The London Borough of Tower Hamlets v TB & Anor [2014] EWCOP 5

This case concerns 41 year old woman of Bangladeshi origin who married in 1999/2000 and had 4 children- all of whom were removed from her and husband’s ( SA) care following public law children proceedings, with care plans of permanent removal .The woman – TB was assessed as having a Moderate Learning Disability with cognitive functioning of a 4- 8 year old. The husband then in accordance with Islamic law married his first cousin and had a child for whom there remained extant immigration issues.

The issues
All parties  agreed  at trial that TB lacks capacity to make decisions concerning her residence, her care and her contact with SA. The issues to be decided were:-: 

   i) Where should TB live in her best interests? SA says she should return home with 24/7 domiciliary care; the LA and OS say she should not. The LA says that ideally she should move from SS House to the supported placement recommended by Dr Joyce. If unfeasible her care regime at SS House should be improved in the way I have mentioned. The OS would prefer to see if her present placement can be improved before a move to an alternative placement is investigated.

   ii) If TB does not return to 9 Emerald Mansions what should her contact be with SA, in her best interests?

   iii) Does SA have the capacity to consent to sex? This is an abstract question if she does not return to 9 Emerald Mansions, but a very real one if she does.

   iv) Whatever was  decided  about residence does her care regime amount to a deprivation of liberty within the terms of Article 5 of the European Convention on Human Rights 1950 (as incorporated domestically by the Human Rights Act 1998) having regard to the majority decision of the Supreme Court in the combined appeals in the Cheshire West and MIG and MEG cases (reported sub nom P v Cheshire West and Chester Council and another; P and Q v Surrey County Council [2014] UKSC 19, [2014] 1 AC 896)?

Best interests
Section 1(5) MCA 2005 provides that "an act done, or decision made, under this Act for or on behalf of a person who lacks capacity must be done, or made, in his best interests." Section 4 sets out a number of matters that the decision maker must, and some which he must not, take into account when determining the best interests of the protected person ("P"). In particular by virtue of section 4(6)(a) he must take into account P's person's past and present wishes and feelings and by section 4(6)(b) P's beliefs and values that would be likely to influence her decision if she had capacity (although this latter consideration is counter-factual because of course if P had capacity no-one would be making a decision on her behalf). Further, by virtue of section 4(7)(b) he must take into account, if it is practicable and appropriate to consult them, the views of anyone engaged in caring for P or interested in her welfare. In this case that would extend to SA, obviously. 

The court found that  it is in TB's best interests that she should not return to live with SA at 9 Emerald Mansions, notwithstanding that she has expressed a wish to return "home" and notwithstanding that in one sense it involves an interference with her family life. The right to family life is a qualified right and the evidence overwhelmingly suggests that it is in her best interests that she should live apart from SA. For this reason also it is necessary that SA's right to a family life is compromised. 

The court  directed that the LA should use its best endeavours to find an alternative placement for TB in line with Dr Joyce's recommendations and if this is not possible then they must seek to replace the current care team with carers who are better able to promote TB's social life and integration into the community at SS House and in the wider world. 
 contact all parties agreed  that contact for be for shorter periods. And the court determined that  it should be fortnightly for one hour on each occasion. Such contact is important to TB and it is very important to SA, whose rights and interests in this regard are significant. It should be supported contact and may take place in the community.

Capacity to consent to sex 
The question is governed from first to last by sections 1 - 3 Mental Capacity Act 2005. These provide, so far as is material: 

 1. The principles 
  (1) The following principles apply for the purposes of this Act. 
  (2) A person must be assumed to have capacity unless it is established that he lacks capacity. 
  (3) 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. 
  (4) A person is not to be treated as unable to make a decision merely because he makes an unwise decision. 
  (5) An act done, or decision made, under this Act for or on behalf of a person who lacks capacity must be done, or made, in his best interests. 
  (6) Before the act is done, or the decision is made, regard must be had to whether the purpose for which it is needed can be as effectively achieved in a way that is less restrictive of the person's rights and freedom of action.

2. People who lack capacity
 (1) For the purposes of this Act, a person lacks capacity in relation to a matter if at the material time he is unable to make a decision for himself in relation to the matter because of an impairment of, or a disturbance in the functioning of, the mind or brain. …

3. Inability to make decisions 
 (1)… a person is unable to make a decision for himself if he is unable— 

  (a) to understand the information relevant to the decision, 
  (b) to retain that information, 
  (c) to use or weigh that information as part of the process of making the decision, or 
  (d) to communicate his decision (whether by talking, using sign language or any other means). 

 (2) A person is not to be regarded as unable to understand the information relevant to a decision if he is able to understand an explanation of it given to him in a way that is appropriate to his circumstances (using simple language,
visual aids or any other means). 

 (3) The fact that a person is able to retain the information relevant to a decision for a short period only does not prevent him from being regarded as able to make the decision. 

 (4) The information relevant to a decision includes information about the reasonably foreseeable consequences of— 
  (a) deciding one way or another, or 
  (b) failing to make the decision. 

Mostyn J at para 29 stated “So, what the literal words say are: 

 i) There is a presumption in favour of capacity. No-one has to prove that P has capacity.
 ii) P can lack capacity in relation to some particular matters while at the same time have capacity in relation to another. 

That is said to be the case here.

 iii) P lacks capacity if she suffers from a malfunctioning mind or brain and as a result cannot make a decision about the particular matter in question.
 iv) P will not be able to make a decision about the particular matter in question if she cannot mentally process the information relevant to that decision. 
 v) The relevant information includes what might reasonably happen if P were to make the decision one way or the other or not at all. 
 vi) P will only be able to mentally process the relevant information if she can: 

  a) understand it; and
  b) retain it in her mind, even if only for a short period; and
  c) weigh it and use it when making the decision or not, and
  d) communicate the decision, by any means. 

He considered the  recent important dictum of Jackson LJ in RB v Brighton and Hove CC [2014] EWCA Civ 561 at paras 39 and 40:  and quoted at para 39  Hedley J in  A Local Authority v H [2012] EWHC 49 (COP) Hedley J with his customary erudition, sensitivity, lucidity and eloquence convincingly persuades me that I was wrong then, and that the OS is wrong now. At para 25 he said this: 

"And so one turns to the emotional component. It remains in my view an important, some might argue the most important, component; certainly it is the source of the greatest damage when sexual relations are abused. The act of intercourse is often understood as having an element of self-giving qualitatively different from any other human contact. Nevertheless, the challenge remains: can it be articulated into a workable test? Again I have thought long and hard about this and acknowledge the difficulty inherent in the task. In my judgment one can do no more than this: does the person whose capacity is in question understand that they do have a choice and that they can refuse? That seems to me an important aspect of capacity and is as far as it is really possible to go over and above an understanding of the physical component. "

Mostyn J concluded at para 41 that  when determining the question of sexual capacity under the MCA the relevant information as referred to in section 3(1)(a) comprises an awareness of the following elements on the part of P: 

 i) the mechanics of the act; and
 ii) that there are health risks involved; and
 iii) that he or she has a choice and can refuse.

I would add that the excellent witness Dr Joyce was of the firm view that this third element was very important. I would also suggest, with all due humility, that the test as formulated by me has the merit of simplicity. 

Accordingly, applying the above he concluded that it is doubtful that TB has ever had the capacity to decide to have sex, notwithstanding that she has had four children and he declared that TB does not have the capacity to make the decision to have sex. 

Deprivation of Liberty
In this case TB will not be cared for at a place which she understands to be her home. Further, she has the motor functions to achieve a departure in a meaningful sense. She will be monitored round the clock and were she to leave to try to go "home" she would be brought back. Her situation is therefore very different to Katherine's, and the acid test is met. Although I personally cannot see that her situation amounts to state detention in any sense other than by reference to the term of art devised by the majority in the Supreme Court, I must loyally follow that decision. I therefore declare that TB's care regime does involve detention under Article 5. Accordingly there must be at least six-monthly reviews by this Court, no doubt at some considerable expense to the public purse.