Strand, London, WC2A 2LL
B e f o r e :
| IN THE MATTER OF THE MENTAL CAPACITY ACT 2014 AND IN THE MATTER OF TZ (NO. 2) A LOCAL AUTHORITY
|- and -
John McKendrick (instructed by CVC Solicitors on behalf of the Official Solicitor) for the Respondent
Hearing dates: 6th and 9th December 2013
Crown Copyright ©
The Honourable Mr. Justice Baker :
(1) What is the relevant decision in respect of which the question of capacity arises?
(2) Does TZ lack capacity in respect of that decision?
(3) If yes, what orders should be made in TZ's best interests?
(4) Should the court appoint the local authority to act as TZ's welfare deputy?
What is the relevant decision?
"The determination of capacity under MCA 2005 Part 1 is decision specific. Some decisions, for example agreeing to marry or consenting to divorce, are status or act specific. Some other decision, for example whether P should have contact with a particular individual, may be person specific. But all decisions, whatever their nature, fall to be evaluated within the straightforward and clear structure of MCA 2005, sections 1 to 3, which requires the court to have regard to "a matter" requiring "a decision". There is neither need nor justification for the plain words of the statute to be embellished. I do not agree with the Official Solicitor's submission that absurd consequences flow from a failure to adopt either an act-specific or a person-specific approach to each category of decision that may fall for the consideration. To the contrary, I endorse [the local authority counsel]'s argument to the effect that removing the specific factual context from some decisions leaves nothing for the evaluation of capacity to bite upon."
(1) whether TZ has the capacity to make a decision whether or not an individual with whom he may wish to have sexual relations is safe, and, if not,
(2) whether he has the capacity to make a decision as to the support he requires when having contact with an individual with whom he may wish to have sexual relations.
Does TZ have these capacities?
Further discussion and conclusion on capacity
What orders should be made in TZ's best interests?
"(1) This section applies if a person ("P") lacks capacity in relation to matter or matters concerning
(a) P's personal welfare or
(b) P's property and affairs.
(2) The court may
(a) by making an order, make the decision or decisions on P's behalf in relation to the matter or matters, or
(b) appoint a person (a "deputy"), to make decisions on P's behalf in relation to the matter or matters.
(3) The powers of the court under this section are subject to the provisions of this Act, and in particular, to sections 1, (the principles) and 4 (best interests)."
(1) the determination must not be made merely on the basis of a condition of his, or an aspect of his behaviour, which might lead others to make unjustified assumptions about what might be in his best interests: s.4(1)(b);
(2) the person making the determination must, so far as reasonably practicable, permit and encourage the person to participate as fully as possible in any act done for him or decision taken affecting him: s.4(4);
(3) the person making the determination must consider, so far as reasonably ascertainable, the person's wishes and feelings and the beliefs and values that would be likely to influence his decision if he had capacity: s.4(6).
"First, P's wishes and feelings will always be a significant factor to which the court must pay close regard . Secondly, the weight to be attached to P's wishes and feelings will always be case-specific and fact-specific . Thirdly, in considering the weight and importance to be attached to P's wishes and feelings, the court must have regard to all the relevant circumstances [which] will include (a) the degrees of P's incapacity (b) the strength and consistency of the views being expressed by P; (c) the possible impact on P of knowledge that [his] wishes and feelings are not being given effect to (d) the extent to which P's wishes and feelings are, or are not, rational, sensible, responsible and, pragmatically capable of sensible implementation in the particular circumstances; and (e) crucially, the extent to which P's wishes and feelings, if given effect to, can properly be accommodated within the court's overall assessment of what is in [his] best interests."
"A great judge once said, 'all life is an experiment', adding that 'every year if not every day we have to wager our salvation upon some prophecy based upon imperfect knowledge (see Holmes J in Abrams v United States (1919) 250 US 616 at 630). The fact is that all life involves risk, and the young, the elderly and the vulnerable, are exposed to additional risks and to risks they are less well equipped than others to cope with. But just as wise parents resist the temptation to keep their children metaphorically wrapped up in cotton wool, so too we must avoid the temptation always to put the physical health and safety of the elderly and the vulnerable before everything else. Often it will be appropriate to do so, but not always. Physical health and safety can sometimes be brought at too high a price in happiness and emotional welfare. The emphasis must be on sensible risk appraisal, not striving to avoid all risk, whatever the price, but instead seeking a proper balance and being willing to tolerate manageable or acceptable risks as the price appropriately to be paid in order to achieve some other good in particular to achieve the vital good of the elderly or vulnerable person's happiness. What good is it making someone safer if it merely makes them miserable?"
(a) Basic principles
(1) TZ lives at H Home. In due course, he may move to a step-down facility and, in the long run, into supported living.
(2) He will have available to him a number of hours of 1 : 1 support every week. Currently that is fixed at 32 hours.
(3) He has capacity to consent to and enter into sexual relations. He has the right to establish relationships with other human beings and wishes to meet other men with whom he may have sexual relations.
(4) He lacks the capacity to make a decision whether or not an individual with whom he may wish to have sexual relations is safe and the capacity to make a decision as to the support he requires when having contact with such an individual.
(5) The local authority and the Court are under a positive obligation to ensure that he is supported in having a sexual relationship should he wish to do so, but also to ensure, as far as possible, that he is kept safe from harm.
(6) The purpose of the plan is therefore to identify the support to be provided to assist him in developing a sexual relationship without exposing him to a risk of harm.
(b) Education and empowerment
(e) Decision-making - should a deputy be appointed?
"(4) When deciding whether it is in P's best interests to appoint a deputy, the court must have regard (in addition to the matters mentioned in section 4) to the principles that
(a) a decision by the court is to be preferred to the appointment of a deputy to make a decision and
(b) the powers conferred on a deputy should be as limited in scope and duration as is reasonably practicable in the circumstances.
(5) The court may make such further orders or give such directions, and confer on a deputy such powers or impose on him such duties, as it thinks necessary or expedient for giving effect to, or otherwise in connection with, an order or appointment made by it under sub-section (2)"
"5.8 Under the Act many different people may be required to make decisions or act on behalf of someone who lacks capacity to make decisions for themselves. The person making the decision is referred to throughout this chapter and in other parts of the Code as the "decision-maker", and it is the decision-maker's responsibility to work out what would be in the best interests of the person who lacks capacity.
- For most day to day actions or decisions, the decision-maker would be the carer most directly involved with the person at the time.
- Where the decision involves the provision of medical treatment, the doctor or other member of health care staff responsible for carrying out the particular treatment or procedure is the decision-maker.
- Where nursing or paid care is provided the nurse or paid carer will be the decision-maker.
- If a Lasting Power of Attorney (or Enduring Power of Attorney) has been made and registered, or a deputy has been appointed under a court order, the attorney or deputy will be the decision-maker, for decisions within the scope of their authority."
"8.31 Sometimes it is not practicable or appropriate for the court to make a single declaration or decision. In such cases, if the court thinks that somebody needs to make future or ongoing decisions for someone whose condition makes is likely they will lack capacity to make some further decisions in the future, it can appoint a deputy to act for and make decisions for that person. A deputy's authority should be as limited in scope and duration as possible "
"8.38 Deputies for personal welfare decisions will only be required in the most difficult cases where:
- important and necessary actions cannot be carried out without the court's authority or
- there is no other way of settling the matter in the best interests of the person who lacks capacity to make particular welfare decisions.
8.39 Examples include when:
- someone needs to make a series of linked welfare decisions over time and it would not be beneficial or appropriate to require all of those decisions to be made by the court. For example, someone (such as a family carer) who is close to a person with profound and multiple learning disabilities might apply to be appointed as a deputy with authority to make such decisions.
- the most appropriate way to act in the person's best interests is to have a deputy, who will consult relevant people but have the final authority to make decisions
- there is a history of serious family disputes that could have a detrimental effect on the person's future care unless a deputy is appointed to make necessary decisions
- the person who lacks capacity is felt to be at risk of serious harm if left in the care of family members. In these rare cases, welfare decisions may need to be made by someone independent of the family, such as a local authority officer. There may even be a need for an additional court order prohibiting those family members having contact with that person".