Framing the test of capacity to consent to sex

The Court of Appeal has just handed down a very important judgment on the nature of the capacity to consent to sex.  In IM v LM it considered issues which have been debated back and forth between different judges in the criminal and civil courts since before the Mental Capacity Act 2005 (MCA) came into force.  Two of the key issues which different judges seemed to disagree over were:

1. Is the 'test' of capacity to consent to sex 'issue specific' (ie. is the test just about sex in general) or 'person and situation specific' (ie. are there issues around sex with this particular person, at this place and time, as well)?
2. Does the test of capacity to consent to sex involve merely a need to 'understand' the information, or also an ability to 'use and weigh' the information?

These might sound like rather dry issues, but in fact they go right to heart of fundamental questions about liberty, privacy, autonomy and power in the sexual relationships and in the lives of people with cognitive and intellectual disabilities.

A secret court no more!

So unless you missed the Daily Mail’s blaring headline 'At last, a victory over secrecy in the courts' - the big news is that the Court of Protection is a ‘secret court’ no more! The Independent even ran a story with the headline “Formerly secret court…”

Yes, Sir James Munby has published his Practice Guidance on ‘transparency’ – specifically on the publication of judgments of the Court of Protection and the Family Courts, but also touching upon other issues. There are separate guidance documents for the Court of Protection and for the Family Courts, but they are quite similar and try to harmonise the approach across both courts, despite differing rules. They’re really quite short, but I’ll summarise what it says here anyway:

Whose right is it anyway?

This lovely postcard is from George Julian’s website, which she set up to help LB’s family raise funds for legal representation at LB’s inquest. The website is fantastic – with a world map of destinations for postcards of LB’s buses and other pictures, sold as part of the fundraising effort. So many people, all over the world, moved by LB’s death. I hope our buses postcards keep us thinking and reflecting on how deaths like LB’s can be averted, and what a waste of a beautiful and talented person’s life it is for them to die whilst incarcerated.

Photograph of a postcard reading 'Everyone has the right to life, liberty and security of the person'. The image is of a person reaching towards the sun. The postcard appears to be based on a collage, made by cutting out pieces of paper in simple shapes.

George bought the postcard at the United Nations, and the text is from Article 3 of the Universal Declaration of Human Rights (UDHR). The picture is especially apt for something I’ve been wanting to blog (rant) about for some time now: the universality of the right to liberty.

The right to liberty is contained in many human rights instruments, and most include a right for detainees to take proceedings before a court to determine the lawfulness of their detention. These rights of ‘appeal’ are framed in universal language as well.  Article 5(4) of the European Convention on Human Rights (ECHR), sets it out like this:

‘Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.’

The Mental Capacity Act 2005 deprivation of liberty safeguards (MCA DoLS) were in part created because there was no obvious, accessible or appropriate means to bring proceedings to determine the lawfulness of the detention of ‘incapacitated’ people, detained under the ‘common law’. The mechanism for challenging detention under the DoLS is s21A MCA – which allows an applicant to ask the Court of Protection to determine the lawfulness of various aspects of a standard authorization for detention issued by a supervisory body (a local authority exercising its DoLS functions). The Court of Protection may vary or terminate standard authorizations as it sees fit. The trouble is, this ‘appeal’ mechanism is pretty obscure and is poorly understood.

Sign Age UK's petition to close the human rights loophole in care!

I've written many times before on this blog about the utter disgrace that users of private and independent sector care services are not protected by the Human Rights Act 1998.  This is because of a 'loophole' which arose out of a controversial ruling by the House of Lords in a case called YL v Birmingham City Council.  In that case, the House of Lords prioritised poor old Southern Cross' right to make a profit* over the rights of an elderly lady with Alzheimers whom they wanted to evict from the care home where she lived because they had fallen out with her family.  Mrs YL's lawyers were concerned that transferring her to another care home in such a late stage of her Alzheimer's could seriously harm her health, and perhaps even cause her death.

Campaigners have been trying to close this loophole for years now.  Every so often somebody will introduce a private members' bill or an amendment to another piece of legislation to sort it out, and the government of the day won't get behind it (Paul Burstow MP has been particularly persistent in trying to fix this issue, sadly without success).  The Labour government introduced an amendment to the Health and Social Care Act 2008 which said that if care was arranged under the National Assistance Act 1948 then the care provider was 'public authority' for the purposes of the HRA.  Unfortunately, this didn't protect people using services arranged under other statutes, such as statutes to provide services to people in their own homes (as opposed to care homes) or aftercare for people who had been detained under the Mental Health Act.  In any case, the new Care Bill going through Parliament at the moment will repeal these statutes - and so the amendment which protects service users who are placed under the National Assistance Act 1948 won't apply any more.  Peers in the House of Lords have introduced an amendment to the Care Bill to ensure that everybody using care services are protected by the HRA.  

The government is now trying to remove the clause in the Care Bill which would mean that care service users were protected by the HRA.  Age UK have launched a petition to retain clause 48 - the clause which would mean care service users are protected by the HRA.  I strongly, strongly, urge you to sign it.

Conference on Resource Allocation Systems

One of the most read pieces on this blog was some research which found that Resource Allocation Systems (RASs) - which are often used to calculate 'personal budgets' in social care planning - are often not very transparent.  Since then, I've done some further research with Luke Clements which found that they are often wildly inaccurate, are not especially good at reducing inequalities in resource allocation, can penalise people who live with family and ignore some potentially eligible needs altogether (Series, L. and L. Clements (2013). "Putting the Cart before the Horse: Resource Allocation Systems and Community Care " Journal of Social Welfare and Family Law 35(2): 207-226, FREE pre-print here).  

Coincidentally, around the same time, Peter Beresford, Colin Slasberg and Peter Schofield also did some research which found that the original data which RAS were developed using suggested they would be very inaccurate, and also reviewed evidence that they were increasing - not decreasing - the bureaucracy around care planning (Slasberg, C., et al. (2012). "How self directed support is failing to deliver personal budgets and personalisation " Research, Policy and Planning 29(3): 161-177, FREE copy here).

We are all speaking about RASs and our research at a National Conference at the King's Fund at the end of February this year (details below).  Sarah Carr - an expert in user involvement in care planning - will also be speaking.  And if that's not enough to get you there, then Joan Bakewell is the keynote speaker!  Details follow below.

Fab PhD Studentships - Overcoming barriers!

I get contacted fairly often by people asking about what it's like to do a PhD.  I always tell them: if you have a topic that makes you bound out of bed in the morning and a good supervisor, then there's nothing better (and if you have an uninspiring topic or a bad supervisor, there's nothing worse...).

Here are some absolutely fascinating looking PhD's with some brilliant supervisors, which are being advertised by the Universities of Leeds, Sheffield and York:

White Rose Inter-Disciplinary Disability Studies Network- Complexity and Disabled Selfhood:

1. Imagining Work: Disabled Young People, Narratives on the Boundaries of Work and Welfare – Supervisors Professor Alan Roulstone, University of Leeds and Professor Peter Dwyer, University of York. This studentship will be based at the University of Leeds.
2. Contesting neoliberal education and able citizenship: Some postconventionalist alternatives – Supervisors Professor Dan Goodley, University of Sheffield and Dr Angharad Beckett, University of Leeds. This studentship will be based at the University of Sheffield.
3. Overcoming the barriers: including people with profound intellectual and multiple disabilities in research – Supervisors Professor Celia Kitzinger, University of York and Dr Kathy Boxall, University of Sheffield. This studentship will be based at the University of York.

PhD's are hard to do without funding, but sometimes funded PhD's do come along covering not only fees but also providing an income which is usually somewhat better than the minimum wage (and can often be topped up with hourly paid teaching). The PhD's come with 'full award paying tuition fees and maintenance'; I'm informed that 'they are available on a 1+3 basis so will pay for an MA in social research also-so they are worth 80K over 4 years, teaching is normally available also'.  I think they are funded by the ESRC - which often means there are additional opportunities for funding and training.

A message from Pembrokeshire

Happy new year!  As some of you may have already noticed, the House of Lords Select Committee on the Mental Capacity Act 2005 has published two volumes of the written evidence it has received and (most of the*) oral evidence, coming to a whopping 1832 pages of evidence on the Act.  I confess, I have not yet read it all...  I am sure the Committee were reading it over their Christmas dinners to get their report ready for February 28th!

One submission by twelve leading Court of Protection lawyers has been making waves in the Independent, which is the first newspaper to pay any serious attention to the Committee.  They have picked up on an issue raised by the lawyers and which I've written about here before - the extent to which judges meet with the people whose capacity and best interests they are determining.  It's good to see the media taking an interest in genuine human rights concerns instead of concocting wild conspiracy theories which distract attention from the real issues. (My drag-net has just picked up that the Mail is now covering the House of Lords Committee, with a headline which typically misunderstands what they are trying to report - the aforementioned barristers gave an example of 'a case in which an autistic young adult had all his teeth permanently removed to stop him self-harming, without the Court’s involvement' (emphasis mine), while the Mail's headline read 'Court orders autistic man's teeth to be removed'. Eh? Oh dear Daily Mail. Sigh.)

A lot of evidence submitted to the Committee is from the usual suspects - laywers, academics (including yours truly), medical and social work practitioners, public bodies, professional bodies, NGOs - a lot of it very interesting and thought provoking.  There is a fair bit of evidence from individual carers and relatives of people with disabilities or dementia, who have had dealings with the MCA or the Court of Protection. There are quite a few shocking tales of disregard for human rights in their stories.  But - at least so far as I can see (and it is possible that I am missing something here) - I can only see one piece of evidence which has attempted to capture what people who have first hand experience of being subject to the Mental Capacity Act (MCA) think about the whole thing.  New years honours go to Pembrokeshire People First for their submission, and the British Institute for Human Rights for producing the guide to giving evidence which this was based on.  It's so important that we listen to the voices of people who are directly affected by the Act, I'm going to repost below what they had to say here for you to read.