A Local Authority v JB [2020] EWCA Civ 735; [2019] EWCOP 39

Mental Capacity Act ◽

Court Of Appeal ◽

Fundamental Shift

AbstractIn Re JB, a local authority, concerned with the risk the respondent posed to vulnerable women, successfully appealed against an order made in the Court of Protection that declared JB, an autistic man with impaired cognition, possessed capacity to consent to sexual relations. In this recent decision, the Court of Appeal has arguably reset the last 15 years of jurisprudence concerning P’s capacity to make decisions in regard to sexual relations. Previous case law focused on P’s ability to consent to such relations, and whether P understood the information relevant to that decision. Notwithstanding the abundance of legal authority, including the recent appellate judgments of Hayden J in London Borough of Tower Hamlets v NB and AU (consent to sex) [2019] EWCOP 27. and B v A Local Authority [2019] EWCA Civ 913. there was a lacuna in the existing law in relation to what information was relevant for the purposes of assessing the issue of capacity to consent to sexual relations. Judges have traditionally adopted a protectionist stance in understanding “the information relevant to the decision” under s3(1) of the Mental Capacity Act 2005 (MCA), with an emphasis on whether P understood the risks of pregnancy and sexually transmitted diseases. However, the Court of Appeal in Re JB has broadened its interpretation of ‘relevant’ information to also include the ability to understand the importance of a partner’s consent to such relations. This is a welcome change to previous courts’ interpretations of the ‘nature’ of the sexual act, moving from an approach focused on the physical sexual mechanics to one which views the nature of sex as a mutually consensual engagement. However, a fundamental shift in how we view such cases is likely to have far-reaching consequences, particularly for local authorities and professionals seeking guidance in relation to their care planning.

Capacity to consent to sexual relations and the Mental Capacity Act 2005

Advances in Mental Health and Intellectual Disabilities ◽

10.1108/amhid-12-2016-0046 ◽

2017 ◽

Vol 11 (2) ◽

pp. 40-46 ◽

Cited By ~ 1

Author(s):

Victoria Butler-Cole

Keyword(s):

Design Methodology ◽

Case Law ◽

Mental Capacity ◽

Sexual Relations ◽

Current Case ◽

Content Type ◽

Capacity To Consent ◽

Current State ◽

Purpose The purpose of this paper is to outline the current state of the Court of Protection case law on capacity to consent to sexual relations and identifies a number of difficulties with the present position. Design/methodology/approach This paper reviews and summarises the current case law. Findings This paper identifies problems arising with the court’s approach to assessing capacity to consent to sexual relations, in particular the problems caused by treating decisions about sexual relations as generic, but decisions about contact with other people as specific. Originality/value This paper is a comprehensive summary of the current state of the application of the Mental Capacity Act 2005 in this sensitive area.

A Local Authority v JB [2020] Ewca Civ 735 And A Local Authority v AW [2020] Ewcop 24: Rethinking Sexual Capacity?

Medical Law Review ◽

10.1093/medlaw/fwaa028 ◽

2020 ◽

Author(s):

Laura Pritchard-Jones

Keyword(s):

Decision Making ◽

Local Authority ◽

Mental Capacity ◽

Sexual Relationships ◽

Working Through ◽

Mental Capacity Act ◽

Court Of Appeal ◽

The Way

Abstract In A Local Authority v JB and A Local Authority v AW, the Court of Appeal and Court of Protection, respectively, had to consider questions regarding decision-making about sexual relationships. This case commentary suggests that both decisions are to be welcomed in many ways, not least in the primacy they give to the role of consent within sexual relationships. However, working through their implications also reveals a number of perplexing legal and practical binds that cannot easily be overcome, and that in fact stem from the way that the Mental Capacity Act 2005 itself works. In light of this, the commentary concludes by suggesting that it is likely that there will be continued dissatisfaction with this area of law and hints that the time may have come to rethink sexual capacity.

Medical treatment and best interests: judicial interpretation of values, wishes and beliefs under the Mental Capacity Act 2005

The Journal of Adult Protection ◽

10.1108/jap-11-2019-0037 ◽

2020 ◽

Vol 22 (3) ◽

pp. 165-173

Author(s):

Owen P. O'Sullivan

Keyword(s):

Medical Treatment ◽

Clinical Decision ◽

Case Law ◽

Decision Makers ◽

Best Interests ◽

Content Type ◽

The Supreme Court ◽

Mental Capacity Act ◽

The Uk

Purpose The prominence of the best interests principle in the Mental Capacity Act 2005 represented an important transition to a more resolutely patient-centred model regarding decision-making for incapable adults (“P”). This paper aims to examine the courts’ consideration of P’s values, wishes and beliefs in the context of medical treatment, reflect on whether this has resulted in a wide interpretation of the best interests standard and consider how this impacts clinical decision makers. Design/methodology/approach A particular focus will be on case law from the Court of Protection of England and Wales and the Supreme Court of the UK. Cases have been selected for discussion on the basis of the significance of their judgements for the field, the range of issues they illustrate and the extent of commentary and attention they have received in the literature. They are presented as a narrative review and are non-exhaustive. Findings With respect to values, wishes and beliefs, the best interests standard’s interpretation in the courts has been widely varied. Opposing tensions and thematic conflicts have emerged from this case law and were analysed from the perspective of the clinical decision maker. Originality/value This review illustrates the complexity and gravity of decisions of the clinical decision makers and the courts have considered in the context of best interests determinations for incapacitated adults undergoing medical treatment. Subsequent to the first such case before the Supreme Court of the UK, emerging case law trends relating to capacity legislation are considered.

3. Consent

10.1093/he/9780198871354.003.0003 ◽

2021 ◽

pp. 37-58

Author(s):

Jo Samanta ◽

Ash Samanta

Keyword(s):

Public Policy ◽

Information Disclosure ◽

Common Law ◽

Case Law ◽

Mental Capacity ◽

Best Interests ◽

Relevant Case ◽

The Common ◽

This chapter deals with consent as a necessary precondition for medical treatment of competent adults. It provides an overview of the common law basis of the Mental Capacity Act 2005, followed by discussion of issues relating to information disclosure, public policy, and the key case of Montgomery and how this applies to more recent cases. It considers the statutory provisions for adults who lack capacity, exceptions to the requirement to treat patients who lack capacity in their best interests, and consent involving children under the Children Act 1989. Gillick competence, a concept applied to determine whether a child may give consent, is also explained. Relevant case law, including Gillick, which gave rise to the concept, are cited where appropriate.

4. Consent to Treatment

Medical Law and Ethics ◽

10.1093/he/9780198810605.003.0004 ◽

2018 ◽

Author(s):

Jonathan Herring

Keyword(s):

Mental Capacity ◽

Best Interests ◽

Living Wills ◽

Ethical Aspects ◽

Capacity To Consent ◽

Delicate Balance ◽

Consent To Treatment ◽

Advance Decisions ◽

This chapter examines the legal and ethical aspects of treating a patient without consent. It considers the meaning of ‘consent’ and the position of patients who lack the capacity to consent. For children who lack capacity, consent involves a delicate balance between the rights of the children and those of their parents. For adults lacking capacity, the Mental Capacity Act 2005 has emphasized the ‘best interests’ test, but has largely left open the question of how a person’s best interests are to be ascertained. The chapter also considers what weight should be attached to advance decisions (sometimes called living wills).

Is mental capacity in the eye of the beholder?

Advances in Mental Health and Intellectual Disabilities ◽

10.1108/amhid-11-2016-0035 ◽

2017 ◽

Vol 11 (2) ◽

pp. 30-39 ◽

Cited By ~ 4

Author(s):

Alex Ruck Keene

Keyword(s):

International Law ◽

Design Methodology ◽

Case Law ◽

Mental Capacity ◽

Persons With Disabilities ◽

England And Wales ◽

Content Type ◽

Purpose The purpose of this paper – written by a practising barrister specialising in the Mental Capacity Act 2005 – is to survey law and practice in England and Wales with a view to sketch out a preliminary answer as to whether it can be said there is, in fact, any legally defensible concept of mental capacity. Design/methodology/approach Review of case-law in England and Wales and relevant domestic and international law, in particular the Mental Capacity Act 2005 and the Convention on the Rights of Persons with Disabilities (“CRPD”). Findings It is right, and inescapable, to say that mental capacity is in the eye of the beholder, and will remain so even if we seek to recast our legislative provisions. Rather – and perhaps ironically – the conclusion set out above means that we need to look less at the person being assessed, and more at the person doing the assessing. We also need to further look at the process of assessment so as to ensure that those who are required to carry it out are self-aware and acutely alive to the values and pre-conceptions that they may be bringing to the situation. Research limitations/implications It seems to me that it is right, and inescapable, to say that mental capacity is in the eye of the beholder, and will remain so even if we seek to recast our legislative provisions. Absent major developments in neuroscience, it will inescapably remain a concept which requires judgments based on interactions between the assessor and the assessed. But that is not thereby to say that it is an irremediably relative and flawed concept upon which we cannot place any weight. Rather the conclusion set out above means that we need to look less at the person being assessed, and more at the person doing the assessing. We also need further to look at the process of assessment so as to ensure that those who are required to carry it out are self-aware and acutely alive to the values and pre-conceptions that they may be bringing to the situation. Originality/value This paper serves as a reflection on the best part of a decade spent grappling with the MCA 2005 in and out of the court room, a decade increasingly informed by and challenged by the requirements of the CRPD.

Fluctuating capacity: the concept of micro- and macro-decisions

BJPsych Advances ◽

10.1192/bja.2020.4 ◽

2020 ◽

Vol 26 (4) ◽

pp. 238-244

Author(s):

Martin Curtice

Keyword(s):

Clinical Practice ◽

Personality Disorder ◽

Clinical Problem ◽

Case Law ◽

Mental Capacity ◽

Routine Clinical Practice ◽

Unique Case ◽

Mental Capacity Act ◽

First Time

SUMMARYThere is much Mental Capacity Act 2005 (MCA) case law emanating from the Court of Protection. This article reviews an important and unique case when the court specifically addressed for the first time the question of fluctuating capacity, a not uncommon clinical problem that can often be complex. It describes how the Court of Protection in Royal Borough of Greenwich v CDM [2019] legally approached an issue of fluctuating capacity in a 64-year-old woman with a personality disorder and chronic diabetes. In doing so it elucidates a new conceptual framework to apply when assessing fluctuating capacity in terms of considering micro- and macro-decisions which can be used in routine clinical practice.

The Supreme Court and deprivation of liberty: where are we now?

BJPsych Advances ◽

10.1192/apt.bp.114.014290 ◽

2015 ◽

Vol 21 (6) ◽

pp. 417-424

Author(s):

Nick Brindle

Keyword(s):

Supreme Court ◽

Social Care ◽

Case Law ◽

Legal Implications ◽

Health And Social Care ◽

The Supreme Court ◽

Low Threshold ◽

Mental Capacity Act ◽

Acid Test

SummaryDeciding on where the tipping point between restrictions and deprivation arises in care settings has important legal implications, but until recently case law has not much helped to resolve these challenging issues. An important milestone has been the Supreme Court judgment in the so-called Cheshire West case. This judgment, handed down in March 2014, set a low threshold to apply (the ‘acid test’) in deciding when someone may be being deprived of their liberty and therefore that additional legal authorisation is required. The application of the acid test is not straightforward and its effects are wide-ranging. In this article, I discuss the evolution of the concept of deprivation of liberty in health and social care, the implications of the judgment and the application of the acid test. I also briefly highlight the interface between the Mental Capacity Act 2005 and the Mental Health Act 1983.

Understanding community care law in England and Wales

Advances in Psychiatric Treatment ◽

10.1192/apt.bp.108.006056 ◽

2009 ◽

Vol 15 (6) ◽

pp. 428-433 ◽

Cited By ~ 1

Author(s):

Danny Allen

Keyword(s):

Mental Health ◽

Community Care ◽

Mental Health Problems ◽

Case Law ◽

Mental Capacity ◽

Care Provision ◽

Care Programme ◽

England And Wales ◽

SummaryAlthough psychiatrists in England and Wales are generally familiar with the Mental Health Act 1983 and the Mental Capacity Act 2005, there is a body of law that is available to assist patients in the community with which they are generally less familiar. There are two main reasons for this. The first is that it is a rather confused amalgam of different statutes and case law affecting each other in ways that are less than clear. The other is that the care programme approach (CPA) was meant to cut through all this and make care provision straightforward. In fact, the latter has never been the case and community care law has always sat uneasily alongside the CPA, but in October 2008 the CPA was withdrawn from some patients with mental health problems. This article explains what is meant by community care law and how psychiatrists can use it to help their patients.

Medical Law and Ethics

10.1093/he/9780198846956.001.0001 ◽

2020 ◽

Author(s):

Jonathan Herring

Keyword(s):

Case Law ◽

Mental Capacity ◽

Medical Law ◽

Legal Principles ◽

Reality Check ◽

Law And Ethics ◽

Feminist Perspectives ◽

The Law ◽

Mental Capacity Act ◽

Court Of Appeal

Medical Law and Ethics covers not only the core legal principles, key cases, and statutes that govern medical law, but also explores the key ethical debates and dilemmas that exist in the field to ensure that the law is firmly embedded within its context. The title highlights these debates, drawing out the European angles, religious beliefs, and feminist perspectives which influence legal regulations. Other features such as ‘a shock to the system’, ‘public opinion’, and ‘reality check’ introduce further sociological aspects, contributing to the way in which the subject is approached. This new edition also includes coverage of new Guidance issued by the GMC and the new Protection of Liberty Safeguards. It also outlines important case law developments on the law on mental capacity and euthanasia, including the Alfie Evans and Tafida Raqeeb litigation, case law interpreting the Mental Capacity Act, and the Court of Appeal in Conway.