London Borough of Ealing v (1) KS (2) LU (3) SK (by her litigation friend the Official Solicitor) (4) MHAS (5) SR (2008) EWHC 636 (Fam)

The Local Authority initiated proceedings in respect of SK, a 33 year old woman with a severe learning disability who also suffered from schizo-affective disorder (treated by medication but, despite this, she has a history of relapse into mental illness) to ascertain whether she capacity to consent to various matters and whether her third marriage was valid. The Authority also sought a declaration that the care plan it proposed would be in her best interest, including the need to prevent family members from interfering with the proposed arrangements, removing her from local authority accommodation and from contact with her unless previously agreed by the Local Authority. Various serious allegations of abuse were made against members of her family, including assault, financial abuse, that family members neglected SK effectively abandoning her without care and support and that her mother (KS) forcing her into three marriages to secure entry rights for extended family members and financial rewards. Her sister (LU) was also alleged to have financially benefited from SK’s third marriage. During the course of the proceedings the Local Authority and KS, LU and MHAS that SK was a protected person under CPR r21(2) as she did not have capacity to litigate on her own account. Nor did she have capacity to consent to marriage at English law, marry, determine where she should live, agree to the removal of an ovarian cyst under general anaesthetic, or consider the issue of contraception. In addition the parties agreed that SK had only fluctuating capacity to consent to sexual relations. The Court ruled confirmed that SK did not have capacity to litigate. Nor did she have the capacity to marry as she sis not understand the nature of the marriage contract or the duties and responsibilities normally attached to marriage. Therefore her third marriage could not be recognised as valid in the UK. In setting out the remit of the Court in respect of best interest determinations the Judge highlighted the need to establish four essential ‘building blocks’. Namely whether mental incapacity had been established, second whether there was a serious judicious issue relating to welfare, thirdly identifying what that issue was and finally, with in mind the Court’s paramount consideration would be the welfare of the incapable adult, determining a balance sheet of factors to decide which course of action is in the best interest of the incapable adult. In respect to a determination as to what would be in her best interest the Judge gave very careful consideration to the allegation and counter allegations that had been made against and by family members during the course of the proceedings. He was able to come to a firm finding in respect of a few of the allegations, but felt that it would not be possible to determine the truth of each of the allegation. However he did not feel that this necessary would prevent him from determining what would be in SK’s best interests. Instead finding that the high level of acrimony within the family was proven by the making of the allegations themselves and that his ‘sufficiently illuminated the family landscape’ for the purpose of drawing up an effective balance sheet to determine best interest. The Court, applying the tests set out in Re MB (Caesarean Section) (1997), confirmed KS did not have capacity to consent to the removal of an ovarian cyst and confirmed that it concluded it was clearly in her best interests for the operation to be carried out and, if medically necessary, for the surgeons to carry out an oophorectomy at the same time. The Court did not however agree that the hospital should insert an IUD contraceptive device during this procedure as this matter was to be discussed by a multi-disciplinary team a month after the proposed surgery. As such it was too early to determine whether the fitting of such a device was in her best interest. Again on the issue of SK’s residence the Court, mindful of the article 8 ECHR rights of both SK and her family members and the limited authority of the Court to interfere with this rights only when it was demonstrated as necessary to protect a vulnerable adult from a abuse or possible abuse, the Court adopted the balance sheet approach to determine that it was in SK’s best interests that she be live in local authority accommodation. Local Authority X v MM (2007) applied. However it did not believe that contact with family members should be prevented, given the importance to KS of her family and the article 8 ECHR rights of all those involved. The Court proposed that the existing contact arrangements be ‘cautiously relaxed’ under careful management of the Local Authority’s mental health team. The Court confirmed that SK’s capacity to consent to sexual relations fluctuated and therefore recommended that her carers be given a list of indicators to identify when she had lost capacity in this area to ensure that there was consistency among the actions of all her cares in this area and that she was afforded proper protection. X City Council v MB (2006) and Local Authority X applied

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