More trouble with MEG (now ‘Q’)

In a previous post I wrote about this Court of Protection judgment, considering whether two young women, ‘MIG’ and ‘MEG’, were deprived of their liberty in a foster home and a care home.  Today the Court of Appeal issued its judgment on the case, and found that neither sister were deprived of their liberty.  In my view, the Court of Appeal judgment has the merits of being rather more clear, concise and consistent than the High Court judgment.  These benefits notwithstanding, however, I’m afraid I still found it rather a disappointing, and I shall try to spell out why below.  For those of you with little time to spare, here are the ‘headlines’ of what troubles me:

• The reliance on whether a person is ‘objecting’ to their placement is problematic because: a) it diverges from the central message of the Bournewood judgment; b) it fails to protect the Article 5 rights of people who lack the wherewithal to object and the Article 8 rights of their families
•  The different comments by different judges appear to conflict on whether previous or possible alternative care arrangements are relevant to whether ‘deprivation of liberty’ is occurring.
• ‘Loss of autonomy’ and the exercise of coercive control is yet further removed from considerations of whether a person is deprived of their liberty or not.
• I think the case introduces a distinction between the meaning of ‘deprivation of liberty’ in the context of psychiatric detention and social care settings; a distinction that is not supported by much research into this area or my own experiences of working in these sectors.

Rejecting Bournewood?

According to the judgment, the appeal against the original decision rested on whether this passage from HL v UK (‘Bournewood’) meant that MEG (Q) & MIG (P) were deprived of their liberty:

...the Court considers the key factor in the present case to be that the health care professionals treating and managing [Mr HL] exercised complete and effective control over his care and movements from 22 July 1997, when he presented acute behavioural problems, to 29 October 1997, when he was compulsorily detained. [91]

The Court of Appeal argued that being subject to ‘complete and effective control’ was only determinative ‘in the present case’ – in short, that whilst it might have meant that HL was deprived of his liberty, it did not follow that it meant other people in other circumstances would be.  The court based its judgment on two primary grounds: whether the relevant person ‘objects’ to their placement, and whether it constitutes ‘normality’.  I shall take these in turn.

“Objections”

Part of Parker J’s reasoning that neither MEG nor MIG were deprived of their liberty rested on them being happy in their placements [204]; this echoed earlier cases like that of TG v LLBC (2007, [105]) and Re MP (2009, [17]).  The Court of Appeal took a different view; a person’s happiness is only relevant to whether a deprivation of liberty is in someone’s best interests, not to the question of whether it is occurring [24].  However, they did hold that whether a person ‘objects to the confinement which is imposed on her’ is relevant [25].  The reasoning is important:

If a person objects to the confinement, the consequence will be conflict. At the very least there will be arguments and she will suffer the stress of having her objections overruled. More probably, as in the case of Miss Storck, there will be tussles and physical restraints and even perhaps her forcible return at the hands of the police. This level of conflict inherent in overruled objections seems to me to be highly relevant to the objective element. Equally, however, the absence of objections generates an absence of conflict and thus a peaceful life, which seems to me to be capable of substantial relevance in the opposite direction. [25]

My points of disagreement can be summarised thus: 1) there are people for whom it may be very difficult to infer whether or not they are ‘objecting to their confinement’ but for whom we want to retain the right to say they are deprived of their liberty (HL, I will argue, fell into this category); 2) It does not follow, in these cases, that ‘the absence of objections generates an absence of conflict and thus a peaceful life’.  The difficulty turns on how one interprets ‘challenging’ behaviours.

In care homes and supported living services, there are a significant number of people for whom it will be difficult, if not impossible, to make sense of whether their behaviours can be said to amount to an ‘objection to confinement’.  As a support worker in care homes and supported living, I sometimes worked alongside people who had profound communication difficulties; I do not mean merely that they could not speak, but in some cases any form of communicative exchange was problematic.  They displayed behaviours such as self-harm, violent aggression towards staff, destruction of property, which certainly could be taken as evidence that they were unhappy in their placements, but it’s difficult to say whether they were ‘objecting to their confinement’, because that requires a certain degree of reflective insight into their situation.  The danger is that for people like those I’m describing, no behaviour could ever be taken as a clear sign of objection because nobody would take them to ‘have the capacity to conceptualise any alternative unfamiliar environment’ (MEG& MIG, 225), or even conceptualise their own confinement.

Put another way, for managing authorities (or even supervisory bodies) seeking to avoid the application of the safeguards, every possible sign of objection could potentially be interpreted a different way.  How are you to distinguish whether a person attempted to break out through the kitchen window because they were ‘objecting to their placement’ or just to their dinner?  How are you to distinguish whether they escaped from the mini-bus on a trip out because they were  ‘objecting to their placement’ and not to the music on the stereo?  How are you to distinguish whether they are self-harming because they hate their placement, they hate the staff and everyone in it, or because of some other reason that they cannot express?  These are not mere philosophical trifles, interesting ‘problem of other minds’ examples.  Examining (or failing to examine) why ‘challenging behaviours’ occur is the bread and butter of care provision, but it is not always easy to arrive at a conclusive answer.

I think HL himself may have fallen within this category.  The original decision to admit him informally to Bournewood hospital was made in the context of his not objecting.  The court heard evidence that he was ‘not distressed’ by his admission, he was ‘fully compliant with treatment and never indicated that he wishes to leave the hospital’.  The Health Service Ombusdman report paints a very different picture.  On visiting him, his carers perceived him to be agitated and distressed.  Where a person lacks expressive language, who is to say whether they are objecting or not?  Even, whether they are distressed or not?  What for some is a clear symptom of distress, may be ignored by others as a mere 'symptom' of mental disorder.  The requirement that a person ‘objects to their confinement’ is likely to place people who lack expressive language at a significant disadvantage; in short, they are much less likely to be deemed eligible for the safeguards.

Futhermore, the assumption that ‘the absence of objections generates an absence of conflict and thus a peaceful life’ is not, in my experience, necessarily correct either. In the circumstances I have outlined above, where a person’s behaviour cannot be meaningfully said to be an ‘objection to confinement’ or their placement in general, they may still be subject to considerable interventions – sometimes physical – which can only be described as ‘conflict’.  In my view, the older emphasis on the ‘degree and intensity’ of restrictions (given in the code of practice and in European case law) is preferable; it brings the restrictive, sometimes combative, responses to these ‘ambiguous’ behaviours back within the analysis of whether deprivation of liberty is said to have occurred.  It places the emphasis back on the use of coercive power within care settings, and does not make a requirement that we only respond to coercion when a person is able to frame a recognisable objection to it.  And in many ways, people who are confined and subject to 'complete and effective control', who lack expressive language to describe what is happening to them, are the most at risk of abuse or excessive restrictions within their placement.

It should be recalled, furthermore, that a person may not ‘object’ to a situation despite its being harmful to them; this is clearly recognised in case law where adults are removed – objecting - from the care of their families because it is said to be harmful for them (e.g., PCT v P).  The requirement for objection means a person may be confined in a care setting, where they are subject to ‘complete and effective control’, where it is not in their best interests – yet by virtue of the fact they are unable or unwilling to express it, they are denied the powerful benefits of the safeguards.  We recognise in other areas of mental capacity law that a person’s apparent compliance or consent may be subject to coercion or even habit, yet not be in their best interests – it seems counterintuitive and contradictory to abandon this principle here.

“Normality”

The situation of MEG & MIG was distinguished from that of HL by reference to where they were confined.  There is said to be a spectrum of normality, whereby ‘the most normal life possible’ is in the family home, ‘not much less normal’ in an adult foster placement, and ‘even when the person lives in an institution rather than in a family home, there is a wide spectrum between the small children's home or nursing home, on the one hand, and a hospital designed for compulsory detentions like Bournewood’ [28].

I want to score a cheap point first.  I wonder how many adults today would regard it as ‘normal’ to continue living with their parents, or ‘not much less normal’ to be in an adult foster placement – or a care home, or nursing home?  It’s a cheap point, but it highlights a more important and complex issue.  ‘The most normal life possible’ is the operative phrase here, where ‘possible’ means ‘for that individual (with their disabilities), in our society today.’  By what criteria do we assess ‘normality’?  It cannot be familiarity to the confined person, otherwise lifers in prison could not be regarded as ‘detained’ after a certain number of years.  Does it mean ‘most common’?  The number of people cared for in a particular kind of service?  Or does it mean something closer to ‘acceptability’ within the bounds of what our society consider a ‘normal’ way to deliver care?  I suspect the latter, although it’s clearly impossible to ascertain what the intended meaning was.

I want to briefly consider another case, which I think might turn out to have a bearing on this and related cases.  The Grand Chamber of the European Court of Human Rights recently heard the case Stanev v Bulgaria (note: judgment still awaited in this case, but a webcast of the hearing is here).  In this case, it was argued that Mr Stanev was deprived of his liberty in Pastra care facility in Bulgaria.  Bulgaria responded that they weren’t ‘detaining’ him but providing him with a home (recalls paragraph 230 of MIG & MEG in the High Court).  Counsel for Stanev argued that Bulgaria had a positive obligation to provide him with support in the community, to avoid the need for detention.  Such an argument could easily have been made in the domestic case, Re RK.  Counsel for Stanev also point out that the living conditions in the Pastra care home had been described as constituting ‘inhumane and degrading treatment’ by the UN Committee for the Prevention of Torture.  Bulgaria responded that perceptions of treatment were ‘individual and subjective’ and ‘will depend on their mentality and social status.’

Almost certainly, the care received by MEG & MIG is of a higher quality than that endured by Mr Stanev.  But the point is this: in Bulgaria, Mr Stanev’s conditions may be as ‘normal’ for someone with his disabilities and in his social circumstances as MEG & MIG's are here.  If we want to retain the right to say he is deprived of his liberty in Pastra care home, we cannot do so by reference to their not being ‘normal’.  We can only do so by reference to the degree of coercion and confinement he experiences, but this is precisely the analysis that is denied to us by this judgment.  Yes, it could be distinguished by reference to dignity and 'living conditions', but where living conditions are characterised by coercive control, should they be ignored from the analysis?

Another way of looking at it is this: why is psychiatric detention regarded as more paradigmatic of ‘deprivation of liberty’ than care in the family home?  Because, I venture, it is assumed to be less restrictive.  I think this is a belief that underpins this aspect of the judgment.  It does not fit with the ‘aesthetic’ or dominant discourses surrounding social care to admit that they might, at times, be very restrictive and coercive environments.  My experience, and reports like this, this, this and this (I could go on - but I won't) testify that this assumption may be misinformed.  The most restrictive environment I ever worked in was a supported living service where residents all received one-to-one, sometimes two-to-one 'continuous supervision and control'.  Service users were frequently shut in their rooms for ‘time out’ (whether wanted it or not); some service users were daily placed on ‘reins’ for long periods of time.  All the service users were subject to frequent physical interventions and PRN medication to ‘calm them down'.  I challenge anyone to argue that this is ‘less restrictive’ or ‘more normal’ than psychiatric detention; yet the courts are coming dangerously close to taking at face value that ‘supported living’ services and care homes are just that.  This judgment does not allow us to say the residents I supported were deprived of their liberty; such care could easily be argued to be ‘the most normal life possible’ for people in their position (whether it is a ‘good life’ is another question).  To quote Keith Ewing, in this wonderful Article entitled ‘The Continuing Futility of the Human Rights Act’, ‘The answer lies only with the Lewis Carroll and George Orwell schools of treaty and statutory interpretation’.  That is to say, the courts are coming close to taking ‘deprivation of liberty’ to mean what it suits them to mean, reflecting what we want to believe about social care, and thus engaging in Orwellian Newspeak, à la 1984.

A note on families, conflict and ‘safeguarding’

One final passing comment on a possible issue for families and Article 8 rights.  There have been cases where a person has been removed from the family home for ‘safeguarding’ or other reasons, where the safeguards may no longer apply.  Sometimes, as in the case of MEG & MIG there are excellent reasons for not permitting a person to return to the care of their families.  But there are cases, like that of LLBC v TG and that of G v E, where the ‘safeguarding’ allegations were later held to be false, and where it was found to be in the ‘best interests’ of the relevant person to return to their family’s care.  In the first place, TG was not ‘objecting’; in the second case, it was not clear that E was either (although it is said he ‘showed signs’ of preferring to return to his foster carer). If such cases came up today, managing authorities could lawfully refuse to apply for authorisation for the placement on the grounds the relevant person was not objecting.  Supervisory bodies could refuse to authorise it, on the grounds they were not objecting.  This would leave the families without access to the deprivation of liberty safeguards, which they might well need to challenge the placement.  The safeguards provide families and ‘detainees’ with access to expert independent advocacy services, non-means tested legal aid, and the right to refer their case to the Court of Protection without fee or ‘permission’.

Yes, these cases could technically be challenged by way of judicial review; but there are drawbacks to this remedy.  In the first place, the Court of Protection is a specialised court for dealing with these cases – whereas the administrative courts are not.  In the second place, there is no guarantee that legal aid for judicial review would be granted, it being subject to both means and merits tests.  In the third place, a finding that the removed family member was ‘deprived of their liberty’ would bring the case into the realm of a ‘limited’ human rights, which might have rather more force before the court than 'qualified' Article 8 rights or the vagaries of community care law.  A court might hesitate to authorise a deprivation of liberty where a person is manifestly better of being supported to remain with their family; but if it can hold that they are not ‘deprived of their liberty’ because they are not objecting, it may find that the breach of the family’s Article 8 rights is justified in the face of other considerations (chiefly – the cost considerations of supporting them at home).

[Edit: This post was published in Local Government Lawyer here.]

More reading:

Alan Norman discusses the case here in Community Care; I'm particularly fond of this extract from his article:

It seems to me that the correct conclusion that the Court of Appeal arrives at should have been arrived at by far simpler means. Sometimes, my students infer that Article 2, the Right to Life, is about quality of life, and I have to say, no, it is literally about life itself. Similarly here, Article 5 is not about the quality of our liberty, but about liberty itself. Surely it should be possible to say that an individual interference with a person's free will may or not be right, may or may not be lawful, but is not itself a deprivation of liberty?

Folks at Browne Jacobson  have posted a commentary here; of particular interest they state that the case is going to the Supreme Court.  The express concerns too:

However, the idea that a care regime in the family home which allows ‘the most normal life possible’ will usually not be a deprivation of liberty, may yet prove to be just as problematic. We foresee an argument that a care regime in a care home or hospital which allows P ‘the most normal life possible’ should not, therefore, be deemed a deprivation. And what do we mean by ‘normal’ anyway?

The Department of Health has posted a case summary here; I have concerns that the summary may not be an entirely correct or clear exposition of the judgment.  It states:

An important distinction appears to be emerging in these judgments that people living in their own homes or tenancies, care homes or in “acute” hospitals will, whilst being restrained in their best interests, typically not be deprived of their liberty as those “normal” regimes will typically not achieve that threshold in delivering the treatment or care to which they are unable to consent. If however, their family or carers are indicating that they do not want the person to be there and more importantly, if the person himself is indicating that he doesn’t wish to be there, then the question of their confinement arises and the question of deprivation of liberty is now engaged. Other factors to consider are the use of medication, social contact, and whether the person goes out of the home regularly to college, day centre or place of occupation.

The DH interpretation that typically restrictions in a person's best interests will not amount to deprivation of liberty outside of a psychiatric setting seems to rather undermine the entire principle of the safeguards.  Deprivation of liberty can only be authorised when it is in a person's best interests; on this reading how could it ever be authorised in a care home?  The DH, of course, only says 'typically', but there is no other case law or criteria by which to judge what constitutes 'typical' in this sense.

The 39 Essex Street Court of Protection Newsletter for March also discusses the case.  It's not up on their website as of 05/04/201, but they comment:

It might be said that the safeguards put in place by Article 5 ought to apply not just to those who have the capacity and/or temperament to cause a fuss...

The Court of Appeal said expressly that the decision was not influenced by ‘floodgates’ arguments and the risk that the courts would be inundated with applications requiring declarations sanctioning deprivations of liberty and the subsequent reviews required by Article 5(4), but it is easy to imagine such considerations being in play. A concern expressed by the government in the seminal Bournewood case was that if HL was deprived of his liberty, then so were many thousands of people in care homes and hospitals up and down the country. The end result was the introduction of Schedule A1, and it may yet be that the Supreme Court adopts a position which requires similar legislation to be introduced in respect of supported living placements.

I await the outcome of the Supreme Court case with interest. 

39 Essex Street Court of Protection February Newsletter

The excellent 39 Essex Street Court of Protection Newsletter for February is now out.  I can't recommend this newsletter enough, not just for keeping up to date with Court of Protection cases but also for interesting commentary and round up of cases you might have overlooked.  It also discusses some cases not yet published elsewhere.  You can find it, along with older editions, here:

http://www.39essex.com/newsletters/?resultpage=1&

Excellent commentaries on the case of 'Alan' (which I discussed in this post).  Edited highlights:

Vikram Sachdeva says:

The correct test for capacity to consent to sexual relations is a highly controversial topic. The answer depends on an examination of the philosophical basis underlying incapacity law – specifically whether it is justified (on a utilitarian basis) to prevent significant sections of the population from indulging in sexual activity in order to prevent abuse in a small number of cases, or whether fewer should be barred from sexual activity, but with a risk of abuse in a small number of cases which would have otherwise been avoided.

Victoria Butler-Cole points out that:

The law on capacity to consent to sexual relations is in disarray. This decision conflicts with the recent decision of Wood J in LS, and it is difficult to see how the two judgments can be reconciled (or how this judgment can be reconciled with that of the House of Lords in R v Cooper [2009] 1 WLR 1786.

 And...

If this decision is correct, it is clear that the criminal test for capacity under s.30 of the Sexual Offences Act 2003 and the civil test are not the same; a point which was not acknowledged in A‟s case. It may also, counter-intuitively, impose more restrictions on people with learning disabilities rather than promote their sexual freedom, since where an exploitative or abusive relationship exists, the inclination may well be to „fail‟ the individual on the test for capacity (as there is inevitably a degree of flexibility about how much knowledge of, for example, STIs, is required). This could then result in a global declaration preventing sexual contact for the individual in other, non-exploitative contexts. Local authorities and those working in this area can only hope that the issue does receive consideration by the Court of Appeal in the near future.

The trouble with MEG

In so many ways, the case of MIG and MEG highlights problems with the Court of Protection and the deprivation of liberty safeguards.  In the first place, it’s a crucial case that significantly narrowed the parameters of what is considered to be a ‘deprivation of liberty’ in social care settings, and yet it’s not even been put on the Bailii website where lawyers find most judgments.  You can find it here, thanks to the excellent Mental Health Law Online website, but only because lawyers involved in the case have made efforts to get it there.  Given how much rests on these cases, given how practitioners in social care are crying out for more clarity about what a ‘deprivation of liberty’ is, why isn’t the Court of Protection routinely making these cases available?  I still speak to practitioners who haven’t heard of this case, but rest assured that care providers facing legal challenges are relying upon it to argue that the deprivation of liberty safeguards don’t apply to them.  Before I go on to discuss the ruling itself, I should say that the case was heard in the Court of Appeal in October 2010.  I know this, because it’s briefly mentioned in the excellent 39 Essex Street public law newsletter.  What we don’t know, even though the case is really important and it was heard three months ago, is the outcome.  In fairness to those involved, these cases can drag on if more evidence is needed, and it doesn’t help that the Court of Protection is woefully underfunded for the amount of cases it hears.  But we do know that a great deal hangs on the outcome; how the Court of Appeal rule in the case of MEG and MIG could significantly change the landscape of the deprivation of liberty safeguards.

The case of MEG and MIG concerned two sisters who both have moderate to severe learning disabilities, and who were removed from the care of their families due to ‘violence, sexual abuse of a sibling, neglect, chaos, and where her mother put her own needs and wants before her children.’ [208, 214].  MIG was 17, and lives with her foster carer, who she calls Mummy.  This is the kind of care arrangement HL in the Bournewood case enjoyed when he lived with Mr and Mrs E.  The legal and ethical issues may well be different in a foster placement, so I’m not going to talk about MIG in this post (although I will post on family and foster care another time).  MEG was 17, and lives in a care home.  It’s important to note that the deprivation of liberty safeguards could not apply to MEG, as she was not yet 18 and her care home was not ‘registered for the purposes of Schedule A1 of the Act’ [168].  This means that if she were found to be deprived of her liberty, the care provider (which is presumably a domiciliary care provider, or a children’s home, if it is not registered for the Act) would have to make a costly and lengthy application to the court for authorisation, and would have to seek periodic reviews.  Unsurprisingly, this is an eventuality that most care providers are keen to avoid if possible.  It’s one of the many inexplicable ‘holes in the DoLS’, that it doesn’t apply to many care settings where a person can be deprived of their liberty.  In the case Re RK the judge heard evidence that if children in care homes could be regarded as deprived of their liberty, the resource implications for local authorities – including compensation claims for unlawful detention – could be enormous [6-13].  Judges are usually careful to stress that concern for resources cannot influence their decision on whether someone is deprived of their liberty, but evidently local authority lawyers think it must have some sway or they wouldn’t bother to present this aspect of their cases.

So, the feature of the present case I am interested in is how the judge came to the conclusion that MEG was not deprived of her liberty.  MEG lives in a care home.  She has one-on-one, and sometimes two-to-one support [215].  For people who have not worked in care, it’s hard to convey how intense it can be working with someone one-to-one or two-to-one.  It means, in essence, that they are never left alone and are subject to ‘continuous supervision and control’.  Note the phrasing.  There are people with physical disabilities who require the constant presence of support workers to help them execute actions in their everyday lives – but they don’t require ‘continuous supervision’ exercised so as to ‘control’ them.  It seems as if the evidence heard by the court regarding physical restraint is unclear [217] – it is not referred to in the care plan, but it is mentioned in the context of controlling aggressive episodes.  Later on [233] the judge says that ‘Neither is restrained save for immediate purpose of ensuring safety, and, in the case of MEG, for her immediate protection and that of others when she has an outburst.’  This is a peculiar comment, since under s6 Mental Capacity Act restraint may only be used in these circumstances.  What the judge appears to be saying is that neither are restrained unlawfully; but surely, if restraint is relevant to whether a deprivation of liberty is occurring and needs authorisation, it must mean lawful restraint?

MEG is also prescribed Risperidone, a sedating antipsychotic.  Certainly in dementia care, Risperidone is widely regarded as a form of chemical restraint (see this report, for instance).  MEG is prescribed it to ‘help with anxiety’ [216].  ‘Anxiety’ can refer to a wide range of states.  In care homes I have worked in, people were given PRN sedatives for ‘anxiety’ when their behaviour became unmanageable.  It was never referred to as restraining them; the pathologisation of behaviours allows us to view what is in effect often an act of coercive control as ‘treatment’.  I’m not arguing that MEG shouldn’t be on Risperidone, but I think it is unfortunate that ‘No oral evidence was given about this medication and it uses at the hearing’ [216].  The judge finds the medication does not play a part in contributing to potential deprivation of liberty, because she ‘is not medicated to prevent her from leaving’ [217]. It would be highly unusual for medicine to be explicitly administered in order to prevent someone leaving a facility.  I don’t think many doctors would prescribe it for that purpose; but that could be its effect, all the same.  Even if it did not ‘prevent someone leaving’, it is a further manifestation of the 'complete and effective control' exercised over MEG’s body and mind by those who care for her.

The judge also considers whether MEG is ‘free to leave’.  She finds that if she ran away, she would be restrained and brought back [233], but elsewhere states:

Freedom to leave has to be assessed against the background that neither wants to leave their respective homes, there is no alternative home save that of their mother where neither wishes to live, and neither appears to have the capacity to conceptualise any alternative unfamiliar environment. [255]

This is a very interesting statement of a crucial issue regarding whether a person is deprived of their liberty or not.  In the view of Mrs Justice Parker, a person may not be considered to be deprived of their liberty if they have nowhere else to go, or show no desire to leave.  On the first point, whether there is an ‘alternative home’, it seems to me this cannot count against whether a deprivation of liberty is occurring.  The Convention permits, for instance for detention of vagrants (Article 5(1)(e)); they are vagrants precisely because they have nowhere else to go.  In fact, in one famous vagrancy case a lack of viable alternative residences was regarded to invalidate consent to detention, because consent could be regarded as ‘coerced’ by circumstances ("extralegal coercion").  It would also lead to the rather odd conclusion that had HL been informally detained at Bournewood, but for some reason his carers could not take him back, he would have been considered more ‘free’ than when they were fighting to get him home.

This leads me to the question of compliance.  The underlying message of the Bournewood judgment is that detention of adults who lack the mental capacity to consent to confinement is a deprivation of liberty even if they are compliant.  In a hospital setting, in fact, the 'rule' is that compliant but incapacitated patients who would be prevented from leaving if they attempted it have to be detained under the safeguards because they are ineligible for the Mental Health Act - just like HL.  It seems that in this judgment (and others) the relevance of compliance to whether a ‘deprivation of liberty’ has occurred in a care home is splintering away from the criteria applied in hospitals.  It is almost as if compliance is being treated as consent to detention, which would be illegitimate where people lack capacity.  There are arguments that noncompliance increases the intensity of the restrictions, and thus tips the balance into deprivation of liberty; but I’ve yet to see a published case in a care home where someone was compliant and content and was regarded as deprived of their liberty (suggestions in comments very welcome on this).  We are in danger of viewing compliance not as an intensity ‘factor’ but as determinative of the issue.

This case was discussed at a conference I attended recently, where the excellent Neil Allen argued the key reason why MEG was not considered to be deprived of her liberty was that the care home was her home.  This seems like an attempt to bring her situation in line with other cases where people subject to restrictive care, including ‘continuous supervision and control’, are not regarded as deprived of their liberty because it occurs in the family home. The family home issues aside, to my mind there are significant problems with arguing that the care home constitutes a ‘home’ for MEG.  Many of the features that we would naturally associate with home are simply not present in care homes.  For me, calling a place my ‘home’ is very closely bound up with my ability to exercise my autonomy and control my surroundings.  I choose where I live.  I choose who comes into my home, and retain the right to eject them from it if I desire to.  I choose who I live with.  I choose how to occupy myself within my home - there are no 'out of bounds' spaces, and I choose how to dispose of the resources within it.  A loss of control over one’s surroundings, over who one lives with, over one’s personal privacy, is in many ways what we dread about admission to a care facility.  It is true that MEG is likely to be subject to a similar level of control wherever she lives.  To my mind, this calls into question whether – unless the Reach Standards are carefully applied – any facility caring for people who are subject to this level of control can be regarded as a ‘home’.  Indeed, in the case G v E it was argued that because he did not have ‘exclusive occupation’ of the property, because care staff came and went on their choosing and not his, it was a ‘sham’ tenancy.  This issue was not pursued for other reasons, but it is likely to come up again in court.

One of the most highly criticised aspects of the judgment in this case, is that the judge held that the 'reasons for' the restrictions were relevant to whether they contributed to a deprivation of liberty.  The judge was heavily influenced by the ‘kettling’ case, Austin, where the House of Lords controversially held that protestors ‘kettled’ for hours by the police were not deprived of their liberty because the police did not intend to detain them.  The Austin case has been really heavily criticised for narrowing the scope of Article 5 of the European Convention on Human Rights; it is going to be taken to the European Court of Human Rights.  If the ruling is condemned, as many believe it will be, then cases like that of MEG may be unsound.  Barrister Paul Bowen and solicitor Ben Troke have both pointed out that this line of argument makes it very hard to see when the safeguards could, logically, ever be applied.  A key feature of the Mental Capacity Act is that restrictions on liberty must always be in someone's best interests, and a proportionate response to risks.  A key criterion of the deprivation of liberty safeguards is that deprivation of liberty may only be authorised when it is in a person’s best interests.  If parliament had felt that restrictions ‘in a person’s best interests’ didn’t count towards deprivation of liberty, it is hard to see why they would have drafted the legislation the way they did.  Lord Justice Munby put it well in the case JE v DE when he said:

The argument, if taken to its logical conclusion, would seem to lead to the absurd conclusion that a lunatic locked up indefinitely for his own good is not being deprived of his liberty.

The overall tenor of the judgment is that restrictions in the name of benevolent paternalism cannot amount to a deprivation of liberty.  To my mind that goes against the entire grain of the deprivation of liberty safeguards, and it goes against the grain of my instincts as well, having worked in plenty of places similar to where MEG is cared for.  Mrs Justice Parker enthusiastically cites Lord Hoffman’s dissenting judgment in a control order case, where he states:

Why is deprivation of liberty regarded as so quintessential a human right that it trumps even the interests of national security? In my opinion, because it amounts to a complete deprivation of human autonomy and dignity. The prisoner has no freedom of choice about anything. He cannot leave the place to which he has been assigned. He may eat only when and what his gaoler permits. The only human beings whom he may see or speak to are his gaolers and those whom they allow to visit. He is entirely subject to the will of others.

Aside from the legal quibble that it is rather bad form to rely upon a dissenting judgment that the majority of the house disagreed with (and not to even qualify it by acknowledging it was a dissenting judgment when citing it), the choice of quote seems to me rather peculiar.  The situation of MEG does share more than a passing resemblance to Lord Hoffman’s prisoner.  Do you think MEG chooses what and when and where she eats with the same autonomy as you?  Do you think she could decide to eat twelve mars bars at midnight on a picnic if she felt like it?  Could she even choose to eat a different meal to what’s ‘on the menu’ that night?  Or to eat later, or earlier, than staff decided?  And there are restrictions on who MEG can see; not only the restrictions imposed by any care home on ‘reasonable’ times for visits, but the court has previously placed restrictions on contact with her family – no doubt with good reason.  How many care homes would just let any person come in on MEG’s invitation, regardless of what they look like or whether they know them?  Because she is subject to ‘continuous supervision and control’, every decision that MEG makes is subject to potential overrule by those who care for her.  This is what is known in Republican philosophy as a ‘state of domination’; regardless of how often, in practice, one is interfered with, the ever-present possibility of interference is regarded as detrimental to liberty.

The point is, that for better or worse, MEG is ‘entirely subject to the will of others’.  This may be no bad thing if that will is exercised to protect her, and doubtless those caring for her strive to do so.  But the point about Article 5 is not that it outlaws deprivation of liberty in all circumstances, but that it recognises the inherent dangers within it and seeks to minimise them.  Dangers like being excessively vulnerable to the arbitrary, sometimes capricious, will of other persons.  The point of the safeguards is to impose external scrutiny, to ensure that coercion is kept to a minimum, that it never becomes abusive as it so easily could.  With dwindling visitation from CQC, with care staff under increasing pressure to deliver more with less, surely it seems appropriate that someone in MEG’s position – who is highly vulnerable – should have access to additional safeguards to ensure that her vulnerability is not taken advantage of?  And even if it never is, even if her care is executed to ‘least restrictive’ ‘best interests’ Mental Capacity Act perfection, it still seems uncomfortable to deny that she is not, in some way, less at liberty than you or I.  I have heard places like those that care for MEG referred to as ‘bittersweet prisons’ by those who have been confined in one.  This post by autistic blogger Amanda Baggs sets out eloquently what is wrong with the view that being subject to continuous control, even in one’s own best interests, is not experienced as a loss of liberty:

I have a recurring nightmare. I am in a beautiful building with a hushed, playful atmosphere. I have been there as long as I can remember. Everything I could possibly need is there. There are no locks on the doors. People follow me everywhere, but just out of sight, to give me the illusion of freedom. They want only the best for me. I can go outside and play in the woods, and I climb trees. And they treat me like a child. Everything is controlled perfectly. Nothing seems to be wrong, but nothing seems to be really right, either. Everyone is very sweet and very kind and very nice and very forgiving, but there is no freedom. Anywhere. This makes the apparent happiness of the place empty, shallow, and false. That, to me, is the essence of the intangible horrors I fear. Only when I wake up from this nightmare do I realize it’s a nightmare, and that in turn makes it all the more frightening.

It will be interesting to see what the Court of Appeal think.  The cynic in me wonders whether they won’t concur with this judgment.  The problem is, in many ways it suits a lot of people rather well.  No care provider wants to think of themselves as ‘depriving someone of their liberty’ (perhaps they should have stuck with 'Protective Care'?).  If she is found to be deprived of her liberty it will have major resource implications not only for care providers who have seek authorisation, but also for local authorities in similar cases who will have to apply the safeguards.  Potentially it will be a drain on the resources of the courts themselves, not to mention the Legal Services Commission.  Not only that, but apparently whether the safeguards are extended to include 'supported living' hinges on the outcome of this case.  It could be a very comfortable ruling for everyone; let’s hope it’s that comfortable for MEG and those others like her.

The Essex Autonomy Project

Just a quick plug for a research group I noticed online:

http://www.essex.ac.uk/autonomy/

They are holding several workshops on issues around autonomy, which appear to be geared towards 'psychiatrists, philosophers, lawyers and social workers', and will discuss matters relating to the Mental Capacity Act.  Well worth a look if you're interested in discussing these things at a multidiciplinary event.

CQC functions to prevent torture and inhumane or degrading treatment under threat?

In a report published this month by the Ministry of Justice, that is probably likely to pass under the radar of most people concerned with issues of community care, a very ominous warning was sounded:

In an organisation of CQC’s size and broad scope, there will always be a tension between the different functions it performs. In 2010–11, an internal restructuring of CQC threatens some roles dedicated to the monitoring of the MHA. A review of visits to those detained under mental health law is also underway, although this is designed to enhance effectiveness. As CQC’s overall budget comes under pressure it will be a challenge to maintain its focus on its OPCAT-related work. (p33)

Anyone concerned with the rights of people who are deprived of their liberty in psychiatric hospitals, ordinary hospitals, care homes or any other sites of care should sit up and take notice of this.  In fact, you should take out your pens and start writing and asking the CQC exactly what this comment is all about.  Essentially, the author of this section of the Ministry of Justice report is suggesting that vital functions carried out by the CQC are under threat due to austerity cuts and restructuring.  What CQC function could possibly be more important than ensuring the most vulnerable people cared for in hospitals and social care are not subjected to torture, or inhumane or degrading treatment?

What is this report all about?

In 2002 a United Nations treaty came into force called the ‘Optional Protocol to the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment’, or OPCAT for short.  The United Kingdom ratified OPCAT in 2003.  The treaty requires all signatories to establish ‘National Preventive Mechanisms’ to carry out regular inspections of any places where people are deprived of their liberty to ensure they are not being abused.  Most public and academic discussions about OPCAT concern visits to prisons, police cells, immigration detention centres etc.  However, OPCAT also covers people who are deprived of their liberty as a result of illness or disability.  OPCAT reflects, at an international level, an understanding that people who are deprived of their liberty are extremely vulnerable, and are at excessive risk of ongoing and unnoticed abuse of their most basic human rights.  Think, for instance, of the torture and abuse of prisoners in Abu Ghraib prison in Iraq.  Think, more close to home, of the abuse suffered by adults with learning disabilities in supported living services in Cornwall, uncovered by the Commission for Social Care Inspection in 2005.  I am sure you can think of other cases in the news, or perhaps in your own experience, unprompted.

CQC inspections in hospitals and care homes

Each OPCAT signatory nation can choose how they establish their own preventive mechanism.  In the UK, there were already many systems in place for inspecting most sites of detention, from Her Majesty’s Prison Inspectorate to the Independent Custody Visiting Association.  In total, 18 organisations in the UK make up our National Preventive Mechanism to ensure detainees of all kinds are protected from torture and abuse (see list of them here).  One of these is the Care Quality Commission (CQC).

Before the CQC was formed in 2008, the Mental Health Act Commission (MHAC) was charged with making unannounced inspections of psychiatric hospitals to ensure the rights of patients detained under the Mental Health Act were upheld, and they were being well treated.  The MHAC was the last in a long line of commissions dating back to the Physician Commission, established under the Madhouses Act 1774 to visit madhouses and ensure patients were not being mistreated, and were not inappropriately detained.  This essential function of visitation to ensure detainees in sites of care were not being mistreated has been carried out by a range of commissions over the centuries and its functions are now absorbed by the CQC.

The Mental Health Act Commission was particularly noted for producing excellent biennial reports into the state of care in Britain’s psychiatric detention facilities.  You can still read some of them online here (2003), here (2005), here (2008).  The reports were extremely revealing about the darker side of psychiatric detention, and most likely made uncomfortable reading for many in Whitehall and government.  They have brought to light shocking standards of care.  The 2008 report, containing a list of disturbing incidents (p19), makes gruesome reading: patients who are secluded 90% of the time; patients in overcrowded wards sleeping on the floors of doctors offices; vulnerable women housed on wards where they are sexually abused; a dying man nursed in a dining room whilst other patients eat in there. 

As was increasingly recognised following the Bournewood judgment, people are not only deprived of their liberty in psychiatric hospitals.  The deprivation of liberty safeguards were established to protect the rights of people who are detained in hospitals and care facilities without the protections of the Mental Health Act.  Reading the Ministry of Justice report this month, it was clear that as far as monitoring and rights protection goes, the deprivation of liberty safeguards are very much the poor relation of the Mental Health Act.  The CQC merely noted that their use was ‘limited’; there was no detailed discussion of the living conditions and rights of those detained under the safeguards.  There seems to me no reason to believe that standards of care are higher in these detention sites; indeed, the steady trickle of reports of abuse in care homes and supported living in the media might lead us to believe they are worse.  As has been raised in the past many times by the MHAC themselves, people who are deprived of their liberty in any setting are vulnerable; where these people are disabled or suffer from mental illness, that vulnerability is exacerbated.  The MHAC in fact once cautioned against any sites that detain people with learning disabilities being relatively free of external visitation (here, 3.33).  Since then, levels of visitation in care homes have in fact dropped, and will drop further still (read this article for a discussion of this issue).  Except in exceptional circumstances, supported living services which fall under 'domiciliary care' provision are not subject to site visits at all.  The CQC is increasingly switching over to a ‘light touch’ regulation model which relies upon self-assessment – how many people could honestly believe that incidents like those listed above would be reported this way?

I think there is a very serious question, that has not as yet been publicly addressed by the CQC, as to whether the inspection regime regarding people who are deprived of their liberty under the Mental Capacity Act complies with OPCAT.  Put bluntly: there is a serious question whether the inspection regime for these detainees would be recognised as sufficient in international law as preventing inhumane or degrading treatment.  Any failure to comply with OPCAT would cast serious doubts over the CQC's, and indeed the UK as a whole, compliance with their positive obligations under Article 3 of the European Convention on Human Rights.

Over the years the Mental Health Act Commissioners have championed the rights of all detainees, and tried to draw attention to the particular issues faced by detained women, children, black and minority ethnic groups, as well as the dearth of protection of de facto detainees like HL in the Bournewood judgment.  When the Commission was wound down to become absorbed into the CQC they wrote that they were ‘reassured’ that their functions were not to be diluted, that their ‘warnings’ about the risks that would follow the loss of such functions were heeded (final report, 2009, p12).  The comments in the Ministry of Justice report this month suggest that they breathed a sigh of relief too soon.  Is the passage quoted above the last gasp of the Mental Health Act Commission?  A signal that we may be reaching the end of the road in a long history of visitation of sites of detention to protect the most basic rights of the most vulnerable members of our society?

I can find no coverage of this issue elsewhere.  I can see nothing on the CQC’s website that reflects a possible retraction of their visiting scheme.  But this report signals clear rumblings from within the CQC that some of its most vital functions may fall under the axe of austerity.  For anyone who sees value in preventing inhumane and degrading treatment of vulnerable people deprived of their liberty in our hospitals and care homes, I suggest you pick up your pens, and ask them what this is all about.

Incapacity, Sexuality, Law

A Court of Protection case about a man with learning disabilities who was banned from having sex has recently been in the news.  The case was reported in the The Daily Mail and The Telegraph, and Libertarian blogger Anna Raccoon, wrote about the case in a posting entitled ‘Too stupid for sex?’  Crown Office Row barrister Adam Wagner wrote a nice summary of the case in the UK Human Rights Blog, and the judgment itself can be found here.

In brief, the case concerned whether a man with learning disabilities, ‘Alan’, who lived in local authority accommodation should be banned from having sexual relations because he lacked the mental capacity to consent to them.  The judge reviewed existing case law on both the capacity to consent to marriage and the sex, and concluded that the law required a person to be able to understand three things in order to be able to consent to sex:

• The mechanics of the act
• That there are health risks involved, particularly the acquisition of sexually transmitted and sexually transmissible infections
• That sex between a man and a woman may result in the woman becoming pregnant

The judge found that Alan lacked understanding of these matters, and directed that a ban on him having sex should be upheld in the short term, but that he should be provided with an education on these issues in order that he might attain the capacity and be able to resume sexual relations in the future.  In general the consensus on this case appears to be that it was a sensible decision, but there are aspects of the case I find deeply unsettling, which I will discuss here.

The judge in this case followed reasoning laid down by Judge Munby concerning whether the capacity to consent to sexual relations or marriage is ‘general’ or ‘partner-specific’.  In Sheffield City Council v E (2004), it was found that the capacity to consent to marriage was determined by whether or not the person understood the contract of marriage in general– rather than the implications of the specific relationship.  The case concerned whether E, a woman with learning disabilities, had the capacity to consent to marry S, a man with a history of domestic violence and a conviction for buggery of a minor.  It was held that as long as she understood the ‘simple’ contract of marriage, then she had the capacity to consent to marriage with any partner, no matter what his background.  In another case, Judge Munby argues the same way for the capacity to consent to sexual relations: ‘It is difficult to see how it can sensibly be said that she has capacity to consent to a particular sexual act with Y whilst at the same time lacking capacity to consent to precisely the same sexual act with Z.’  Serious concerns with this line of reasoning have been raised by academic commentators  - there is an excellent discussion of the judgment in Sheffield City Council v E in the recently published book Feminist Judgments.  Supreme Court Judge Baroness Hale also remarked on difficulties with this line of reasoning in another case, R v C (2009), in which she said ‘My Lords, it is difficult to think of an activity which is more person and situation specific than sexual relations. One does not consent to sex in general. One consents to this act of sex with this person at this time and in this place.’ [27]

Judge Mostyn- in the present case dismissed Baroness Hale’s remarks as ‘conflating the capacity to consent to sex with the exercise of capacity to consent to sex.’ [34]  In relation to this specific case, I think it is possible Judge Mostyn is correct.  Where I depart from agreement with him is in his analysis of what understanding is required to be able to consent to sex.  Specifically, although he believes it is important to have an understanding of the ‘mechanics of the act’ and the risk of pregnancy or infection, he dismisses the importance of understanding either the emotional repercussions [37] or the need to understand that sex should be between consenting adults [39].  I will take the latter point first.  Judge Mostyn argues because rapists and paedophiles have the capacity to consent to sex, even though they believe it is morally acceptable for it to be non-consensual or with children, an understanding of consent cannot be an essential ingredient in the capacity to consent to sex.  This seems to me to be a faulted analysis of the situation.  Surely the point about rapists and paedophiles is that they understand but disregard, the legal requirement for sex to be between mutually consenting adults.  If it is held that a person can have the capacity to consent to sex without any understanding that it should be consensual, there seems to me to be a risk that people like Alan could be held responsible for entering into non-consensual sex where they had no understanding of consent itself.  The consequences could be that one party is held liable for rape, where they did not understand the other party had a right to refuse sex, or, conversely, that one party is held to have engaged in consensual sexual relations merely because they did not understand they had the right to refuse them.

This is not merely a matter of social engineering, of ‘teaching what is right and wrong’ [41]; it seems to me that a vital ingredient in having the capacity to exercise consent in any matter is that one must understand the nature of consent itself.  One can hardly be expected to exercise a right to refuse unwanted interferences if one does not understand that one can.  It would be absurd, by comparison, to hold that a person could be said to have consented to a marriage where they believed they had no choice in the matter.

The second subject I want to comment on in relation to this case is a wider social issue, relating to how Alan managed to attain the age of 41 without any of the basic understanding around sex the judge feels is necessary to exercise the capacity to consent to it.  This case is in many ways a fantastic example of how mental capacity is not only related to physiology, but also to a person’s life experiences and current situation.  In my experience of working with adults with learning disabilities, Alan’s situation is by no means unusual.  I have lost track of the number of people I have worked with who are well into adulthood and have no understanding of what sex involves or what its consequences might be.  Yet, these same people display behaviours which clearly show they have a sexual libido, or – particularly for many women I have worked with - that they would like to have a baby.  How have we, as a society, allowed people to enter into adulthood with the physical and emotional longings for intimacy, sexual relations and procreation but so poorly equipped to understand or safely exercise those feelings?  We would not dream of sending our non-disabled children into the world with such dangerous gaps in their knowledge, so why is this happening to people like Alan?

If we look back across the history of adults with learning disabilities in the last century, we can see on ongoing concern with their sexuality.  In the early twentieth century, as is relatively well known, there was a movement to sterilise ‘mentally deficient’ adults – spearheaded in Britain by the Eugenics Society.  In Britain (although not elsewhere), this movement was successfully opposed by an unlikely coalition of Catholics and Libertarians – including the author G K Chesterton.  Public debate over eugenic sterilisation reached a peak over the 1913 Mental Deficiency Bill, where the government eventually removed a clause requiring eugenic sterilisation of ‘mental defectives’ and instead established ‘colonies’ for their separation and sexual segregation.  The defeat of eugenic sterilisation has been widely hailed as a triumph of liberalism over fascistic leanings, a triumph that I would not want to deny.  But, as is raised in this case, I think there is a fundamental question over whether the containment and sexual segregation of people with learning disabilities can be hailed as a ‘humane’ or progressive alternative.  I do not advocate a return to systematic sterilisation of people with learning disabilities, far from it, but the spectre of eugenic sterilisation has long clouded debate over the measures that were implemented in its stead.

It is out of this background of the desexualisation of people with learning disabilities, I believe, that people like Alan are attaining majority age with no knowledge or vocabulary to describe their sexual feelings.  Based on my experiences working with children and adults with learning disabilities, I think there are two dominant background beliefs which continue to give rise to this situation.  The first is that by providing people with learning disabilities with education on sex, they will be more inclined to desire it, and that it turn would give rise to uncomfortable consequences.  If my experiences and the cases like these are anything to go by, a lack of sex education does not lead to an absence of sex drive.  It leads to a dangerous lack of sexual awareness, which may lead to inappropriate behaviours such as those demonstrated by Alan, or the considerable danger of unprotected or unwanted sexual encounters.  Failure to provide an adequate education on not only the mechanics of sex, but also the social and legal issues that attend to it, are a major factor in why adults such as Alan can be said to lack the capacity to consent to sex in the first place.

The second background belief which I believe informs the lack of sex education given to people with learning disabilities, is that they will not need it in any case because they will always be prevented from having sexual encounters.  This has deep roots in the ‘containment’ and ‘management’ solution to adult sexuality found during the eugenics debates of the early twentieth century.  It speaks directly to a question of deprivation of liberty that was, in my view, rather brushed over by the court in this case.  It is hard to see how the degree of control that must be exercised in order to prevent someone having sexual relations can be anything but a deprivation of liberty.  This is one key difference between the issues surrounding sex and marriage.  Whilst a marriage could be annulled where one party lacked the capacity to consent to it, a sexual act cannot be undone – thus, it must be prevented.

It is a peculiarity of these cases that they concern the concept of consent, which arises from a tradition of negative liberty and the prevention of unwarranted interferences with one’s autonomy and one’s person.  Although Adam Wagner sees this case as relating to issues of public safety, it seems to me that the court is primarily addressing the question of whether Alan should be permitted to resume his relationship with his housemate Kieron, not whether he should be permitted to molest and rape the public at large.  Thus, they are concerned with whether permitting Alan to have sex with Kieron infringes his bodily integrity, because he cannot be said to have consented to it.  It seems to me ironic that in an attempt to protect Alan’s bodily integrity and autonomy in such a private matter, his sex life is brought before a public court, to be reported in the national press.  He is subjected to a range of deeply personal assessments by medical professionals; interestingly, there is no discussion as to whether he consented to these.  He is physically prevented from resuming his sexual relationship to the extent that he is deprived of his liberty; one can only assume that at points this included physical restraint.  I do not question the legality of the path which led to this state of affairs.  If Alan lacks the mental capacity to consent to sex, then any penetrative sex he engages in will be statutory rape – as for a child, and those who care for him cannot therefore permit it.  I wish however to point to the considerable irony that in seeking to avoid this ‘violation’ – which Alan himself desires – the authorities are forced to exercise further violations upon his bodily integrity, autonomy and privacy.

I wanted to end this piece with a consideration of the extreme difficulties faced by those charged with the care of adults who lack mental capacity in supporting, or otherwise, their sexual needs.  There is beginning to be a change in attitudes towards sex education and supporting the emerging sexuality of adults with learning disabilities, but the issues are extremely complex.  One great concern is whether people with learning disabilities should be supported to have families.  In a school for children with learning disabilities that I once worked in, there was a poster on the wall which read “People with learning disabilities can do anything, including having a family” – it had a picture of two stick figures under a rainbow, holding hands, with a baby.

I thought of this poster often, years later, when I worked in a unit which provided residential assessments of families subject to child protection proceedings in the courts.  I worked largely with families where one parent or the other had learning disabilities.  Their situation was a million miles from that rainbow drawing.  In most of the cases I saw, although – importantly - not all, even the most intensive teaching did not instil the skills needed to provide ‘good enough’ parenting.  One particularly common problem was that whilst parents could demonstrate learning when called upon, this learning was not reliably implemented where parents were distractible.  Interventions to prevent boiling formula milk being given to babies, to prevent overdoses of medicine, babies left unattended in the bath were not unheard of – and whilst some parents learned to avoid these situations, not all did.  Some of the most agonising cases also concerned domestic violence by fathers who often did not have learning disabilities.  In such situations, the mother was often left with the unbearable choice of staying with her abusive partner, who was able to provide the support and planning needed to demonstrate ‘good enough’ parenting, or to fail to demonstrate that she could do this alone and thus lose her child.  I cannot begin to imagine the pain these families went through, but I can recount that these were the most distressing and difficult moments of my working life.  There were families that came back several times over the years to replay this nightmare scenario, often – but not always, with the same results.  It occurred to me on several occasions that if these parents lived within more supportive communities, or had more support from families (most were themselves brought up in care) or the state, they might have been able to safely parent.  But people with learning disabilities are, as yet, a very significant distance from such an ideal situation.

Whilst systematic sterilisation is undoubtedly morally repugnant, and prevention of sexual encounters altogether may result in significant violations of bodily integrity and indeed dignity, it is simply not possible to hold up our hands and say that we should abstain from involvement altogether.  I concur with Judge Mostyn and Lord Justice Munby that we should be cautious about setting the bar for capacity to consent to sex too high, such that people – for instance – with learning disabilities could not enjoy sexual relations and are subject to major infringements of their liberty to avoid them.  The structure of the Mental Capacity Act regarding sex means that we cannot take a person’s ‘best interests’ into account.  This is because consideration of ‘best interests’ only comes into play once someone is said to lack the mental capacity to take a decision for themselves; the decision to consent to sex can never be taken on behalf of another person.  This seems both wise and prudent.  However, I would caution against a measure of capacity that viewed sex as a mere mechanical act with attendant ‘biological’ risks.  Surely an understanding of the risks of possible infection or pregnancy requires a comprehension that these will have major practical and emotional sequellae, sometimes life changing.  I do not envy the decisions that must be made by those who care for Adam; but I hope those providing him with sex education take some trouble to ensure he understands more than the minimal criteria set out by the court.


[Edit: I've just found a fantastically interesting, useful and free article by Peter Bartlett, from Nottingham University, on issues relating to dementia and sex in care homes.  This particularly focuses on the Sexual Offences Act 2003, and it well worth a read.]