Family Law

The Court of Protection is gearing itself to deal with the practical consequences of the judgment in P v Cheshire West and Chester Council and other; P & Q v Surrey County Council [2014] UKSC 19, [2014] COPLR (forthcoming). The President has recently held a public directions hearing. The substantive hearing is due to take place in June, and will address how best to case-manage the anticipated influx of applications.

However, the more theoretical implications of the Supreme Court's decision have also yet to be resolved. For example, does the principle of the ‘unimpaired comparator' extend beyond the question of an alleged deprivation of liberty? Should it apply equally to determinations of capacity or best interests? A case which raises these questions, while perhaps not providing definitive answers, is that of RB v Brighton & Hove City Council [2014] EWCA Civ 561.

In a well-publicised passage of her judgment in Cheshire West, Lady Hale confirmed that:

'In my view, it is axiomatic that people with disabilities, both mental and physical, have the same human rights as the rest of the human race. It may be that those rights have sometimes to be limited or restricted because of their disabilities, but the starting point should be the same as that for everyone else. This flows inexorably from the universal character of human rights, founded on the inherent dignity of all human beings, and is confirmed in the United Nations Convention on the Rights of Persons with Disabilities.'

The relevant ‘starting point' in determining whether a disabled person has been deprived of their liberty, therefore, is whether the same would be said of an individual without any such disability. In the words of Lords Carnwath and Hodge, ‘the comparator should in principle be a person with unimpaired health and capacity.'

The appellant's argument in RB v Brighton & Hove City Council was that the same starting point should be taken in an assessment of capacity, in particular when considering how P's uses or ‘weighs' information. RB relied on IM v LM and Another [2014] EWCA Civ 37, [2014] COPLR (forthcoming) read in the light of the decision in Cheshire West.

RB was, like LM before him, an individual with a ‘chaotic' past. Like LM, he sought to resume some part of the way of life led before suffering a brain injury. LM had wished to resume a sexual relationship with the partner she had lived with before her injury. RB wanted to drink with the people who had been his circle of friends before he suffered frontal lobe damage. Both had been medically assessed as lacking capacity to make the relevant decisions. For both, their reported inability to weigh information was key to the conclusion that they lacked capacity.

In IM v LM, Peter Jackson J departed from the expert's conclusions and found that LM did have the necessary capacity to consent to sexual relations. This was upheld by the Court of Appeal who found that:

'the notional process of using and weighing information attributed to the protected person should not involve a refined analysis of the sort which does not typically inform the decision to consent to sexual relations made by a person of full capacity.'

Therefore, in Cheshire West terms, the ‘starting point' is an acknowledgment of the way an ‘unimpaired' person might consent to sexual relations, which could well be by means other than a careful weighing up of information. It was argued that the same starting point should be taken when scrutinising the decision-making of a disabled man who wishes to consume alcohol.

The Court of Appeal did not explicitly reject or endorse this use of Cheshire West. The Supreme Court's judgment is referred to only once, in a brief acknowledgement of Lady Hale's summary of history of the Mental Capacity Act. No answer is given as to whether, as a matter of principle, RB's decision-making should be compared to that of an individual with no disability.

If anything, the court refused to compare RB and LM's cases on the grounds that they should not ‘start comparing the decision which RB wishes to make with the decisions which other disabled persons sought to make in other cases.' (para [64], emphasis added). The implication is that no wider principle can be drawn in a ‘highly fact sensitive jurisdiction,' and to do so would create an impermissible ‘judicial gloss' on the wording of the Mental Capacity Act (para [87]).

It is tempting to argue that if non-discrimination is axiomatic, it is axiomatic. If there are some living conditions most people would regard as a deprivation of their liberty, this should be the court's starting point. If there are some types of decision most people make on a less calculated basis, then this too should be the judicial starting point, or at the very least an explicit consideration. To paraphrase Lady Hale, this flows not just from the Mental Capacity Act, but from the universal human rights which underpin it.

The outcome of the case might not have been different had this approach been taken. The unique nature of each person's mental functioning will naturally mean that the same criteria can be applied with different conclusions in each case. However, a clearer indication as to whether the ‘relevant comparator' principle applies to an assessment of capacity would have been helpful.

An application for permission to appeal in IM v LM is currently before the Supreme Court, and a similar application may be made in RB v Brighton. If either of these cases reaches this level of appeal, it is hoped that some clarification is given as to the scope of the ‘unimpaired comparator' principle.

Practical Implications

Even if the theoretical implications of Cheshire West have not yet been fully established, there is a clear consensus that the decision will lead to an increase in the number of applications to the Court of Protection. The President is due to address this in a public hearing in June, when he will consider the following issues:

Procedure

• Whether there is a need for initial applications, or reviews of final orders, to be heard orally or whether they can be dealt with on paper?

• How the court is to deal with the potential increase in the number of reviews required, including the frequency of these reviews.

Written Evidence

• Whether protocols and forms from the Family Division could be adopted in a simplified procedure?

• The potential limitation of evidence to a list of prescribed documents which could be checked administratively by court staff.

• A possible restriction on the length of statements, and the question of a standard format of bundles.

Litigation Friends

• Whether, given the pressure on the Official Solicitor, P always needs to be made a party?

• Whether the Official Solicitor should have any role in initial applications or reviews of final orders?

• The status of and funding for Independent Mental Capacity Advocates.

Funding

The problems caused by a lack of legal aid, or the lack of non-means tested legal aid if detention is authorised under s 16 of the MCA (this issue not having been finally resolved by Charles J in Re UF [2013] EWHC 4289 (COP), [2014] COPLR 93).

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Miranda Mourby is a pupil barrister at Coram Chambers.

She graduated from Cambridge University in 2009 and obtained a Distinction in the Graduate Diploma in Law. While studying for the GDL and BPTC, Miranda undertook a range of voluntary work for organisations such as the Free Representation Unit and the Oxfordshire Youth Offending Team. She has an interest in Mental Health law and has represented clients at Care Programme Approach meetings in medium and high security units, including Broadmoor.

The views expressed by contributing authors are not necessarily those of Family Law or Jordan Publishing and should not be considered as legal advice.