High Court to scrutinise restrictions on areas where P has capacity

Mr Justice Hayden has handed down a judgment concerning LC, a young woman with autism and significant learning disabilities.   During the course of proceedings which had lasted five years LC was assessed as having capacity to consent to sexual relations, marry, and make decisions about contraception; but to lack the capacity to make other decisions such as to conduct the proceedings, make decisions about her residence and about her contact with men.  As a facet of LC's autism she was preoccupied with seeking out sexual encounters and a care plan was formulated which permitted LC to have unsupervised contact with others.  As the judge observed  with "the enormous benefit of hindsight" this led to LC's safety and dignity being compromised and placed an intolerable burden on those supervising her.  The plan attracted significant public criticism.  LC now resides in a care home but is able to spend time with her husband.  In a sensitive judgment Hayden J endorsed LC's treatment plan and directed a report from a female clinical psychologist, noting the obligation under the Mental Capacity Act to take steps to promote decision making capacity.

The circumstances of this case have attracted widespread comment.  One conundrum for LC, her family and those working with her is how the legal framework of the Mental Capacity Act 2005 should protect those like LC in areas where she lacks capacity without unduly impinging on the areas where she has it.  This anxious dilemma is faced by adults with disabilities, their families and practitioners on a regular basis up and down the country.  Hayden J commented:

"In simple terms, whether the measures put in place to protect LC in those areas where she lacks capacity may legitimately impinge on her autonomy in those areas where her capacity is established. It has been canvassed that if the court is to restrict LC either in part or, potentially, fully in such a sphere (i.e. where she has capacity), the court ought only to consider such measures under the parens patriae jurisdiction of the High Court. Happily, it is unnecessary for me to resolve that issue today, indeed, it may not arise. It does require to be said that whenever a court has to curtail the liberty of an individual whether capacitous or not, the burden is acute and the responsibility grave. In future, it seems to me, where issues arise that may necessitate restrictions in areas where adults have capacity, these should be heard by a High Court Judge in the Court of Protection. In fact, as I have reviewed the authorities, I note that, historically, these cases have all been considered in the High Court."

Court of Protection practitioners are likely to be aware of cases which come before the district or circuit judges where statutory bodies seek the guidance of the Court of Protection in formulating a care plan which complies with Articles 5 and 8, especially those which may entail restrictions on sexual contact with others, where P may have capacity to consent to sexual relations, but not to make decisions about contact itself.  Following this guidance, such cases should now be allocated to the High Court.