England and Wales Court of Protection Decisions

THE COURT OF PROTECTION

		The County Court Teeside Combined Court Middlesbrough
		15th November 2013

JUDGE HALLAM:

1. This case concerns the welfare of HP. She was born 1994, so she is now 19 years old. She is a young woman from a Muslim family. She suffers with a mild learning disability and challenging behaviour. The Local Authority have brought proceedings in respect of HP in the Court of Protection and seek final declarations that she lacks the capacity to, firstly, litigate; secondly, marry; thirdly consent to sexual relations; fourthly decide what care package to accept; fifthly, decide where to live and with whom; and, sixthly, decide to have contact with her family and others. It is now accepted by the Local Authority that it is not, in fact, suggested by anyone that HP is likely to wish to marry in the foreseeable future, or that any suitor is seeking to marry her. They now accept that it is not necessary for a declaration in respect of capacity to marry.
2. If the issue becomes of relevance in the future the Local Authority can make a fresh application to the court and it can be determined on the basis of the circumstances at the time and in particular on the basis of HP's cognitive functioning at the time.
3. Thus I make it clear that I do not make a declaration in regard to her capacity to marry.
4. The Local Authority also ask that the court should consider, firstly, whether authorisation should be granted as to HP's deprivation of liberty, and, second, a declaration as to the medical issues of contraception by Depo-Provera injection, and whether it continues to be in her best interest to be provided with such treatment.
5. In her childhood HP was subject of care proceedings which culminated in the making of a Care Order in 2011. I heard those proceedings. HP's parents were, of course, party to those proceedings. They are Mrs P and Mr P. They opposed the making of a Care Order. They are parties to the present Court of Protection proceedings and are both legally represented during the course of this hearing. They oppose the applications of the Local Authority because they wish HP to live with them. It is quite apparent that they do not accept the findings I made within the care proceedings. They also wish to have more contact with their daughter if she does not come home. They do not believe it is in her best interests to be prescribed contraception.
6. HP herself is represented by her litigation friend, the Official Solicitor. The Official Solicitor has filed a statement which, in broad terms, supports the Local Authority. He did, however, reserve his position in respect of a declaration in respect of HP's capacity to consent to sexual relations. That was as a result of the complexity of the expert evidence in relation to that issue.
7. I have heard evidence from Dr S, who is a consultant psychiatrist, who has had oversight of HP for some time, dating back to the time when the care proceedings were being contemplated by the Local Authority.
8. Following that evidence the Official Solicitor took the view that it would not be appropriate for a declaration in respect of capacity to consent to sexual relationships to be made, and I will return to that issue in due course.
9. The Court of Protection proceedings were commenced on 15th June 2012, HP having reached her majority on 15th May 2012.
10. Subsequent to the care proceedings HP was placed in a residential unit for children. That placement could not continue for any period of time once HP reached majority.
11. On 5th July 2012 District Judge Mainwaring-Taylor granted the Local Authority permission to make the application under S50(2) of the Mental Capacity Act 2005. At that time the learned district judge also made the following declarations pursuant to S48 of the same Act, that the court has reason to believe that HP lacks the capacity to, firstly, litigate; secondly, make decisions about where she should live; and, thirdly, make decisions as to her care.
12. By way of interim provision it was ordered that the Local Authority could take reasonable and proportionate measures to ensure that HP remained at any residential accommodation arranged by them and to return her to that accommodation if necessary.
13. On 17th September 2012 further additional declarations were made regulating HP's residence, and also that she lacked capacity to make decisions about contact with others. However, it was declared lawful, and in her best interests, to have contact with her mother and other members of the family, save for the father.
14. On 26th October 2012 further declarations and provisions were made by District Judge Mainwaring-Taylor, in particular that HP lacked capacity to make decisions about contraceptive treatment, but that she did have capacity to consent to sexual relations.
15. On 20th December 2012 I considered the contested issue of the provision of contraceptive treatment. Both parents opposed the provision of such treatment. They took the view that such treatment was contrary to their Muslim faith, they were of the view that HP should not be engaging in sexual relations before marriage, and that there should be no need for contraception given that she was receiving 24-hour care from the Local Authority.
16. The Official Solicitor supported the Local Authority's application at that time and at that time Dr S had assessed that HP did have the capacity to consent to sexual relations. It was planned that she should attend college. Although she had 2-to-1 support while in the community, she did have a history of absconding. Thus she needed protection from a pregnancy which would be harmful to her due to her mental-health problems. The method of contraception that was identified as the most effective by a family planning specialist was the Depo-Provera injection. I, accordingly, granted the interim order that it was in HP's best interests to have that treatment. That order was reviewed in March 2013.
17. There was a further hearing before me on 18th February 2013 to consider her move from a temporary placement to her current placement . I authorised that change of placement as being in HP's best interests.
18. In order to determine the issues before me at this stage I have read the trial bundles, and heard evidence from the social care coordinator responsible for HP, Dr S, consultant psychiatrist, and Miss Lagun, who is the independent social worker who was jointly instructed in these proceedings. The parents did not give evidence but full submissions were made on their behalf.
19. Looking first at the issues of capacity and first at the capacity to litigate, it is Dr S's uncontested evidence that HP lacks the capacity to litigate. This is because of her having a mild learning disability which Dr S characterises as an impairment or disturbance in the function of the mind or brain.
20. Dr S is of the opinion that HP does not even have a basic understanding of the issues in the case and the powers available to the court.
21. As I have said, Dr S's evidence is uncontested in that regard. I am satisfied on that evidence, and all the evidence I have read about HP, that a final declaration of lack of capacity to litigate should be made, and I, therefore, make one.
22. Secondly, capacity to decide about residence. Again, that is a matter that is covered by the uncontested evidence of Dr S. At interview HP gave the doctor a very clear description of the type of place in which she wished to live. She said she wanted to live in a brand-new house, without any other young people, that it should have a pink bedroom, a blue bathroom, and be near the seaside. However, she was unable to explain why she wished to live in such accommodation, other than to say that her favourite colour was pink and she liked going to the beach. She was not able to weigh up the positives and negatives of living in a particular environment.
23. Dr S tried to support HP in this area and undertook a balancesheet exercise with her. Despite that, HP's understanding did not improve.
24. In view of HP's difficulty in weighing up the positives and negatives of where she should reside, it is Dr S's opinion that HP lacked the capacity to make decisions in relation to her residence.
25. As I have said, that evidence is uncontested. I, therefore, make a final declaration that HP lacks the capacity to decide about residence.
26. In relation to her capacity to decide about a care package, again, Dr S's uncontested evidence is that by reason of her learning disability HP lacks capacity to decide her care. It is apparent from Dr S's interviews with her that she did not understand what support she requires with her daily life, she has limited understanding of her own vulnerabilities or the need for support in the community to ensure that she is not exploited by others, she had no understanding of her need to have support in matters of personal care, such as personal hygiene, nor did she show any understanding of what effect some of her behaviours, such as defecating in public, would have on others, or, indeed, herself.
27. I have been provided with extensive documents in connection with the care plan for HP. They include risk plans and a number of reports. Those documents extend to a great number of pages and contain many complex issues relating to all aspects of HP's care.
28. Given HP's fundamental difficulties in her understanding of her own needs and her inability to weigh up positives and negatives of any support package, as described by Dr S, I am satisfied that she lacks capacity to make decisions in relation to her care. Therefore I make a final declaration of lack of capacity in that respect.
29. Capacity to decide about contact with others. HP clearly is able to express her wishes in respect of contact with others. Indeed, for example, she has expressed a view at times that she does wish to have contact with her mother. At other times she has been quite clear that she does not. That is, without doubt, difficult for her parents to accept and understand. Because of that ability to express such views it was initially the view of the social care co-ordinator and others in the Local Authority that she did have capacity in that respect.
30. However, that was another aspect of the case that Dr S considered in her report for the court. Her opinion is that HP finds it difficult to judge whether another person may be a potential risk to her, and she said in relation to her family:

"HP is not able to weigh up the positives or negatives of not having contact with family members".

31. A further report, a capacity report, was commissioned by the Local Authority. It is dated 9th October 2013. It is provided by Dr J, who is a consultant clinical psychologist. That report concludes that HP would not be able to realistically use information to determine risks to herself in a given situation and generate possibilities for managing such risks and hence utilising this information as part of the decision-making process, and that as such she lacks capacity to decide about contact.
32. In my judgment the present evidence of Dr S and Dr J outweighs the initial view of the Local Authority, and I am satisfied that a final declaration should now be made as to her lack of capacity to decide about contact.
33. Capacity to decide about sexual relations. This has been one of the most troubling aspects of the case. The evidence in this respect is complex. One of the problems is that HP's mental state does fluctuate and at times her presentation and conduct is more disturbed than others. This means that her responses may change to different people at different times. An example of that is that an assessment made by a Miss H concluded that HP lacked capacity in this regard because, although she understood the anatomy of the male and female body, she had a restricted understanding of the physical act of sexual intercourse and had no understanding of contraception or pregnancy.
34. Miss H is described as a senior practitioner. However, there is no indication of what discipline her experience lies in.

In contrast, when Dr S saw HP a few days later in October 2012 she reached a different conclusion. She was of the view that HP had a basic understanding of human anatomy, that she could absorb that the age of consent is 16, that she understood that pregnancy is a result of sexual intercourse, and that infections can be transmitted during sex. Furthermore, she also understood that people may or may not like sex, and gave Dr S a clear indication that she could weigh up the positives and negatives of whether or not to engage in sexual behaviour. Thus at that time applying the Mental Capacity Act test under S 3, and recognising the considerations set out, for example, by Mostyn J in D Borough Council v AB [2011] EWHC 101 COP, that the relevant information in respect of being able to decide to engage in sexual relations is limited to, firstly, what the physical act consists of, secondly, the proximate consequences of intercourse, that is pregnancy or sexually-transmitted diseases, and, thirdly, its sexual nature and her awareness that she may exercise a choice and say "No" if she wished,applying all those it appeared to Dr S that at that time HP was able to weigh up the positives and negatives of engaging in sex, and hence the presumption of capacity was not rebutted.

35. However, Dr S went on to say that if HP's mental state was to deteriorate such that she was in a state of anxiety, then her ability to weigh up information and to think through the consequences of her actions would be detrimentally affected and she may then lack capacity. Further, Dr S was concerned that HP's ability to put into practice her knowledge may vary according to the circumstances in which she found herself. For example, if the potential partner caused her anxiety to a degree whereby she became so anxious she lost the capacity. Dr S distinguished that scenario from the one where she felt so intimidated she could not express her true choice despite having the capacity to make the choice.
36. In view of the uncertainty about HP's capacity in this regard, a further report was sought from Dr S closer to the final hearing, and there is a report dated 29th September 2013 before me.
37. Dr S also gave evidence in the hearing. It was quite apparent that at the time of the September 2013 report Dr S saw her and that HP's mental state had deteriorated. Her behaviour had regressed and she became less communicative with her carers. That behaviour had regressed to the degree whereby HP used no verbal language, although she did communicate with some gestures. Thus in that report Dr S found herself unable to assess HP's understanding of the relevant information due to her unwillingness to use verbal forms of communication. She went further and concluded that HP lacked capacity in relation to sexual relations due to her current unwillingness to use verbal language to communicate. That conclusion did not accord with the provisions of S 3(1)(d) of the Mental Capacity Act, which says that verbal communication to determine capacity is not necessary, the ability to use sign language or other means to communicate can suffice.
38. When Dr S gave evidence before me it became apparent that she had great difficulty in establishing where HP had capacity in relation to sexual relations at the time she interviewed her because of the difficulty in communication. Dr S was clear that HP's capacity in respect of sexual relations did fluctuate and she, therefore, recommended that an appropriate plan should be put in place to assess and re-assess her capacity in this regard at such times as the questions of sexual relations may be a relevant issue in HP's life.
39. In my judgment the evidence as a whole does show that HP's mental state does fluctuate and it is not always possible to determine the cause of that fluctuation. It is inevitable that her capacity in respect of sexual relations will fluctuate in tandem with her mental state. The capacity may sometimes be present and not at other times. I have, therefore, come to the conclusion that it would not be right to make a final declaration in this regard. I endorse Dr S's recommendation that there is an appropriate plan put in place to assess and re-assess HP's capacity in this regard at such times as the question of sexual relations may be a relevant issue in her life, and I direct that there is a preamble in the orders which I make today to reflect that.
40. I turn now to the best interests decisions, those are residence, contact, contraception and deprivation of liberty.
41. As far as residence is concerned, as I have already outlined, HP was subject of care proceedings. They were completed on 1st April 2011. At that hearing I made a number of findings of fact in respect of HP's life whilst in the care of her family. Those were never appealed. In brief I found that the treatment of HP within her family home had impacted upon her emotional and physical wellbeing.
42. In particular I found that her selective mutism had its root in her life at home and as a reaction to the care she was receiving there. I said that it was difficult to reconstruct accurately what was happening within the family home. That difficulty, I found, was due to the fact that HP's complex difficulties made it impossible for her to give an accurate description herself. That difficulty was manifestly compounded by her parents' inconsistent and contradictory accounts that they had given to the professionals, the police and the court.
43. I went on to say that, in my judgment, there was something very seriously wrong in the way that HP was being managed and treated at home. I was satisfied that there was a bleak and emotionally-corrosive environment at home for HP.
44. By the time she was removed from the parents' care I was satisfied that HP was isolated within the community and her home. She was not attending school. She was failing to eat and drink adequately. She was physically aggressive and she was selectively mute.
45. Having considered all the evidence I was satisfied that the parents failed to nurture HP and failed to meet her complex needs, both physically and emotionally. Those findings stand.
46. It is apparent from the parents' statements and the submissions made on their behalf that they do not accept those findings. Furthermore, it is clear that they have done nothing to change their attitudes. They wish to be able to care for HP at home now. They say they are able to manage her care with support. Furthermore, they are particularly concerned that the only way her cultural needs would be met is if she is in their care. They feel those needs are being neglected now.
47. Within these proceedings an independent social worker was instructed to consider, amongst other things, a residence for HP. The independent social worker is Miss Lagun. Her opinion is that it would not be in HP's best interests to go home to her parents' care. She felt that they would struggle significantly to care for her. She was satisfied that HP would need a 24-hour support package from a team of carers for the foreseeable future.
48. HP has clearly and continuously rejected contact with her parents and it is, therefore, difficult to see how she could be forced to return to their care.
49. I have said that HP's mental condition has deteriorated in recent times. There have been a number of factors that are likely to have contributed to that according to Dr S and HP's social care co-ordinator, and I accept their evidence about that. There have been efforts to introduce indirect contact with her family by way of letters and cards. That has been rejected by HP. There have also been efforts to introduce a befriender for HP from her own culture to try and introduce her to some of the facets of Muslim culture. Unfortunately, the person involved had previously been involved as an interpreter when HP had had contact with her mother. She rejected the efforts of that person to work with her. There was a plan for HP to go to college. The introductory visit went well, but when the next stage was reached HP was unwilling to attend.
50. All those elements are seen as potential stress factors for HP which may have led to regression in her behaviour.
51. It is said on behalf of the parents that HP's behaviour has not markedly improved now she has been removed from their care. That is so when her mental health has deteriorated. Nevertheless, when her health improves there is, indeed, an improvement in her presentation as compared to when she was cared for by her parents.
52. In my judgment the submission made on behalf of the Official Solicitor that it would be unconscionable to suggest, as her parents do, that HP should return to live with her family when she is distressed at the prospect of meeting them and rips up cards that they have sent, is a forceful submission, and I agree with it. It is undoubtedly worrying and difficult for the family to accept that HP is not in a home that is part of the Muslim culture. Nevertheless, her cultural needs are only part of the equation. In my judgment, her need for the comprehensive support package that is put forward and implemented by the Local Authority far outweighs the cultural aspects of her life.
53. I am satisfied that the parents' wish to have HP at home in their care is unrealistic and I have no hesitation in endorsing HP's current place of residence and, therefore, authorise that.
54. In respect of contact, counsel for the Official Solicitor has drawn up a very helpful balancesheet in connection with that issue following the approach suggested by Thorpe LJ in Re A (Male Sterilisation) [2000] 1 FLR 549, 560.. I have that in mind when I approach this issue.
55. As a general principle, as a starting point, the promotion of an incapable person's relationship with her family by way of contact would be compatible with her Article 8 rights to family life. That is particularly so where that person has specific social and cultural needs stemming from her family of origin. HP's place of residence is not a unit that is orientated to the Muslim faith. Family contact would have the benefit of being one way of promoting involvement with HP's culture of origin. However, the issue of family contact for HP has been a vexed one throughout the care proceedings and the proceedings in this court. I have no doubt that the family are genuinely concerned about HP. I have no doubt that they have been distressed by her rejection of them. Furthermore, it has always been apparent to me that they are deeply concerned about her cultural and religious identity.
56. The issue of contact has been considered by a number of professionals in both the care proceedings and these proceedings. Dr S has been involved with HP since she was first admitted to Hospital in January 2010. In the care proceedings the psychologist Miss Pecherek was instructed to consider the issue of contact. Within the care proceedings both Dr S and Miss Pecherek were of the view that HP should not be pressurised into having contact against her wishes. Within these proceedings Miss Lagun also looked at the issue of contact to the family. She made suggestions as to indirect contact and introducing contact through the extended family, particularly the younger generation, as a means of trying to promote contact.
57. HP last saw her mother in September 2012 when three contact visits were prompted by her own request. However, since then she has refused to see her mother and family. When the independent social worker saw her about this issue in December 2012 HP described herself as nervous and frightened of her mother. When asked what she meant by "nervous" HP patted her abdominal area. When asked about being frightened she said her mother used to hit her with a big spoon and her father hit her on the head. The parents have always denied that. HP has not seen her father for several years now.
58. Dr Pecherek assessed HP's attachment to her parents and concluded that, as far as it was possible to assess it, that attachment was negligible. Mrs Lagun comments that this absence of an attachment to her parents provides some context to her refusal to see them.
59. It is noted by the professionals that, despite her learning disability and her lack of capacity, HP does have ways of making her wishes known. That has extended to her negative response to suggestions that she should have contact with her family. In my judgment her expressed wishes in this regard are a very important consideration. Dr S has expressed her concern that the recent deterioration in S's mental state has been caused, in part, by the efforts to promote indirect contact with her family.
60. The Local Authority have repeatedly questioned HP about whether she wants contact with her family. On the few occasions that HP has said that she would have contact with her mother the Local Authority have been proactive in arranging it. I am satisfied that the Local Authority have done their best to promote contact between HP and her family.
61. In my judgment the time has now come to reduce the numbers of times that HP is asked about that issue. I fear that repeated questioning about this issue may in itself produce a deadlock. I share the view of the Official Solicitor and Dr S that HP should be periodically asked about contact to her family, those enquiries should be made when HP's mental state is appropriate and receptive to such questioning. The time-frame for such questioning has been variously put at every three months or every six months during the course of the hearing. I do not think it is possible to be too prescriptive about the timescale because, as I have said, it is my judgment that such enquiries should only be made when HP's mental state is such that she is likely to be receptive and responsive to such enquiries. Those enquiries should relate to both direct and indirect contact. Even indirect contact, in my judgment, should not take place unless HP is receptive to it.
62. Should HP request contact I would expect the Local Authority to then make a best-interests decision, applying the provisions of the Mental Incapacity Act, S 4, according to the relevant circumstances at the time with HP's expressed wish being a highly material factor in any best-interest decision making.
63. Although I accept family contact would have cultural benefits for her, she has specifically asked not to have her family's cultural norms pressed upon her. An example of that is her refusal to have halal meet and her request that staff stop offering her that. Furthermore, she did not respond positively to the introduction of the Muslim befriender, as I have already said.
64. So, in my judgment, the balance in this case falls firmly on the side of not having contact with her family, despite the cultural benefits that that may bring.
65. Turning to contraceptive treatment, as I have indicated HP has been receiving the Depo-Provera contraception under interim declarations granted by this court. The issue is whether that continues to be in HP's best interests. Once again counsel for the Official Solicitor has drawn up a very helpful balancesheet on that issue which I have in mind when coming to a decision on this issue.
66. The medical evidence before me is that Depo-Provera injection is the best way of providing contraception for HP. That evidence is uncontested. I have decided that there should be no declaration as to HP's capacity in relation to sexual relations. That is because I have determined that her capacity fluctuates. At times when she lacks the capacity to decide to engage in sexual relations a duty will fall upon the Local Authority to take steps to protect her from sexual encounters. Thus, as the parents argue, it may at first sight seem that medical contraception is unnecessary as adequate social safeguards should be in place. However, as I have said, her capacity in this regard does fluctuate. It seems likely that she will regain capacity in this regard at times. Furthermore, it is likely that that will occur at times when her mental state means that she will have greater access to the community. There is a risk at those times that she will abscond and put herself at risk of pregnancy and that that is a risk that cannot be dismissed. A pregnancy for this young woman would have devastating consequences.
67. In addition to the contraceptive property of the injections they also have a therapeutic effect for HP. The medical evidence is clear that a significant advantage of the treatment is that it reduces menstrual bleeding and in 50 per cent of cases leads to its cessation. It does, however, have less beneficial side effects such as weight gain and bone-mineral-density reduction. However, the evidence before me is that there is less risk with this form of contraception than with other hormonal treatment.
68. It is apparent from the papers that HP does suffer significant physical pain and discomfort with her period. It has been noted that this is absent since she has been given the treatment. Another feature is that HP has experienced difficulties with hygiene and managing sanitary protection when having periods.
69. Dr S in her oral evidence pointed out that that is avoided when the medication controls the menstruation. She also said that the use of Depo-Provera injections is an accepted practice for women with learning difficulties.
70. HP's conduct when having a period has been of concern in that she has smeared menstrual blood on herself and on the walls, and, in my judgment, it can be inferred from that behaviour that she finds the experience of menstrual bleeding distressing. Thus it is highly likely to be of benefit to her if she is not faced with that distress.
71. The combination of the protection against the small risk of pregnancy and the therapeutic benefits of reduced menstruation, in my judgment, justify this medical treatment.
72. Those benefits far outweigh the fact that contraception does not meet with the parents' belief, that belief being something that HP is unlikely to be aware of in any event, and, therefore, I authorise the continuation of the injections as being in her best interests.
73. As far as deprivation of liberty goes, her current place of residence does have a locked door, and HP's movement outside the house and her community access is controlled wholly by her care team. She would not be permitted to leave if she attempted to do so, and, furthermore, her family is not allowed to have the contact with her which they would wish.
74. In my judgment those factors do amount to a deprivation of liberty which, to be lawful, must be authorised either under Schedule A(1) of the Mental Capacity Act or by this court.
75. HP's place of residence is a registered care home and, therefore, Schedule A(1) should be applied to HP's case.
76. The Official Solicitor does not support the applicant's request that the court should act as the authorising body for any future deprivation of liberty, save in the very short term. I agree with that. The usual procedures under the Deprivation of Liberty Schedule should now be followed.
77. The Official Solicitor makes clear that he would not object to an order which authorised the continuation of the deprivation of liberty for a maximum of 28 days pending the standard authorisation being sought and obtained by the placement as a managing authority, and if that order is necessary, I make it, but, as I say, the normal procedure should now take over.
78. So, those are the orders I make.
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