B (by her litigation friend, the Official Solicitor) v A Local Authority
| Jurisdiction | England & Wales |
| Judge | Sir Terence Etherton,Lady Justice King,Lord Justice Leggatt |
| Judgment Date | 11 June 2019 |
| Neutral Citation | [2019] EWCA Civ 913 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: B4/2019/0679 B4/2019/0680 |
| Date | 11 June 2019 |
[2019] EWCA Civ 913
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE COURT OF PROTECTION
Cobb J
Royal Courts of Justice
Strand, London, WC2A 2LL
THE MASTER OF THE ROLLS
Lady Justice King
and
Lord Justice Leggatt
Case No: B4/2019/0679 B4/2019/0680
Sam Karim QC and Francesca Gardner (instructed by MJC Law) for B
David Lock QC and Simon Garlick (instructed by Legal and Democratic Services) for the Local Authority
Hearing dates: 14 & 15 May 2019
Approved Judgment
Sir Terence Etherton MR, Lady Justice King and
Introduction
This is an appeal and a cross appeal from the order dated 12 March 2019 of Cobb J, sitting in the Court of Protection, in which he made various declarations as to the mental capacity of B. There is an appeal by B against those parts of the order in which he made interim declarations under section 48 of the Mental Capacity Act 2005 (“the MCA”) in relation to B's capacity to make decisions to use social media for the purpose of developing or maintaining connections with others and to consent to sexual relations.
There is a cross-appeal by the respondent Local Authority (“the Local Authority”), which is responsible for B's care, from that part of Cobb J's order in which he made a declaration that B had capacity to decide where she resides.
B does not have capacity to litigate. These appeals are being conducted on her behalf by the Official Solicitor (“the OS”), B's litigation friend.
The important questions on these appeals are as to the factors relevant to making the determinations of capacity which are under challenge and as to the approach to assessment of capacity when the absence of capacity to make a particular decision would conflict with a conclusion that there is capacity to make some other decision.
Legislative framework
The MCA sets out the legal framework for making determinations about mental capacity. It is complemented by a Code of Practice (issued by the Lord Chancellor under section 42 of the MCA) that gives guidance on the application of the MCA.
Section 1 sets out the general principles of the MCA. It provides, among other things, that a person is presumed to have capacity unless it is established that he or she lacks capacity (section 1(2)); that he or she is not to be treated as unable to make a decision unless all practicable steps to help him or her to do so have been taken without success (section 1(3)); and that he or she is not to be treated as lacking capacity merely because his or her decision is unwise (section 1(4)).
Sections 2 and 3 together define the circumstances in which a person lacks capacity. Section 2(1) provides that:
“For the purposes of this Act, a person lacks capacity in relation to a matter if at the material time he is unable to make a decision for himself in relation to the matter because of an impairment of, or a disturbance in the functioning of, the mind or brain.”
Accordingly, questions of capacity arise if and only if a person suffers from some impairment in the functioning of the mind or brain as a consequence of which they are unable to make a decision. Capacity determinations are specific to particular matters that arise for decision at the time a determination is required to be made about a person's capacity.
Section 2(4) requires that questions as to lack of capacity are to be resolved on the balance of probabilities. The effect of this, read with section 1(2), is that the burden is on whoever alleges that a person lacks capacity to prove to that civil standard that the person does not have capacity in relation to the matter at issue.
Section 3(1) provides that a person is unable to make a decision in relation to some matter if he or she is unable to understand, retain or use or weigh the information relevant to that decision, or is unable to communicate the decision. Section 3(2) provides that the information relevant to the decision is required to be presented to the person in a way that is appropriate to his or her circumstances. Section 3(3) provides that the fact that the person may be able to retain the information for a short time only does not prevent a finding of capacity.
What is the relevant information will depend on the particular decision to be made, but includes the reasonably foreseeable consequences of the decision or failure to make a decision (section 3(4)).
Where decisions are taken for a person lacking mental capacity by someone else, those decisions must be in the person's best interests. Section 4 of the MCA requires that all relevant circumstances be taken into account, and prescribes certain mandatory relevant considerations not in issue on these appeals.
Section 15 empowers the court to make declarations as to whether a person has capacity to make a particular decision.
Section 48 empowers the court to make interim orders and directions in relation to a matter if there is reason to believe a person lacks capacity in relation to that matter.
Factual background
B is a woman of 31 years of age, who has learning difficulties, epilepsy and considerable social care needs. B struggles to maintain her personal care and hygiene. She currently lives with her parents. She has occasional overnight respite care and some community support.
B is assessed as requiring support to maintain her safety when communicating with others. When she receives information which she does not want to hear, she often becomes dismissive and verbally aggressive.
B is a frequent user of social media, principally using WhatsApp, Facebook and Snapchat to communicate with others. Her use of social media has caused repeated concern to her adult social care workers. B has been known to send intimate photographs of herself and to communicate personal information to male strangers. She is known to search the internet for a boyfriend and once she has made a link with a potential partner she views them as a “friend” and will quickly tell them that she loves them and wants to meet them. She routinely has “sex chats” with males.
It was through this behaviour that B met Mr C, a man in his seventies who has been convicted of multiple sexual offences and is subject to a Sexual Harm Prevention Order. Mr C is aware of B's learning disability and has described her as a functioning 10-year-old. He has said that he wishes to marry her. Although B has been advised of the risks posed by Mr C, she refuses to believe that he has a history of offending. She remains in regular contact with him and on at least one occasion has stayed overnight with him at his home. B has communicated her strong desire to live with Mr C and has indicated that she wishes to have his baby.
On 2 July 2018 the Local Authority applied for declarations that B lacks capacity to litigate, to consent to sexual relations and to make decisions as to her contact with others. In October 2018, at the Local Authority's instigation, Cobb J imposed an interim injunction on Mr C prohibiting him from having any contact with B. At a hearing on 1 March 2019 Mr C was found to have breached the order and was sentenced to three periods of 28 days' imprisonment to run concurrently, suspended for 12 months.
Judgment below
In his full and careful judgment of 21 February 2019 Cobb J made declarations in relation to B's capacity to make decisions about, among other things, her residence, care, contact with others, sexual relations, and social media usage. He referred himself to the relevant provisions of the MCA and observed (at [20]) that the “strict decision-specific approach” required by the MCA produced anomalous results insofar as B could be assessed as having capacity in relation to one matter but not having capacity in relation to another closely related matter. Notwithstanding that result, he held that that was the law he had to apply in this case.
Capacity to decide on residence
Cobb J set out (at [26]) the following relevant information that B would need to be able to understand, retain and use or weigh in order to make a decision as to residence given by Theis J in LBX v K, L, M [2013] EWHC 3230 (Fam) (at [43]):
“i) what the two options are, including information about what they are, what sort of property they are and what sort of facilities they have;
ii) in broad terms, what sort of area the properties are in (and any specific known risks beyond the usual risks faced by people living in an area if any such specific risks exist);
iii) the difference between living somewhere and visiting it;
iv) what activities P would be able to do if he lived in each place;
v) whether and how he would be able to see his family and friends if he lived in each place;
vi) in relation to the proposed placement, that he would need to pay money to live there, which would be dealt with by his appointee, that he would need to pay bills, which would be dealt with by his appointee, and that there is an agreement that he has to comply with the relevant lists of “do”s and “don't”s, otherwise he will not be able to remain living at the placement;
vii) who he would be living with at each placement;
viii) what sort of care he would receive in each placement in broad terms, in other words, that he would receive similar support in the proposed placement to the support he currently receives, and any differences if he were to live at home; and
ix) the risk that his father might not want to see him if P chooses to live in the new placement.”
Cobb J held that B did have capacity to make decisions in relation to residence. He was most troubled by the application of criteria (vii) and (viii) to B, but held (at [27] and [28]) that she was able to understand who she would be living with and “in broad terms the care...
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