Starter for ten

The Court of Appeal recently examined the overlap between Article 8 ECHR (the right to family life) and the Mental Capacity Act. The Court of Protection team at 39 Essex reports on an important ruling.

In K v LBX & Ors [2012] EWCA Civ 79 the Court of Appeal was asked to determine whether ECHR Art 8 respect for family life requires the court in determining issues under the inherent jurisdiction or the Mental Capacity Act 2005 to afford a priority to placement of an incapacitated adult in their family or whether family life is simply one of “all the relevant circumstances” which under MCA 2005 S4 the court must consider.

The question arose in the context of a case in which the local authority, supported by the Official Solicitor, considered that it was in the best interests of a learning disabled young adult to move for a trial period into supported living.

The father strongly objected to the proposal (despite agreeing that independent living was a goal for the future) and argued that since there was no issue of neglect, abuse or other harm, the existing family life which L shared with his father and brother should not be disrupted.

The father relied on the oft-quoted comments of Munby J (as he then was) in the case of Re S [2003] 1FLR 292, as demonstrating that the court’s starting point should be that L would be better off remaining with his family:

“48. I am not saying that there is in law any presumption that mentally incapacitated adults are better off with their families: often they will be; sometimes they will not be. But respect for our human condition, regard for the realities of our society and the common sense to which Lord Oliver of Aylemerton referred in In re KD, surely indicate that the starting point should be the normal assumption that mentally incapacitated adults will be better off if they live with a family rather than in an institution – however benign and enlightened the institution may be, and however well integrated into the community – and that mentally incapacitated adults who have been looked after within their family will be better off if they continue to be looked after within the family rather than by the State.

49. We have to be conscious of the limited ability of public authorities to improve on nature. We need to be careful, as Mr Wallwork correctly cautions me, not to embark upon ‘social engineering’. And I agree with him when he submits that we should not lightly interfere with family life. If the State – typically, as here, in the guise of a local authority – is to say that it is the more appropriate person to look after a mentally incapacitated adult than his own family, it assumes,as it seems to me, the burden – not the legal burden but the practical and evidential burden – of establishing that this is indeed so. And common sense surely indicates that the longer the family have looked after their mentally incapacitated relative without the State having perceived the need for its intervention the more carefully must any proposals for intervention be scrutinised and the more cautious the court should be before accepting too readily the assertion that the State can do better than the family. Other things being equal, the parent, if he is willing and able, is the most appropriate person to look after a mentally incapacitated adult; not some public authority, however well meaning and seemingly well equipped to do so. Moreover, the devoted parent who – like DS here – has spent years caring for a disabled child is likely to be much better able to ‘read’ his child, to understand his personality and to interpret the wishes and feelings which he lacks the ability to express. This is not to ignore or devalue the welfare principle; this common sense approach is in no way inconsistent with proper adherence to the unqualified principle that the welfare of the incapacitated person is, from beginning to end, the paramount consideration.”

The local authority and Official Solicitor argued that there was no starting point or other gloss on the clear words of the MCA 2005 which simply required decision-makers, including the court, to assess all relevant considerations.

The Court of Appeal (Thorpe, Black and Davis LLJ) rejected the father’s appeal. Thorpe LJ observed (para 31) that “whether in cases involving children or cases involving vulnerable adults principles and generalisation can rarely be stated since each case is so much fact dependent.” The right approach under the MCA 2005 was to “ascertain the best interests of the incapacitated adult on the application of the section 4 checklist. The judge should then ask whether the resulting conclusion amounts to a violation of Article 8 rights and whether that violation is nonetheless necessary and proportionate.”

Black LJ pointed out that giving priority to family life under Article 8 by way of a starting point or assumption “risks deflecting the decision maker’s attention from one aspect of Article 8 (private life) by focussing his attention on another (family life)...there is a danger that it contains within it an inherent conflict, for elements of private life, such as the right to personal development and the right to establish relationships with other human beings and the outside world, may not always be entirely compatible with existing family life and particularly not with family life in the sense of continuing to live within the existing family home.”

Comment

This important decision clarifies the role of the court in MCA proceedings and confirms that starting points or other generalised approaches are not appropriate. In every case the particular facts must be scrutinised with care, and proper regard given to considerations under Article 8 ECHR. It remains the case that if any person proposes to interfere with a person’s family life, they will need to show good reason for doing so, but decision-making should not be fettered by the adoption of assumptions which are not reflected in the MCA.

The decision is to be welcomed for a number of reasons. It should ensure that proper recognition is given to the right to private life of adults who lack capacity. Concepts of autonomy and self-determination have not, for obvious reasons, featured strongly in cases involving children, and there can be a tendency to rely on the approach taken in family proceedings even though the MCA concerns adults. Promoting autonomy and self-determination are clearly of much greater significance in relation to incapacitated adults.

While there are no doubt similarities between the functions of a judge in family proceedings and in MCA welfare proceedings, adults are not children, and caution is required in drawing analogies between the two groups, or assuming that approaches relevant to one group can be translated to the other.

This article was written by the Court of Protection team at 39 Essex Street.