Derbyshire County Council v AC

By application dated 24 October 2013, Derbyshire County Council (“the Local Authority”) seeks declarations in respect of a range of issues relevant to the future of AC, a 22 year old woman. AC currently lives at home with her mother (“LC”) and father (“EC”).

In inviting the Court of Protection to exercise its jurisdiction, the Local Authority asserts that AC lacks capacity in the following areas:

The Local Authority has invited the court to consider AC’s capacity to consent to sexual relations; it invites me to conclude that she does have capacity in this regard.

The Local Authority further invites me to make limited best interests decisions following on from the capacity declarations. Specifically, and importantly, it invites me to declare (re §2(iv) above) that it is in AC’s best interests that she reside at Pennine House (a pseudonym), a residential home which is geographically local to her parents’ home.

The Official Solicitor on AC’s behalf takes no issue with the Local Authority’s case in relation to AC’s capacity to litigate, to make decisions about her care package, choose contact with others and consent to sexual relations ([§2(i)-(iii)] and [§3] above). The Official Solicitor concedes that while there is evidence which gives ‘reason to believe’ (per section 48 of the MCA 2005) that AC lacks capacity in relation to residence ([§2(iv)]), I should decline to make such a declaration at this stage. The arguments are fully set out and discussed at [§37-46] below. This is the narrow but important ambit of dispute.

I received written evidence from a number of sources, and oral evidence from DT, an adult social worker who has worked conscientiously with AC since 2012, from Dr. Elisabeth Milne, consultant psychiatrist in learning disabilities at Rampton Hospital, and from EC (AC’s father).

The relevant written capacity assessments are contained in the following documents:

AC was born in June 1992. She has a significant learning disability and has been assessed to have an IQ of 53. She has “significant comprehension problems” (speech and language therapist) and is professionally assessed generally to have very limited levels of functioning. Dr. Milne described to me (oral evidence) that AC presents as a “reception class child” who “cannot focus on more than one thing at a time”. AC further suffers from depression (currently treated with citalopram) and primary hyperthyroidism (for which she receives thyroid hormone replacement therapy); AC has a fiery temper, and has at times been known to be volatile, extremely aggressive, and violent.

AC currently resides for most of the time with her mother and father, but spends time each week (particularly at weekends) with a boyfriend (DU). AC’s mother, LC, is generally hostile towards professionals, and has been extremely confrontational and verbally abusive to AC’s social worker (causing distress to AC when she has witnessed this). The relationship between AC and LC is described as ‘volatile’ and arguments between them have occasionally caused AC to walk out of the home. LC has historically refused to believe that AC has special needs and is opposed to professional engagement for her. The local authority considers that AC's mother is a negative influence on AC, continuing to be aggressive towards any professionals who have entered her daughter's life. AC has described a volatile relationship with her mother, particularly when her mother has been drinking. Professionals have been advised not to go to the family home alone given the aggressive reaction of both AC and AC's mother.

The relationship between AC and her father, EC, is said to be of a different quality – strong and positive.

In oral evidence, both EC and DT offered me a little more insight into AC’s overall level of ability. I was told that AC has the ability to undertake some tasks of independent living; she can operate a microwave oven, she prepares her own breakfast (though not a cooked meal), she can wash and change her clothes. If she wants to go out, she can walk down into the local town, or go by pushbike; she knows how to catch a bus and can read a bus timetable. She can use a mobile telephone and can send text messages. I was told on the second morning of the hearing that AC had taken herself off that day to see her local GP; it transpired that she and her father were concerned that she was suffering from dizzy spells. She had made the appointment; she had visited the doctor on her own before. EC told me that in relation to general level of functioning he thought she was like an immature 12-13 year old.

AC first came to the attention of adult social services when she presented to medical services as pregnant in 2012. She gave birth to a baby girl, Q, in August 2012. Q was the subject of proceedings under Part IV Children Act 1989 and Chapter 3 of the Adoption and Children Act 2002, and was ultimately made the subject of a placement order. In those proceedings, AC’s capacity to litigate was assessed by a chartered clinical psychologist, Mr Paul Hunt, who concluded that AC’s full scale IQ was 53 and is therefore in the bottom 0.1centile of the population; AC was allocated her own social worker, DT. Mr Hunt opined that her “capacity for registering and retaining information verbally presented was particularly limited” and concluded that AC “completely lacks capacity to give her legal representatives informed and reasoned instructions, because she struggles to register and retain information, and because she struggles with reasoning … verbal comprehension and working memory are her two weakest features”.

History relates that AC has had a long history of volatile, abusive and exploitative relationships with friends and sexual partners. DT reports from her experience and the records (I add that I have no reason to doubt this) that AC has been the subject of emotional, physical, financial and sexual harm. This has been repeated and quite extreme. AC has disclosed that she has had sexual relationships with numerous people in the area local to her home. She presents as vulnerable in this as indeed in other respects. In October 2013 AC disclosed that she had recently had sexual intercourse with two men on no fewer than five occasions because the man with whom she was then in a relationship (BT) had asked her to do so; AC further reported that BT had been paid £50 for this arrangement. Separately, AC had disclosed to her social worker that she was “scared” of BT, and that he had sent her threatening text messages (information from the police suggests that BT has a long and serious history of violent behaviour towards others). Later in the same month, AC was travelling in a stolen car driven by BT who was according to AC “pissed” at the time. The car was involved in a collision; AC was fortunate to escape without injury but nonetheless was arrested by the police.

It was following the receipt of the information set out above (in particular concerning AC’s involvement with BT – see [§13]) that an urgent meeting was convened by the Local Authority at which it was resolved that AC required the protection of the Mental Capacity Act 2005 and that the only way to provide this protection was to move AC into residential care and to deprive her of her liberty if necessary. These proceedings were accordingly launched.

Even during the currency of the proceedings, AC’s relationships with others has caused concern. In or around May 2014 she began a relationship with a man called DU, who is said by the police to be a “serial criminal”, with convictions for assault and actual bodily harm against a former partner. In June 2014, AC and DU were discovered by police having sexual intercourse naked in a public park. There are allegations that DU has assaulted AC; she has reported this but then refused to consider taking further steps in respect of these alleged assaults. Indeed, even as recently as three weeks ago, AC visited her local police station to report that DU had assaulted her, striking her in the face, putting his hands around her throat and threatening to kill her; she said that she had ended the relationship. AC further told a family member that DU had threatened her with a knife. Subsequently, it transpires that the relationship has not ended, and AC has continued to stay with DU.

The Local Authority has, in my judgment, worked assiduously in endeavouring to promote AC’s best interests. They have sought to explore options for her accommodation away from home with her parents, in order to give her an opportunity to achieve a degree of independence. AC has repeatedly asked her social worker to facilitate this; she dislikes living with her mother and has said that she wants to live elsewhere. In attempted fulfilment of the plan, DT has taken AC to visit a range of different placements including a shared flat, residential accommodation, and a supported living placement with another service user; AC has had the involvement of an IMCA when exploring these options. Although AC has been generally positive about these placements at the time of visiting she has changed her mind after the visits, being vulnerable to negative influence from others. The Local Authority suspects that her views change because of the reaction of her mother and her boyfriend at any given time.

The evidence reveals that AC has been inconsistent in her views about her residence; at times she says that she would like to stay with her family and at other times, she indicates a strong wish to leave. DT reported that sometimes her requirements appear to change “within the course of the same conversation”. She has engaged reasonably well with attempts made to find her an alternative home.

DT, the social worker, has made concerted efforts to identify a suitable home for AC to live. As indicated above, she has taken AC to a number of residential units, foster homes, and other forms of semi-independent living. AC has provided mixed reactions to the options presented.

Pennine House is the unit currently under consideration. It is a community based unit, providing intensive rehabilitation for males and females aged between 18 and 65, suffering with severe and enduring mental health problems. It is not a secure unit; the residents are able to come and go at their discretion. There are ‘house rules’. It is conveniently situated near a town centre, with easy access to shops, local amenities and bus routes. It is only a few miles from AC’s parents’ home, so she will be able to maintain important and regular links with her family.

At Pennine House, AC will have a support worker initially to work intensively with her to assess her ability to participate in activities and daily living skills, so that a tailor-made package of care can be formulated. She will receive at least two hours per week of 1-1 sessions with her key worker, enabling her to develop a therapeutic relationship. Individual sessions will focus on AC’s psychological and emotional needs, including emotional regulation and anger management. AC will be encouraged to develop independent living skills, with a view to enabling her to move from the main house, to the self-contained apartment in the grounds of Pennine House.

AC has visited Pennine House on two occasions. She likes it; she has responded positively to the offer for a room to be reserved for her and has commented that it is the “best” option which had been proposed for her. EC has viewed it too and likes it, supporting AC moving to Pennine House. EC confirmed that AC “seems very positive about it… she seems quite happy to take up the position and to be there …She seems quite adamant that that is where she wants to be”.

EC further told me that LC has not expressed a view about Pennine House in particular; LC remains opposed to a move, but according to her husband, does not “understand” many of the issues concerning AC as she does not attend the meetings convened by the authority.

I assess AC’s capacity in respect of the specific issues before me in line with the statutory regime contained in sections 1, 2 and 3 of the 2005 Act. I have had further regard to the provisions of the Mental Capacity Act Code of Practice which illuminates the statutory provisions in the following important ways:

Adopting the guidance in PH v A Local Authority and Z Limited [2011] EWHC 1704 and Sheffield City Council v E [2004] EWHC 2808 (Fam) I have been careful not to set the test of capacity too high, lest it operate as an unfair, unnecessary and indeed discriminatory bar against the mentally disabled. I have also borne in mind that the question of capacity is 'decision-specific'. I have had to consider whether AC has been able to consider the necessary information, if not all the peripheral detail; I recognise that different individuals may give different weight to different factors.

Capacity: Litigation: On the evidence filed, and tested before the court, there is no question in my mind that AC lacks the capacity to litigate these proceedings. She does not have the ability, in my judgment, to recognise the difficulties within litigation of this kind, obtain, receive, understand and retain relevant information (including advice) relevant to it. She is plainly not “capable of understanding, with the assistance of such proper explanation from legal advisers and experts in other disciplines as the case may require, the issues on which his consent or decision is likely to be necessary in the course of those proceedings” per Chadwick LJ in Masterman-Lister v Brutton & Co [2002] EWCA Civ 1889, [2003] 1 WLR 1511 at [75].

Capacity: Care: It is acknowledged by DT and Dr. Milne that AC struggles with the conceptual aspects of the proposed package of care for her. She cannot grasp the abstract notions around her therapeutic need; she is unable to describe her own care needs in any meaningful respect. It is not contentious, on the evidence, that AC lacks capacity to make decisions about her care and therapeutic needs. I do not propose to elucidate the evidence further, which – for the avoidance of doubt – I unreservedly accept.

Capacity: Contact with others: AC has had a number of physically and sexually abusive relationships over several years. I accept DT’s 2013 assessment that AC shows very limited understanding of the seriousness of the situations in which she has placed herself notwithstanding (as I accept) that professionals have attempted to educate AC about the risks of associating with dangerous individuals; the year-old assessment has sadly been supplemented by more recent events. These relationships have not, I am satisfied, simply been the product of unwise choices; AC has no real understanding of the consequences of decision-making in this respect; she has limited concept of time, and cannot therefore process whether something has happened in the recent past or some time ago. She struggles with the concept of the future. She finds it difficult to reason or problem-solve. Dr. Milne opined (February 2014 report):

“she is clearly unable to judge the intentions of the people with whom she comes into contact and this has led to her being repeatedly exploited and placed in potentially dangerous situations.”

I find, without reservation, that AC lacks capacity in this regard.

Capacity: Sexual Relations. Dr. Richard Cant assessed AC’s capacity to make decisions about sexual relations. He was of the view that although AC has an impairment of the mind, she “demonstrates a good understanding and retention of information relating to conventional sexual relationships. She is able to weigh this up and communicate her decisions. [AC] is also able to demonstrate a reasonable understanding of consent and abuse.” Dr. Cant went on to advise:

“[AC]’s ability to consent may however be compromised in complex situations wherein her emotional state will become more influential than times when she is able to reflect and consider theoretical situations. Indeed it remains uncertain if [AC] is able to use her knowledge and experience of potentially abusive relationships if she is herself within a relationship in which he consent may become suspect (i.e. relationships that involve grooming for longer term exploitative purposes)”

Given that AC has recently engaged in relationships which have involved a degree of exploitation, this final observation of Dr. Cant is a real concern. Indeed, DT advised me that she had “struggled” with the assessment of AC’s capacity to consent to sexual relations. While concerned about AC’s safety in this respect, and her ‘unwise’ decision-making in relation to her choice of sexual partners, she considered that AC is indeed capacitous.

Dr. Milne commented that AC had a very limited understanding of sexual relations. Although AC was able to discuss with Dr. Milne the basic mechanics of sexual intercourse, and that she understands that pregnancy can result from intercourse (and that sexually transmitted disease is a risk), nonetheless she had been unable to demonstrate that she would be able to refuse to have sexual relations if she did not want this to happen:

“she said that even if she didn’t want sex she would have to go along with it as she wants to be ‘lovey dovey’” (February 2014 report).

Dr. Milne acknowledged that AC probably has “fluctuating” capacity in respect of consent to sexual relations (possibly in part due to periods when she fails to take her prescription for depression, or her hyperthyroidism is not being adequately treated), and in oral evidence was able to acknowledge on the current available evidence that AC is currently probably capacitous in this domain.

The Official Solicitor agrees with the Local Authority that AC has capacity to consent to sexual relations.

The specific capacity test in relation to sexual relations is set out in City Council v MB, NB and MAB [2006] EWHC 168 (Fam) in which Munby J. (as he then was) laid out a test for capacity to consent to sexual relations as follows:

“Does the person have sufficient knowledge and understanding of the nature and character – the sexual nature and character – of the act of sexual intercourse, and of the reasonably foreseeable consequences of sexual intercourse, to have the capacity to choose whether or not to engage in it, the capacity to decide whether to give or withhold consent to sexual intercourse (and, where relevant, to communicate their choice to their spouse)?”

In Local Authority X v. MM, KM [2007] EWHC 2003 (Fam) Munby J added:

“So capacity to consent to sexual intercourse depends upon a person having sufficient knowledge and understanding of the nature and character the sexual nature and character of the act of sexual intercourse, and of the reasonably foreseeable consequences of sexual intercourse, to have the capacity to choose whether or not to engage in it, the capacity to decide whether to give or withhold consent to sexual intercourse: see X City Council v MB, NB and MAB (by his litigation friend the Official Solicitor) [2006] EWHC 168 (Fam), [2006] 2 FLR 968, at para [84]. It does not depend upon an understanding of the consequences of sexual intercourse with a particular person. Put shortly, capacity to consent to sexual relations is issue specific; it is not person (partner) specific”.

The issue of consent to sexual relations has been further examined on a number of occasions by the courts; I have had regard inter alia to the decisions of Mostyn J. (D Borough Council v B [2011] EWHC 101 (Fam), [2012] Fam 36), Baker J. (A Local Authority v TZ [2013] EWHC 2322 (COP)), and Hedley J. (A Local Authority v H [2012] EWHC 49 COP, [2012] 1 FCR 590). Most recently the Court of Appeal examined the issue again in IM & LM v Liverpool City Council [2014] EWCA Civ 37. While implicitly approving the line of authorities which followed the earlier decisions of Munby J., the focus of the Court of Appeal’s determination was specifically upon the issue of whether the test in this regard is, or should be, person-specific, confirming:

“On a pragmatic basis, if for no other reason, capacity to consent to future sexual relations can only be assessed on a general and non-specific basis” [77],

Adding:

“the test for capacity to consent to sexual relationships as being general and issue specific, rather than person or event specific, represents the correct approach within the terms of the MCA 2005” [79].

The Court of Appeal further confirmed:

“the ability to use and weigh information is unlikely to loom large in the evaluation of capacity to consent to sexual relations. It is not an irrelevant consideration; indeed (as we have emphasised) the statute mandates that it be taken into account, but the notional process of using and weighing information attributed to the protected person should not involve a refined analysis of the sort which does not typically inform the decision to consent to sexual relations made by a person of full capacity”. [81]

And

“the information typically, and we stress typically, regarded by persons of full capacity as relevant to the decision whether to consent to sexual relations is relatively limited” [82].

I have not heard detailed argument on this aspect of the case, as the parties were not in disagreement about it; but I must record my small misgivings about the conclusion reached. The distinguished line of judges sitting in the jurisdictions of the Family Division and Court of Protection who have opined on the question of what ‘relevant information’ should inform the test of capacity in this vexed area have not sought to include within the scope of information the understanding of ‘P’ that she (or he) may at any time change her (or his) mind about consenting to sexual relations. Hedley J. considered that it would be legitimate to ask the question whether “the person whose capacity is in question understand[s]that they do have a choice and that they can refuse.” The evidence in this case reveals that AC may not always fully understand that she does have a choice, and/or that she can change her mind in relation to consent to sex; given the extent to which she has been exploited this gives me considerable anxiety. However, on the established test as it stands the professional consensus (with which I do not feel I should disagree) is that the criteria (summarised above) are established in relation to this issue at this time. Accordingly, I conclude that AC currently has capacity in this regard although, given the fluctuating nature of her capacity in this respect, I urge those who have continued responsibility for AC to keep this issue under careful review.

Capacity: Choice of residence. In considering this question, I first consider what is the ‘relevant information’ which would inform whether AC has the capacity to make a decision about residence. Mr. McKendrick suggests that the relevant information would be limited to consideration of the following factors:

Mr. Wenban-Smith advances a rather wider ambit of information suggested by Dr. Milne; this includes some care aspects, including consideration of the fact that residence at Pennine House has a therapeutic and educative component:

“Broadly the relevant information would include where she is living, who she is living with, what her care needs are, to be able to understand what the care arrangements are currently, or what they would be in an alternative placement and how these would help meet her needs, what activities she would be able to access, what opportunities she would have for education in different settings, whether the placement is envisaged as long-term or as a short term placement with a view to progression to greater independence.”

It may be helpful if I indicate that I accept Mr. McKendrick’s list in [§37 above], but would add additional ‘relevant information’ as:

It is acknowledged that while AC understands the various options which have been presented to her, and can sufficiently well retain that information, she is unable to weigh the pros and cons of any of the residential options. DT is of the view that AC cannot consider the relevant factors “she will focus on one specific incident to the exclusion of all others even if the focus is unrelated to the topic or decision to be made” (September 2013 report).

At times, AC has been enthusiastic about a proposed move from her current home, particularly when the relationship with her mother becomes fraught. She has, at other times, expressed less positive views about placement options reflecting a significant degree of influence by others. Dr. Milne expressed the view that:

“although she has indicated that she wishes to move to an alternative address she is unable to sustain this wish in the face of opposition and apparent interference from others.”

Furthermore, EC considered (and told DT) that “[AC] will withdraw her support of any proposal once she realises there will be closer monitoring of her movements”.

The professional, and lay, evidence reflects that arrangements to move AC to Pennine House may be vulnerable to AC’s unpredictable mood, and/or to capriciousness on her part, and/or by her giving (particularly at a key moment in the process) insufficient priority to the task in hand. In this last respect, I noted that on the appointed day of one of the proposed visits to Pennine House in the summer, AC chose to remain in Derby with her boyfriend “because she was hungry and wanted to have breakfast”. She missed four other visits, without explanation (she simply failed to turn up for the appointment, though later told the Official Solicitor’s representative that “my boyfriend needed me … just to talk”). This is frustrating for the professionals, and perhaps reflects a low level of understanding about the relevant commitment required, and the importance of the decision. That all said, I am pleased to report AC did attend Pennine House for a visit, as planned, on 8 October 2014; this was extremely successful.

Mr Wenban-Smith encourages me to take the view that I should make a clear declaration of capacity (albeit on an interim basis), so as to open the door for an interim best interests’ declaration. He contends that:

Mr. McKendrick contends that, although the grounds for making an interim declaration as to residence are made out, I should not make such a declaration (even on an interim basis), arguing that:

Having reviewed the material, and these arguments, carefully I conclude that there is value to AC and those working with her that I should make the interim declaration of incapacity in relation to AC’s choice of residence as contended for by Mr. Wenban-Smith. I do so largely for the reasons which he has set out and which I have summarised at [§44] above. AC’s co-operation with the planned move is far from assured, and for her benefit, and for those who seek to secure this outcome, I consider that I should offer judicial clarity.

Best interests: I am satisfied on the evidence before me that it is in AC’s best interests that she should move to, and reside at, Pennine House; I am of the view that AC requires a residential establishment with therapeutic component. She should be given the maximum chance to develop independent living skills, which will be achievable there. Moreover, such a move of course accords with her current wishes (section 4(6)MCA 2005) and those of her father (section 4(7) MCA 2005). I propose to direct that the Local Authority shall file and serve a detailed care plan consistent with the principles established by Baker J in A Local Authority v TZ (No. 2) [2014] EWCOP 973, setting out how it will lawfully manage AC’s right to respect for a private life, consistent with the court’s declarations, that she lacks capacity to make decisions in respect of contact with other people, but has capacity to enter into sexual relations.

For reasons which I mentioned at [§7] above, I direct that the applicant shall file and serve a further capacity assessment on the issue of choice of residence, to be prepared by DT’s identified colleague.

I shall further give the Official Solicitor leave, if considered necessary, to seek an updating capacity report from Dr Elisabeth Milne.

I shall give directions for restoring the matter back before me, when appropriate, as proposed by counsel and agreed by them.

That is my judgment.