therefore declined to make the Order sought. It was believed that the Protected Party’s husband would most likely not harm the Protected Party, as he had been previously been with her many times unaccompanied. The Protected Party’s daughter also stated that her mother and her father were a happy and loving couple with no allegations of domestic violence ever having been made between them.

Impersonating a Protected Party grounds for imprisonment – Dudley v Hill

Court of Protection orders imprisonment of a Respondent for falsely impersonating the Protected Party and breaching an injunction.

In the case of Dudley Metropolitan Borough Council v Hill (2018), the Court of Protection made an Order for committal to prison after the Respondent was found guilty of impersonating the Protected Party and incurring costs on the Protected Party’s behalf without the authority to do so.

The Court of Protection were concerned for the Protected Party, both in relation to his health and welfare and also his property and financial affairs. There had been a provisional declaration made within the proceedings that the Protected Party lacked capacity. The Protected Party resided in his own home with his support workers, and the Local Authority were heavily involved in the matter.

The Protected Party was an 82-year-old man who suffered from dementia and the Respondent had been impersonating the Protected Party for a significant amount of time. The Respondent was served an injunction which forbid him to directly or indirectly contact the Protected Party or come within 100 meters of his property. The Respondent breached the injunction by attending the Protected Party’s property on 25th November 2017 and in January 2018, the Respondent fraudulently arranged for the installation of BT equipment without the required authority. Furthermore, the Respondent made a large number of telephone calls from the Protected Party’s property, which incurred unnecessary charges and proved that he had entered the Protected Party’s property.

The Respondent was required to attend a hearing, which was to determine whether he had breached the Order for injunction. The Respondent failed to attend the hearing and the Court then found him guilty as a result of the breach of the Order of injunction. The Respondent was sentenced to 4 months imprisonment, to be served concurrently.

If you have any queries, please do not hesitate to contact Casey McGregor or the team at COPCosts@clarionsolicitors.com

Various Incapacitated Persons, Re (Appointment of Trust Corporations As Deputies) [2018] EWCOP 3

Where concerns were raised when Trust Corporations apply as a Deputy for the Financial and Property affairs of a Protected Party.

A judgment was issued whereby the courts raised their concerns when considering an application that had been made to appoint a Trust Corporation as a Deputy, for the financial and property affairs of a Protected Party. Judge Hilder informed of the details required for the Court to be satisfied that the corporation is a fit and proper legal person to hold such appointment.

The case involved 36 applicants covering 11 different trust corporations, all of which are connected to solicitor practices.

The proposed Deputy (the Trust Corporation) is a Trust Corporation within the meaning of section 64(1) of the Mental Capacity Act 2005 and can lawfully act as such; and the Trust Corporation will inform the Office of the Public Guardian (OPG) immediately if that ceases to be the case.

The Trust Corporation will comply with the OPG’s published standards for professional deputies.

EITHER:

(i) The Trust Corporation is authorised by the SRA;

OR 

(ii) all the directors of the Trust Corporation are solicitors and it employs no one (save to the extent that it employs a company secretary); and

(iii) the Trust Corporation will retain its associated legal practice to carry out all practical work in relation to the management of the incapacitated person’s property and affairs; and

(iv) the Trust Corporation is covered by the professional indemnity insurance policy of its associated authorised legal practice on the same terms as that practice;

The Trust Corporation will notify the OPG immediately, if there is any change to any of the matters set out in paragraph 3 above.

The Trust Corporation must also ensure that it obtains and maintains insurance cover..

The Trust Corporation will lodge a copy of the insurance policy with the OPG on appointment and will inform the OPG immediately if there is any reduction in the terms or level of the insurance cover.

The note offered some explanations as to why a law firm might chose to create a Trust Corporation, these include:

  1. A Trust Corporation is designed to increase flexibility and improve services for clients. By creating a Trust Corporation, you can streamline the administration of estates and trusts to provide greater flexibility in the day-to-day administration of the files that it handles.”

From the Protected Party’s perspective, the benefits of appointing a Trust Corporation include:

1. Continuity – new trustees are never needed as a Trust Corporation never dies, goes on holiday, gets ill or retires. This can create substantial savings in professional fees: each time an individual trustee retires and a new trustee appointed, a deed needs to be created and the assets of the trust have to be transferred, whereas with a Trust Corporation, the appointment and retirement of directors will not affect the assets within particular trusts.

2. Availability – individual trustees aren’t always available due to holidays and other commitments, but a Trust Corporation will always be available.

3. Professionalism – Trust Corporation signatories will be senior members of the private client department of the firm who deal with trusts and estates every day.”

These identified benefits are procedural or financial. Whilst these are important, they are not the only aspects to consider. It was explained in the judgment that “each case will be different but Deputyships generally also require an appropriate person-to-person interaction with the protected person and often their family. Considered from that perspective, it can be seen that the benefit of continuity accrues also to the law firm – a client is retained for the long term, even if the individuals familiar with the case change firms.

Conclusion

A Trust Corporation can apply to be on the Office of the Public Guardian’s panel of deputies, but there is no ‘panel’ of Trust Corporations which have demonstrated compliance with legal requirements to act. Information necessary to satisfy the Court as to suitability must therefore be ’built into’ the application process itself.

 If you have any queries, please do not hesitate to contact Georgia Clarke (georgia.clarke@clarionsolicitors.com) or the team at COPCosts@clarionsolicitors.com.

 

The Hospital Trust v V & Ors [2017] EWCOP 20 (20 October 2017)

The Protected Party is 21 and suffers from a severe learning disability. She has an ‘understanding‘ age of about 3-5 years. She conceived a child in late 2015, by means which in all probability amounted to rape. The perpetrator of the sexual assault remains unknown by neither the family or the Protected Party. In 2016, she gave birth to a child that was placed in foster care.

At 28 weeks pregnant, the Health Authority sought the authority of the Court of Protection to arrange the delivery of the baby by caesarean section; Newton J made the relevant order in August 2016, and the baby was born on the following day.

The father of the baby is unknown. The circumstances of the conception were undetermined although it is believed that the father may be a friend of one of the Protected Party’s brothers. There is professional agreement that the Protected Party did not have the capacity to consent to sexual intercourse.

The Protected Party was confused and distressed at the pregnancy and confinement, and immensely distressed when her baby was removed from her care, pursuant to emergency orders obtained under Part IV Children Act 1989. Professionals speak of an extreme reaction to these events: a “significant physical and psychological trauma“.

An Application was made to the Court of Protection in 2016 for best interests determinations relevant to ante-natal care, and the delivery of the baby. The issues before the Court now are:

  1. i) Whether the Protected Party has the capacity to consent to sexual relations:
  2. ii) Whether she has the capacity to agree to the administration of non-therapeutic contraception;

iii) Whether it is in the Protected Party’s best interests that she receives non-therapeutic contraception.

All parties shared a strong common objective to protect the Protected Party from further harm, and specifically from sexual exploitation and pregnancy. However, they differ as to the means by which this can, or should, be achieved.

The Applicant, The Hospital Trust (“the Health Authority“), supported by the community learning disabilities team of the relevant Local Authority (“the Local Authority”) contend that it is in the Protected Party’s best interests that she should be provided with contraception as part of a wider safeguarding package, that should be trialled for a number of months.

Any medical intervention she found traumatising and she was scared. Though physically she healed well after the baby, the removal of the baby had a devastating effect on her emotional and psychological welfare. She could not understand where the baby was and was constantly asking for her baby. She was physically lashing out at her mother, self-harming, not sleeping, not eating, throwing herself on the floor and the community care officer took her to the GP and she got anti-depressants.

Following the delivery of the baby, professional attention swiftly turned to the formulation of a plan to prevent a recurrence of the pregnancy. Attentions turned to educating the Protected Party about sexual health. The Official Solicitor acting on the Protected Party’s behalf indicated that contraception was not necessary, and that the safeguarding package is sufficient to protect her.

The safeguarding plan appears to have been broadly successful, however, there have been a number of lapses of the safeguarding plan over the last 12 months. These lapses are admitted by the parents. They included leaving the Protected Party alone with her male siblings, on a number of occasions, which was against the safeguarding policy that had been decided upon.

Best interests

There is disagreement between the advocates as to the correct approach to the best interests of the Protected Party and a number of questions were raised:

i) Is it in the Protected Party’s best interests that she receives contraceptive protection?

ii) If so, what form of contraception is in her best interests, as the less restrictive option?

iii) If contraception is in her best interests, is it in her interests that such contraception is first trialled?

iv) Would the benefits of the contraceptive outweigh the negatives with regards to the best interests of the Protected Party?

It was decided that the Health and Local Authorities say that the safeguarding plan has been robust, but that contraception offers an important additional level of safeguard in the event that the plan fails.

The authorities argue that contraception will materially reduce the risk of pregnancy yet further. The social worker summarised the position in her oral evidence thus:

Even though I believe that the plan is robust and the family are working with us, breaches are still happening, and the last two breaches, the parents did not even know of the Protected Party’s whereabouts.”

They continued, “this will give us an extra layer of protection, in the event that anything goes wrong, or not within the family’s control. However, it was agreed by all that the Protected Party would need assistance in administering the contraception and charts would be created monitoring the menstrual cycle of the Protected Party.”

In considering all the issues raised, the views of the Protected Party were taken into consideration. The Protected Party demonstrated a “clear ability to learn“, and had an understanding of certain forms of contraception, is able to identify these and is “able to demonstrate the part of the body where each contraceptive is used.” The following were considered:

i) She does not wish to become pregnant again, or to have further children;

ii) She wishes to avoid surgery;

iii) She does not want intrauterine contraception;

iv) She would favour the patch (the view formed by the community matron.)

Following a number of reviews, it was concluded that the Protected Party had limited understanding of the “patch” and the link to pregnancy.

Judgment

By noting that the Protected Party is not sexually active, had no boyfriend, and that the proposed administration of contraception is non-therapeutic. It was judged against making a decision that is unfavourable and is one that respects the Protected Party’s Article 8 rights, and maintains clear focus on what is best for the Protected Party’s, striking the balance between protection and empowerment.

I return to the point I made at the outset of this judgment: the combined objective of the parties to ensure that the Protected Party is protected from further harm. The Local Authority considers that the safeguarding plan is “as robust as it can be”. Although The Protected Party’s mother has deposed in her signed statement to the fact that her daughter “… is never alone, she comes everywhere with me”, this has been shown – even very recently – not to be true.

The fact that the protection plan would remain unaltered whether contraception is administered or not does not mean, that there are not real advantages to the Protected Party receiving contraception. The safeguarding plan is designed to reduce the risk of sexual exploitation particularly outside of the home; contraception is proposed to reduce the risk of pregnancy in the event that the plan fails. If this additional safeguard can be introduced without undue side effects, and is a safeguard which the Protected Party is not unwilling to accept, then the best interests balance tilts in favour of its use.”

The prospect of any medical intervention, even the simple task of being weighed and measured in a clinic, and of blood pressure being taken, has left the Protected Party “petrified” in the recent past. It is vital for the court to reduce the need for such medical interventions.

It was decided that it may be that the side-effects of the patch are uncomfortable to the Protected Party in that regard and that the disbenefits of the contraceptive patch outweigh the benefits. This will only be known after a trial of the patch. At the conclusion of the trial period, or at an earlier time, should it become clear that the contraceptive patch is not appropriate, a best interests’ meeting will be held, at which a decision will be taken as to whether it is right to continue with the patch or whether an alternative method of contraception should be attempted, or whether the likely disbenefits of continuation or of any other form of contraception outweigh the benefits.

It was declared that it was in the Protected Party’s best interests that a contraceptive patch be administered for a trial period of up to six months. I shall list the case for review to coincide with the end of the trial, when further decisions can be taken.

I wish to make clear that this decision is about the Protected Party, and her best interests; the decision is taken in the context of her unique situation. I wholly reject the submission on behalf of the Official Solicitor that by declaring contraception in the Protected Party’s best interests I would in one way or another be setting a precedent for all incapacitous and vulnerable women.”

If you have any queries, please do not hesitate to contact Georgia Clarke (georgia.clarke@clarionsolicitors.com) or the team at COPCosts@clarionsolicitors.com.