This case relates to an adult (MM) who suffers from paranoid schizophrenia, a moderate learning disability and poor cognitive functioning. She is subject to rapid relapse at times of stress. MM had been accommodated by the applicant Local Authority in a unit offering supported accommodation (A). As a result of her challenging behaviour at this placement she was moved to an adult family placement but when this broke down she was moved to a residential home temporarily before being moved more permanently into independent supported living placement.
The central issue for the Court was whether MM should have contact here (including sexual contact) with her long term partner KM. KM suffers from a psychopathic personality disorder and alcohol misuse. The Court heard evidence that KM was disinclined to accept support from social services and had an unstable and at times nomadic lifestyle. He had, in the past, been violent to MM, was alleged to have used her benefit money to buy alcohol and encouraged MM to disengage with psychiatric services which had resulted in MM suffering a relapse in her mental health.
During the time that MM was residing at Unit A it was agreed with KM that he would not visit her and if MM wanted to go out she would return by 8.30pm. However on a number of occasions she had been encouraged by KM to leave the unit without warning and for extended periods of time and at those times had slept rough and not taken her medication. The local authority received information indicating that KM was proposing to take MM to stay with his brother out of the area and applied for a declaration by the High Court that MM lacked capacity
(i) to decide where she should reside
(ii) to decide with whom she should associate
(iii) to have unsupervised contact with KM
and it was contrary to her best interests to be removed from the unit.
In a comprehensive judgment Mumby J reviewed the law relating to vulnerable adults as set out in the Mental Capacity Act 2005 and under the Court’s inherent jurisdiction. In particular he analysed the seemingly incompatible common law position that a person may have capacity to consent to sexual relations but not have capacity to decide matters of contact and residence even where the issue was whether she should have contact with and live with the person with whom she was having a sexual relationship. He questioned how appropriate it was for the court to interfere in restricting and regulating relationships with others where it was agreed that both had capacity to consensual sexual relations. In seeking to regulate MM’s contact with KM the local authority was effectively regulating her relationship with him. He stated that the Court should be cautious in determining best interests of MM and whether those interests could be served by intervening and potentially changing the nature of her relationship with KM.
It was agreed that the test for capacity to consent to sexual relations arose from X City Council v MB NB MAB (by his litigation friend the OS) and the capacity to consent to sexual relations was a question directed to the nature of the activity rather than the identity of the sexual partner. The Court held that the question in this case should be ‘can MM consent to the act of sexual intercourse?’ not ‘does she understand the consequences of having sex with a particular person such as KM?’ In short, the decision is issue specific and not person (or partner) specific. MM was capable of expressing her wishes and feelings upon the issue of contact and residence and made it plain that she wished to continue having contact with KM and to reside with him and the experts agreed that her contact with MM was emotionally fulfilling for her. MM’s wishes and feelings were an important element in determining what was in her best interests despite her lacking capacity.
In relation to Article 8 ECHR there were occasions where the State (local authority) had a positive obligation to intervene in one person’s private life if it was necessary to ensure the rights of another but it should intervene only in exceptional circumstances. If a State was going to interfere what it offered should be better than was previously on offer. The Court should only intervene where there was a need to protect a vulnerable adult from abuse or the real possibility of abuse. There was a delicate balance to be struck between the State’s duty to protect vulnerable adults and its interference in a vulnerable adult’s private life. Interveners should avoid the temptation to always put the heath and safety of a vulnerable adult before their happiness and emotional welfare. The emphasis should be on sensible risk assessment seeking to reduce risks as far as possible rather than eliminating them.
The local authority’s case was that MM was a highly vulnerable individual who required consistent social, medical and psychiatric support to meet her needs. Her relationship with KM was volatile and at times violent and had caused her emotional, physical and psychiatric harm. When living with KM, MM had disengaged with support services and had suffered periods of homelessness and was at risk of suffering substantial harm should she live with KM in future. The local authority’s proposal was that unsupervised contact between MM and KM should be limited to once week for up to 4 hours with a number of conditions attached. According to the local authority, the restrictions were necessary because KM was not supportive of the local authority plans and had previously used unsupervised contact to undermine MM placements. MM had failed to return before after unsupervised contact and during observed contact sessions KM had made inappropriate comments likely to cause distress to MM. The restrictions were for the protection of MM’s physical and mental health. Wholly unsupervised and unregulated contact would expose MM to risk of harm from which the court should protect her.
The Official Solicitor (OS) was unconvinced of the need for the restrictions and felt it was a disproportionate interference with MM’s right to a private and family life in that it was denying her a sexual relationship with KM. The local authority had not taken any positive steps to facilitate a sexual relationship which it was agreed that she had the capacity to enjoy.
The Court agreed with the OS and added that any public body wishing to interfere in the sexual life of someone like MM who had capacity, faced ‘a heavy burden’. “Particularly serious reasons” needed to exist to prevent a breach of Article 8. No such reasons had been demonstrated by the local authority in this case and there was no proper basis for putting obstacles in the way. If by its own acts the local authority was controlling other parts of MM’s life by placing controls and restrictions on it, then it also had to take positive steps to enable her to continue her sexual relationship with KM so that there was no continuing breach of Article 8.
Mumby J ordered that the local authority should draw up plans in respect of MM’s future living arrangements which showed proper respect for her private life and her right to continue to have a sexual relationship with KM.
This case helpfully draws together the law on capacity and best interests in the context of a vulnerable adult who wishes to reside independently and to maintain a sexual relationship which, whilst potentially harmful, is on the other hand, emotionally fulfilling.
It has ramifications for Healthcare Trusts and Primary Care Trusts who provide or commission care in a secure setting which limits a person’s ability to have meaningful contact (including sexual contact) with another person with whom they have an established relationship. It may also place a positive duty on them to enable such relationships to take place where capacity to have sexual relations is not in question.
Trusts should be aware that any interference with a person’s private life even where such interference appears, on the face of it, to be in that person’s best interests could be open to scrutiny by the Courts and that there is now a new statutory framework under section 16 of the Mental Capacity Act for such scrutiny to take place.