Councils risk heavy costs from not taking steps to promote capacity

By Bridget Dolan QC and Caroline Hurst

A case involving an English High Court judge pronouncing on the financial value of a year without sex was always bound to grab media headlines. But the far more important message for social care professionals to take from this recent decision of the Court of Protection is that, relying upon a person’s lack of capacity as justification for making best interests decisions about them will trigger a reciprocal duty to take all reasonable steps to enhance that person’s capacity. The case of Mr CH provides a clear warning of the potentially heavy financial cost of interfering with someone’s life whilst failing to heed that duty.

It was in summer 2014 when Mr and Mrs H, wishing to conceive a child, first sought help from their local NHS fertility clinic. Until then they had enjoyed normal sexual relations during their seven years of marriage. Neither could have anticipated that, rather than achieving the medical treatment they sought, their lives, and in particular their sex life, would be fundamentally interfered with by the state over the following three years.

Mr H had Down’s syndrome and the NHS staff were concerned at his potential lack of capacity to make decisions about having fertility treatment and regarding sexual intercourse, and so made a safeguarding report to the local authority. The local authority, who had no prior knowledge of the matter, correctly decided that their safeguarding responsibilities required them to commission a consultant psychologist to assess Mr H’s capacity to engage in sexual relations.

Lack of capacity to consent to sex

After a delay of some six months (during which time Mr and Mrs H were free to continue their married life and their sexual relations as before) the outcome of the capacity assessment was made available to the local authority. In early January 2015 the psychologist reported that, in her opinion, Mr H did indeed lack the capacity to decide whether or not to engage in sexual relations, but she emphasised that Mr H should be provided with a formal sex education programme and his capacity then reassessed.

This is of course in line with the principle set out in section 1(3) of the Mental Capacity Act 2005, which provides that “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”. This sub-section does not create any freestanding obligation to enhance capacity but is triggered where someone seeks to rely upon a lack of capacity to justify some other action or decision (taken in the person’s best interests). In such circumstances continued reliance on a lack of capacity as justification for acting will only be lawful if reasonable steps to enhance the subject’s capacity have been taken and failed. The protections from liability for local authority staff under section 5 of the MCA – for actions connected to the care of people who lack capacity to consent – are likely to be invalid if section 1(3) has not been complied with. This became clear in Mr and Mrs H’s case.

The local authority now had a twofold obligation towards Mr H: first, to protect him from what may amount to unlawful sexual activity; and second, to take all practicable steps to enhance his decision-making capacity in that regard. Unfortunately, for Mr H and his wife, and for reasons that have never been explained by the local authority, they heeded the first of these obligations but despite the psychologist’s clear advice, wholly ignored the second. The result was Mr and Mrs H faced an unnecessarily prolonged period of celibacy.

Three months after receiving the psychologist’s report the local authority sent a letter to Mrs H telling her that she must immediately cease sexual intercourse with her husband as, if he lacked capacity to consent, this might comprise a serious criminal offence. She was told that should she fail to agree to this then “safeguarding measures” would be taken.

Reasonably assuming that “safeguarding measures” would mean the removal of her husband from their marital home, Mrs H complied with the local authority directive and moved into a separate bedroom.  Not only was this distressing for Mrs H but she was very conscious that she ought not to ‘lead her husband on’ and therefore significantly reduced any physical expressions of affection towards him. Mr H could not fully understand why his wife was now spurning him. He had gone from having normal conjugal relations to suddenly having his sexual advances rebuffed and his wife sleeping in a different room. This is a difficult situation for anyone to understand and accept, but Mr H’s learning difficulties made this even more confusing for him.

Intrusion into private life

As Mr Justice Hedley said “many would think that no couple should have had to undergo this highly intrusive move upon their personal privacy, yet such move was in its essentials entirely lawful and properly motivated”. The judge considered that the interference in the couple’s life was the “inevitable price that must be paid to have a regime of effective safeguarding”.

However, given there had been six months’ delay between the safeguarding alert and the capacity assessment being completed, followed by a further three months of inertia before acting upon the assessment’s outcome, it begs the question of what this local authority really thought they needed to safeguard Mr H from? If requiring celibacy was the correct action to take then waiting for 12 weeks before telling the couple of this can hardly be described as “effective safeguarding”.

Indeed, the delay foreshadowed the generally indifferent approach of the local authority that continued over the next year. Despite the consultant psychologist’s clear recommendation that Mr H should be provided with sex education, the local authority failed to take any steps to provide this. That failure continued even after Mr H’s sister (acting as his litigation friend) engaged lawyers in summer 2015 to try and resolve the matter.

Protracted legal correspondence ensued over the following months but the local authority still failed to implement the psychologist’s advice. This was even though it must by then have been obvious that, with the authority’s own psychologist recommending that the sex education programme proceed, it would struggle to do anything other than implement the recommendations. Sadly, even the repeated threat of legal proceedings did not produce the desired outcome and so, eventually, in February 2016, an application to the Court of Protection was made on Mr H’s behalf by his sister (the Official Solicitor was later substituted as litigation friend). It required an order of the court to implement the psychologist’s advice and the relevant course of sex education finally began on 27 June 2016; by then it was some 15 months since the couple had been told to cease their sexual relations.

Case law on capacity and sexual relations

The current case law establishes that to make a capacitous decision regarding engaging in heterosexual relations the relevant information a person needs to be able to understand and weigh up includes the mechanics of the act, its sexual nature, the proximate risks (such as pregnancy and sexually transmitted diseases (‘STDs’)) and the right to say “no”.

After his initial sex education course it seemed that Mr H demonstrated the required understanding in all areas save the understanding of health risks of STDs. However, the psychologist who provided the sex education questioned whether this was ‘relevant information’ under section 3 of the MCA given that the couple were in a committed monogamous and exclusive relationship.

That particular legal conundrum will, however, have to be resolved in a later case, as the pragmatic solution was adopted of providing a second course of sex education to Mr H specifically aimed at enhancing his understanding of STDs. When a court appointed expert subsequently assessed Mr H in March 2017, he was considered to now demonstrate sufficient understanding of all relevant matters and to have the capacity to consent to sexual relations. The expert’s view was accepted by the local authority and formalised in a declaration by the Court, following which the couple were able to resume their marital relationship unimpeded.

The overall effect of the local authority’s delay had been that Mr and Mrs H had experienced something in the region of an additional year of wrongly enforced celibacy; they then sought financial compensation for that loss.

Human rights claims

Despite the clear breach of an obligation under section 1(3) of the MCA, the MCA itself provides no financial redress, so the Official Solicitor, acting on behalf of Mr H, instructed solicitors to advise on whether the Human Rights Act 1998 would achieve a remedy. Human rights claims arising out of Court of Protection proceedings, whilst not unheard of, are seldom brought against local authorities because of difficulties with funding and in particular the potential for the statutory charge, under which people who have received legal aid may have to pay back some of their legal costs.

Those lacking capacity often have no independent means and will therefore need to rely on legal aid to bring a HRA claim. Firstly, they need to be able to meet the Legal Aid Agency’s means and merits tests (including requiring a contribution if benefits have built up to a certain level, even if earmarked for other financial burdens).  Part of that test is the cost-benefit analysis, which includes an assessment of what the level of damages are likely to be, as against what can amount to significant costs of bringing such a claim.

Secondly, the effects of the costs recoupment provisions under the relevant legal aid legislation are a major disincentive against bringing a damages claim. The general rule of Court of Protection personal welfare cases is that each party bears its own costs; and so, although the defendant will usually be required to pay the successful HRA claimant’s costs of their HRA claim, this will not include the claimant’s costs of the initial Court of Protection proceedings.

If the HRA damages claim does succeed, the Legal Aid Agency may be entitled to recover the costs of the initial Court of Protection proceedings out of any HRA damages awarded to the incapacitated party. Unless the usual “no costs awarded” rule of Court of Protection personal welfare cases can be circumnavigated, there may well be no damages left once the incapacitated person has repaid to the Legal Aid Agency the publicly funded costs associated with the Court of Protection proceedings from their, usually modest, HRA award.

However, luckily for Mr H this was a case where there would have been a very strong argument to depart from the general Court of Protection costs rule in respect of the initial proceedings: those court proceedings had only been necessary to obtain the sex education for him and would never have been required if the local authority had met its obligation to enhance Mr H’s capacity from the outset.

Costs to local authority

Unsurprisingly therefore, the local authority conceded that it should pay all of Mr H’s costs of the initial Court of Protection proceedings, which by then amounted to around £21,600. Once the recoupment of the Court of Protection costs from his damages was no longer an issue, the way was clear for Mr H, by his litigation friend the Official Solicitor, to bring a damages claim under section 8 of the Human Rights Act to achieve just satisfaction for the breach of his right to a private and family life.

The local authority as a public body was under a statutory duty not to act in a way that was incompatible with Mr and Mrs H’s rights under the European Convention of Human Rights (“ECHR”). This included a positive obligation to respect their Article 8 right to a private and family life and ensure that any interference with that right was no more than that which was necessary and proportionate to a legitimate aim, for no longer period than necessary to meet that aim.

Given that sexual activity with someone who is unable to consent is a criminal offence, initially asking the couple to cease sexual relations was a substantial but legitimate interference with their personal autonomy. It was the lengthy and disproportionate delay thereafter in providing sex education that breached Article 8 and so gave rise to the damages claim.

Once a claim on behalf of Mr H was intimated the local authority did not seek to contest that Mr H’s rights had been breached. It agreed to make a formal apology to him for the delay between January 2015 to June 2016 in providing him with the sex education to which he was entitled and offered to pay him £10,000 as compensation as well as his entire costs of bringing the HRA claim.

That settlement needed court approval and so was considered by Sir Mark Hedley, who approved the compromise agreement. He stated that, given the unique nature of the case, in assessing damages it was not possible to find any close, let alone exact, comparators in reported cases, whether in England and Wales or the European Court, relevant to the valuation of compulsory cessation of conjugal relationships. He concluded that a broad, instinctual view was required and that the figure of £10,000 lay within but towards the lower end of the range of possible awards, “uncertain though that range may be”.

Implications of case

Whilst unique on its facts the lessons from this case are of broad application. What happened to Mr H should provide a sage reminder to professionals working in the social care field that a positive duty can arise under section 1(3) of the MCA to take proactive steps to enhance capacity. The local authority ignoring its section 1(3) obligations towards Mr H had led to a pay out of over £40,000 in costs and damages to him and a further, undisclosed, sum to his wife who had also instigated her own separate HRA claim.

The response to this judgment, in the national and international press and on social media, reflects the public’s disbelief that this degree of interference in a marriage could occur at all. But the shortcoming in this case was not the well-meaning social workers taking action to protect Mr H from possibly engaging in non-consensual sex, but their failure to recognise that as well as endorsing protective actions the MCA also gives rise to responsibilities towards those who have been deemed incapable.

The sexual rights and needs of those with disabilities are too easily overlooked: that damages have been achieved in the present case provides an important message that those with disabilities are just as entitled as any other citizen to enjoy sexual relations and to have their Article 8 right to sexual autonomy protected and upheld.

Bridget Dolan QC of Serjeants Inn Chambers, London, and Caroline Hurst, of Switalskis Solicitors, York, acted for Mr H instructed by the Official Solicitor