By Aisling Mulligan, 15th August 2022
As a barrister practising in Public Health Law in Ireland, I am familiar with the vulnerable client and the myriad complex questions that come before Courts. Ireland is due to commence the Assisted Decision Making (Capacity) Act 2015 (the 2015 Act), which creates a framework for supporting decision making where a person may lack the ability to make the decision themselves.
The 2015 Act and the Mental Capacity Act 2005 of England and Wales, while different, have many similarities. One such similarity is the Court’s power to determine whether a person has capacity to make a decision. It was in this context that I sought to observe a number of hearings in the Court of Protection.
I was put in contact with Celia Kitzinger, who was an invaluable source of knowledge in navigating the process of accessing hearings. Many cases were vacated, and some regional Courts were harder to access, so attending a hearing was not without its difficulties. However, where I was successful in attending, the Court welcomed the observers and judges were extremely considerate, often asking counsel to give a summary of the case so that I and other observers could follow the matter before the Court on that occasion. The Court also confirmed the reporting restrictions with each observer prior to the commencement of the hearing.
The final hearing in the case of KF was called before Mr Justice Poole on the 26th July 2022 (following a directions hearing on 13th July 2022 previously blogged as “Determining capacity for sex with her abuser”). KF has a learning disability which can impact her ability to make decisions at times. The question before the Court was whether KF had capacity to consent to sexual relations with a partner who had previously sexually assaulted her.
KF had previously been before another judge who had determined, on an interim basis (s. 48 Mental Capacity Act 2005) that she did not have capacity to manage her property and affairs, to make decisions about residence, her care or to determine contact with others. An interim order was made determining that KF didhave capacity to engage in sexual relations. The Court therefore had a very specific matter to determine and was presented with a difficult context upon which to determine it. If KF had capacity to engage in sexual relations, was it possible for the Court to deem her to lack that capacity in relation to the individual with whom KF proposed to have sexual relations?
KF, while only thirty-four, was diagnosed with aggressive cancer and would likely reach the end of her life in a few short years at most. It was on that basis, she wished to meet with KW for the purposes of having intimate relations. Unfortunately for KF, it was the unrefuted evidence to the Court that KW had been extremely abusive to KF. There was evidence that the relationship was coercively controlling and that KF had been harmed by KW throughout the relationship. The Court was informed that KW had recently pleaded guilty to sexually assaulting KW by fisting her as a form of punishment for engaging in sexual relations (specifically anal intercourse) with another man. As a result, KF sustained serious internal injuries and may have died had she not been hospitalised.
KW was invited to the hearing but opted not to attend. KF also met with the judge in chambers. He reported that she was adamant that she wished to have the opportunity to meet with KW and that this contact should be unsupervised, as she believed that the contact would be intimate. KF was equally clear that she had capacity to determine relations between herself and KW. The Court confirmed a note of this meeting would be made available to the parties.
The Court focused on the expert assessment of KF (by Dr Laurence Mynors-Wallis).
in determining the matter before it. It had been agreed at that hearing that the independent expert should be asked to reconsider the question of K’s capacity to engage in sex, given the specific facts of this case.
Dr Mynors’ Willis now found that engaging with the fact of past harm and the possibility of future harm) was relevant information that would need to be retained in order to have capacity. As KF did not or could not accept the harm that was perpetrated upon her by KW, Dr Mynors-Willis found that KF did not have capacity to engage in sexual relations. In considering the legal test for capacity to engage in sexual relations, Joseph O’ Brien QC (representing KW via her litigation friend the Official Solicitor) set out the relevant law for the Court. Mr O’ Brien QC outlined that people who do not believe the facts of relevant information can have an effect on whether a person has capacity. KF did not accept the fact that she had been assaulted by KW and this undermined the presumption of capacity. Mr O’ Brien QC also stated that there were limits on the information that would need to be retained in order to have capacity. In particular, only information which was proximate to the decision needed to be retained for capacity to be found. The question was whether KF understood the risk KW posed to her and whether her ability to understand the risk of the said relations was evidence of her lack of capacity. Mr O’ Brien QC outlined that his client would be devastated if she were unable to meet with KW and while there may be an adult protection imperative, that imperative cannot eclipse autonomy. Mr Simon Batt, who appeared on behalf of the local authority agreed with the legal position as set out by Mr O’ Brien QC.
The Court rose to consider the matter but confirmed it would deliver its decision in a way that was accessible to KF at first instance and provide a more detailed decision thereafter.
The Court determined that KF did not have capacity to make the decision to engage in sexual relations. The Court found that if a decision is important, a person must understand the information relevant to that decision to be considered capacitous to make it.
As KF could not retain the information about the assault and could not weigh that information when considering whether KW posed a risk to her, the Court was forced to determine that KF did not have capacity to make decisions about engaging in sexual relations with KW.
Having determined this, the Court considered whether it would be in KF’s best interests to have unsupervised contact with KW. Due to the extensive history of physical harm and KF’s inability to assess risk when it comes to KW, the Court determined that it would not. KF was deemed to be unable to manage the risk associated with contact. The Court did not believe that this risk could be managed effectively by third parties and so the request for unsupervised contact was refused.
When I first heard the matter to be determined, I did not believe that it would be possible for the Court to find that KF lacked capacity to make a decision to engage in sexual relations with KW. That is not to say that I was not deeply concerned by the decision that KF proposed to make but I did not believe that the Court could engage further because it had previously been determined that KF had capacity to engage in sexual relations.
I know from my own practice that people return to abusive partners all the time and while that may be unwise , it is their decision to make. People with the capacity to make a decision may make what others consider to be an unwise decision, but the court has no jurisdiction. It was therefore difficult to imagine, in the absence of any specific deterioration of KF’s mental functioning, what factual matrix would rebut this interim finding.
Engaging with risk is a key component of capacity and the addendum report of Dr Mynor’s Wilkins made it clear that KF was unable to accept and understand the risk that KW posed to her. This, the Court found, rebutted the previous finding that she had capacity.
This hearing proved the value of observing the Court of Protection hearings. The Court engaged in exactly the kind of fact specific assessment the 2015 Act envisages.
My initial view that the Court would be bound by the previous determination on KW’s capacity to engage in sexual relations proved incorrect. The Court’s consideration of all the facts, and the analysis of them, resulted in a more erudite determination. This case proved itself to be a reminder of the value of fact and person specific decision making and the value of a system that supports that process. It was an important lesson I am incredibly grateful to have learnt prior to the commencement of the 2015 Act.
I sincerely hope a similar model of open justice is considered by the Irish Courts as it is an invaluable resource for the public and practitioners alike.
Aisling Mulligan is a practising barrister in the Republic of Ireland, specialising in Healthcare Law. She has a special interest in the area of Capacity Law,, having completed her dissertation on the Capacity Act 2015 as part of her Masters from the Royal College of Surgeons in Healthcare Ethics and Law. During July 2022 Aisling observed approximately 10 remote Court of Protection hearings as part of her research for an upcoming publication. Aisling would like to express her gratitude to Professor Celia Kitzinger for her assistance in accessing hearings and navigating the remote hearing system. Aisling would also like to thank the Court and its staff for their assistance and patience.