In the best interest - part two

In the second of a three-part series on best interests decisions on personal welfare applications in the Court of Protection and the High Court over the last twelve months, Victoria Butler-Cole and Alex Ruck Keene examine important rulings covering the MCA 2005 and the Mental Health Act 1983, consent to sexual relations, use of the inherent jurisdiction for vulnerable adults, the interplay between the Court of Protection and judicial review, and jurisdiction.

Mental Capacity Act 2005 and Mental Health Act 1983

Two recent cases have considered the interrelationship between the MCA 2005 and the Mental Health Act 1983:

W Primary Care Trust v TB & Ors [2009] EWHC 1737

In this case, the applicant Primary Care Trust sought a declaration that TB was eligible to be deprived of her liberty at a particular establishment pursuant to an authority under the Mental Capacity Act 2005 s.4A. The care home was registered under the Care Standards Act 2000. The court was required to determine whether, assuming residential treatment at the care home was in TB's best interests as defined by the 2005 Act, depriving her of her liberty in order to provide that treatment could be authorised under s.16 or Sch.1A of the 2005 Act.

Roderick Wood J found that s.16A of the 2005 Act circumscribed the powers of the court to make a welfare order which incorporated an element of deprivation of liberty. If, by operation of s.16A, TB was ineligible to be deprived of her liberty under the Act, then the only option for detaining her would be under the 1983 Act. However, if that route were taken, she could not be detained at the care home because it did not accept patients under the 1983 Act. It was accepted that it would not be helpful to detain TB under the 1983 Act because the specialist treatment she required would not be available in mainstream psychiatric services. TB fell within "Case E" under Sch.1A para.2 of the 2005 Act. Therefore, she would be ineligible to be deprived of her liberty if the conditions in Sch.1A para.5 were met, namely that the relevant instrument authorised her to be a "mental health patient" and she objected to being a mental health patient.

The judge went on to find that, as the care home was not registered as an independent hospital, nor was it part of the NHS, it did not fall within the definition of a "health service hospital" in the relevant provisions of the 1983 Act. Therefore, the declaration sought by the PCT did not constitute a declaration or order seeking to have TB "accommodated in a hospital" as thus defined. Accordingly, she was not on that basis a "mental health patient" as defined under Sch.1A para.16 of the 2005 Act. Her detention at the care home fell outwith the categories of ineligibility under Sch.1A para.2. Therefore, an order under the Act could be made if there was sufficient evidence to establish her best interests construed in the light of all the circumstances.

GJ v The Foundation Trust [2009] EWHC 2972 (Fam)

The particular question posed by this case was how to determine whether someone was eligible to be deprived of their liberty under the MCA 2005 in a hospital, when they were potentially treatable under section (under the MHA 1983).

The judge stated that the MHA 1983 is the primary legislation, in the sense that if treatment is required and can be given under the MHA 1983, it is not for a professional to decide that it would be preferable to proceed under the MCA 2005. The relevant question is therefore whether the person would be detained in hospital for treatment for his mental disorder if it were not for the need for treatment of his physical disorder.

If the answer is yes, then the person falls within the scope of the MHA 1983, and the decision-maker must then ascertain whether he objects to the proposed deprivation of liberty. If he does, he will be ineligible to be deprived of his liberty under the MCA 2005. If the answer is no, the person is only being detained for treatment of his physical disorder not his mental disorder, then he is not a ‘mental health patient’ for the purposes of the MCA 2005 and so the ineligibility rules in Schedule A1 paragraph 5 do not apply to him.

As demonstrated by both of these cases, the relationship between the MHA 1983 and the MCA 2005 is complex, and the provisions of Schedule A1 to the MCA 2005 somewhat difficult to apply. Local authorities will need to be particularly careful about issuing authorisations under DOLS in respect of patients who may meet the criteria for sectioning under the MHA 1983.

Consent to sexual relations

In Re C [2009] UKHL 42 there was a criminal appeal concerning the correct interpretation of part of the Sexual Offences Act 2003. In the course of considering the criminal test for capacity to consent to sexual relations, the House of Lords also considered the judgment of Munby J (as he then was) in X City Council v MB [2006] EWHC 168 (Fam) which dealt with the common law test for capacity to consent to sexual relations.

Baroness Hale said that she was ‘far from sure’ that the comments expressed by Munby J in MB were correct, but the issue was not decided as the question of the correct common law test did not fall to be decided. Her comments however leave some doubt as to the correct approach for assessing capacity to consent to sexual relations under the MCA 2005.

Munby J had concluded in MB that the threshold for capacity to consent to sexual relations was very low – merely the ability to understand the nature of the act itself. Baroness Hale suggested that this approach failed to recognise properly the need for a person to be able to weigh up issues involved in making a decision. She gave the example of an individual who had delusions she was being commanded by God to have sexual intercourse: the individual might well understand the act, but not be deemed to have capacity to consent to it, in that she was not making an autonomous choice. Baroness Hale said that whereas Munby J had found that capacity to consent to sexual relations was not situation specific, ”in fact, it is difficult to think of an activity which is more person and situation specific than sexual relations” (para 27).

The implications of the judgment for local authorities may be important. In cases in which vulnerable adults whose capacity is in question are involved or may be involved in sexual relationships, it will be very important that those assessing capacity are familiar with both MB and R v C. Pending further clarification by the courts as to the appropriate test at common law, it may be prudent to apply the more stringent test suggested by R v C than to rely on the very low threshold set in MB.

Use of the inherent jurisdiction for vulnerable adults

In Re SA [2005] EWHC 2942 (Fam), the High Court said that in certain circumstances, adults without capacity could nevertheless be the subject of best interests decisions under the inherent jurisdiction. In SA, Munby J set out the nature of the court’s jurisdiction as follows:

“77. It would be unwise, and indeed inappropriate, for me even to attempt to define who might fall into this group in relation to whom the court can properly exercise its inherent jurisdiction. I disavow any such intention. It suffices for present purposes to say that, in my judgment, the authorities to which I have referred demonstrate that the inherent jurisdiction can be exercised in relation to a vulnerable adult who, even if not incapacitated by mental disorder or mental illness, is, or is reasonably believed to be, either (i) under constraint or (ii) subject to coercion or undue influence or (iii) for some other reason deprived of the capacity to make the relevant decision, or disabled from making a free choice, or incapacitated or disabled from giving or expressing a real and genuine consent.”

In Re JK (unreported, July 2009), however, the Official Solicitor argued that this jurisdiction was very limited and should only be exercised very sparingly.  The court declined to hold that the individual concerned met the test of being a vulnerable adult. It remains to be seen in which cases, other than those involving forced marriage (as was the case in SA) the High Court will be willing to exercise its inherent jurisdiction.

Local authorities should therefore be aware than where someone is judged to be a vulnerable adult, but does have capacity, it will not be a straightforward matter to obtain the intervention of the High Court in the form of a best interests decision. They should, in particular, be aware that the High Court may well only be persuaded to intervene to take such steps as are required to enable the vulnerable adult to take the decision in question without the external pressures identified by Munby J.

Interaction between Court of Protection and judicial review

The interaction and overlap between best interests proceedings and judicial review arises in many cases but has not been the subject of reported decisions. The issue can often arise where the family (or the Official Solicitor) wants substantial levels of support to enable the patient to remain living at home, whereas the local authority would prefer to fund a cheaper and simpler residential placement. Can the judge making the best interests decision consider whether the local authority’s proposals are lawful in public law terms?

Different judges appear to take different approaches to the problem. In best interests proceedings in the High Court, one judge in a case in which one of the authors was involved expressed the view that the best interests decision is simply a matter of choosing between available alternatives.

Any consideration of whether a particular care plan is lawful has to be carried out by way of judicial review, such that separate proceedings should be issued and then joined to the best interests proceedings so that both matters can be determined simultaneously and by the same judge. There is a clear overlap between the two matters, since if the grounds for judicial review of the care plan are that it fails to meet the individual’s assessed needs, or that those needs have not been properly assessed, this will have obvious implications for whether the proposed arrangements could be in the individual’s best interests.

Having obtained a best interests declaration, can a family member or the Official Solicitor rely on it to argue that a failure to implement the care plan approved in the best interests decision is irrational?

No doubt the fact of a best interests decision would assist any such claim for judicial review, but the Court of Protection cannot short circuit this issue by requiring a local authority to implement the solution it has identified as being in the individual’s best interests. It is likely that this issue will have to be the subject of a reported decision before too much longer, in particular as the financial pressures upon local authorities increase and it becomes more and more likely that local authorities involved in Court of Protection proceedings will seek on funding grounds to refuse to implement care plans endorsed by the Court.

Jurisdiction

Schedule 3 to the MCA 2005 relates to the international protection of adults. It may not have troubled many local authorities, but it has arisen in two cases in which one of the authors of this article has been involved.

In the first, Re P and OM, the High Court confirmed that the Court of Protection had jurisdiction in health and welfare matters over P, an incapacitated adult who had previously been resident in the United Kingdom but, subsequent to her loss of capacity through dementia, had been removed from the United Kingdom. This jurisdiction was founded upon the fact that paragraph 7(1)(a) of Schedule 3 gives the Court of Protection jurisdiction over an adult habitually resident in England and Wales, and the Court accepted that a person cannot change their habitual residence once they lose their capacity to determine where they wish to reside.

The second case is ongoing, and the Court of Protection is being asked to test the proposition from the opposite angle. A woman, originally British but previously resident abroad for many years, was brought to England after she lost the capacity to determine her residence through dementia; the Court of Protection will have to decide whether it has jurisdiction over her for any other purpose than for (1) putting in place a temporary and limited protective measure (Paragraph 7(1)(c)) or (2) giving effect to the protective measures taken in respect of the woman in a court in the country from which she was brought (under the provisions of Paragraph 19).

Victoria Butler-Cole (This email address is being protected from spambots. You need JavaScript enabled to view it. ) and Alex Ruck Keene (This email address is being protected from spambots. You need JavaScript enabled to view it. ) are barristers at 39 Essex Street.

Part one of this series can be read here.