10 years of the Mental Capacity Act 2005: Empowering and protecting

Our approach

We believe that every person should be:

• Treated as an individual;
• Empowered and supported to make their own decisions about their life; and
• Free from undue pressure or abuse.

Our philosophy and approach fit neatly with the principles of the MCA. However, despite its worthy aims, in practice, the application of the MCA can be patchy. There is more to learn, which is well illustrated by the recent case of CH v A Metropolitan Council [2017] EWCOP 12.

The background

CH was 38 years old. He was born with Downs Syndrome and also had a learning disability. He married WH in 2010, and they lived together at his parent’s home. They later sought fertility treatment, which led to an assessment by a clinical psychologist who determined that CH lacked the capacity to consent to sexual relationships. A letter was sent to WH in March 2015, advising her to abstain from sexual intercourse with CH to avoid committing a serious criminal offence under Sections 30-1 of the Sexual Offences Act 2003. WH also understood that if she continued to have sexual relations with her husband, the local authority might remove her or her husband from the home.

WH moved into another bedroom and reduced physical displays of affection with CH – so as not ‘to lead him on’. We can only imagine how distressing all of this was for CH.

What should have happened next?

Section 1(3) of the MCA provides: “A person is not to be treated as unable to make a decision unless all practicable steps to help him to do so have been taken without success.” The consultant psychologist made it clear that CH needed a course of sex education, which should enable him to achieve the necessary capacity to consent to sexual relations with his wife. However, the local authority failed to provide that education for CH, despite repeated and lengthy requests. Proceedings followed in the Court of Protection; the provision of the sex education was ordered and then began in June 2016. CH made good progress in his understanding and in March 2017, CH and WH were able to resume a normal marital relationship.

Comment on the case

Although it may seem unconscionable to the reader that a committed and loving couple should have to experience this form of intrusion, Sir Mark Hedley commented:

“Logically the question of capacity must apply also to married relations and the criminal law makes no distinction between settled relations and sexual disinhibition or indeed between sexual relations within or outside marriage. Society’s entirely proper concern to protect those who are particularly vulnerable may lead to surprising, perhaps even unforeseen consequences. Such, however, may be the price of protection for all.”

The initial decision made by the authorities in relation to CH and WH was made in accordance with the law. However, the failure to follow through and apply the principles of the MCA and support CH to gain understanding and acquire the necessary capacity to resume sexual intercourse with his wife breached CH’s right to a private and family life under Article 8 of the European Convention on Human Rights.

Damages

The local authority was required to:

• Make a formal apology to CH for the delay in providing him with the sex education; and
• Pay the sum of £10,000 in damages.

Anthony Collins Solicitors

Supporting our clients to make their own decisions is at the heart of what we do. We enjoy seeing our clients live as independently as possible.

We are marking the 10^th anniversary of the MCA with a series of articles exploring different aspects of our and our clients’ experience.

This is culminating in a party – the MCA birthday party – where we will celebrate this important piece of legislation with those most important to us; our clients (aged between 5 and 92) and their families. There will be fun and games – and, of course, a birthday cake!

If you would like to discuss a Court of Protection matter, please contact Sheree Green or Kirsty MacMillan. If you would like to find out more about the work that we do, please visit our website.

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