Court of Protection Update - December 2024

Since the last update earlier this year there have been a number of interesting Court of Protection cases and the Court of Protection hub provides a useful summary which can be accessed here https://www.courtofprotectionhub.uk/cases

Below, the focus is on two cases that are different in many respects, but the similarity between them is that both are concerned with the treatment of pre-existing long-term relationships. The first case, MA v A Local Authority and Ors [2024] EWCOP 48 (T2), was an appeal case in which the court was asked to consider contact between a couple who had been married for nearly 60 years. The second case considered below, PS (Severe short term memory loss: Capacity to engage in sexual relations) [2024] EWCOP 42 (T2), was concerned with capacity in respect of sexual relations.

When capacity is lost later in life there are often a plethora of matters to be dealt with – houses to be sold, belongings to be distributed, placement moves, care packages to be commissioned, etc. but there will often be partners, husbands and wives involved and their role may not be so straightforward. Capacitous individuals can make unwise decisions and possibly this is no more true than in matters of the heart. In biblical times it was said that “the heart is deceitful above all things, and desperately wicked: who can know it?” The answer is probably no one, but the Court of Protection can at least help guide the way through these difficult and deeply personal situations.

MA was heard in February of this year but has only recently been published. This appeal was heard by HHJ Smith sitting in Newcastle and was brought against a determination that it was in the best interests of each spouse to a marriage of more than 60 years that each have no form of contact with the other. Contact was, however, to be subject to ongoing review by the responsible public bodies. The broad facts were that both parties, MA and AA, lacked capacity in respect of contact decisions. Both AA and MA had dementia but required different care provision and so could no longer live together. Their placements were some eight miles apart. Whilst MA appealed the decision, AA opposed the appeal. The public bodies also opposed the appeal. AA’s dementia was more advanced, but MA required more specialist care given her challenging behaviours. The couple initially moved to Placement 1 care home together, occupying the same room and sharing a double bed for a year. AA’s health then deteriorated and he lost a lot of weight, which was attributed to ’A's resistance to the administration of necessary care and help to AA. AA then suffered a fall and was placed on a different floor of the Care Home upon discharge from hospital. MA was served with notice to leave the placement shortly afterwards and was moved to a Placement 2. A staged plan to reintroduce contact was to be implemented and tested by means of telephone, video and face to face contact. Later that year, an MDT meeting concluded that video and face to face contact between MA and AA end. An application to the court followed; MA sought a declaration that the cessation of contact between the couple was a breach of MA’s Article 8 rights and the local authority sought approval of termination of all forms of contact between the couple, including telephone and the exchange of letters and photographs.

The Judge at first instance ordered It was lawful and in AA and MA's best interests for there to be no contact of any form, at this stage.

Eight grounds of appeal followed:

When determining best interests, insufficient weight was placed on MA’s past and present wishes and feelings - the appellant contended that the judge at first instance fell into error because in balancing s4 best interests factors, the Judge applied an erroneous finding that MA’s present and more recent desire to see her husband was less strong.
Insufficient weight was placed on AA’s past and present wishes and feelings – AA had expressed that yes, he would like to see [MA], “she is my wife” and also that AA expressed an expectation that husband and wife should be together and that he should be with MA.
Insufficient weight was placed on the mutual beliefs and values of both MA and AA that would be likely to influence their decision if they had capacity – the length of their marriage was compelling evidence of beliefs and values that would likely influence their decisions if capacitous and should have informed an integral part of the court’s analysis.
The judge's analysis on the benefits/burdens of a move for AA to [Placement 3] was wrong in law.
The judge's best interests' analysis on the benefits/burdens of contact between MA and AA was wrong in law as key factors are omitted… insufficient weight was placed on the fact that contact would accord with past and present wishes and feelings and beliefs and values but furthermore, the judge failed to weigh in the balance the positive words of love and affection exchanged during contact sessions, wrongly approached the painful and false belief that AA has or is having an affair with J who resides at his care home (he has referred to J as his wife or girlfriend) as militating against contact rather than contact being a means of disabusing MA of any affair.
Set out criticisms which went to overall approach adopted by the judge;
and raise no separate grounds but go to the balancing exercise.
The judge erred in his analysis under Article 8 ECHR and failed to provide adequate reasons for this decision.

Permission was given to appeal on seven grounds. On the latter ground, permission was refused.

Having given permission, HHJ Smith dismissed the appeal on all grounds in any event on the basis that having regard to the judgement at first instance, which was careful and thorough, His Honour was satisfied that none of those matters and the grounds advanced amount to reasons sufficient to undermine the decision or give rise to the conclusion that the decision was wrong - the “plainly wrong” test was effectively not met (Volpi and another v Volpi [2022] EWCA Civ 464).

But what then of the sanctity of marriage? HHJ Smith clearly had regard to this, stating, “It is difficult to think of more compelling evidence of long-lasting engrained beliefs underlying the way in which each of the protected parties conducted their entire lives than a marriage of this length. Although the duration of this marriage certainly represents powerful and compelling evidence of well-established values and beliefs of both MA and AA, [the district judge] rightly identified the sad realities of the present situation in terms of options and practicalities and the compelling and overwhelming evidence of distress and responses of both parties to this enduring marriage. He was also entitled to accept the evidence of the Social Worker that AA understands the concept of marriage rather than remembers his own.”

It is, perhaps, a useful reminder, to us all, that “until death us do part” is not a given for more reasons than we may usually consider. How do we raise this topic with loved ones or clients when considering the future? Do we need to if the Court of Protection is there to act as the decision maker? It is impossible to foresee every future scenario and this case demonstrates how important the Court of Protection is in navigating a way through the virtually unthinkable.

The second case, which although very different, also concerns a long-term relationship. PS was heard by HHJ Burrows sitting in Preston. PS was a 79 year old woman who suffered from short term memory loss due to alcohol related amnesiac syndrome. The court was asked to determine whether PS had capacity in respect of, amongst other things, engaging in sexual relations. PS had only had two significant relationships in her life, that with her husband and, after he passed away, a second relationship with “WP”, a long-term friend. PS and WP lived together for almost two decades and both expressed a desire to continue their sexual relationship. The care home where PS lived had, however, put in place a protocol to prevent the couple from having time alone together in PS’s room because of concerns around PS’s capacity (or lack thereof) to consent to sex.

To make matters more complicated, PS had mistaken other men for her partner, WP and so there were obvious concerns around her ability to assess the risks of a person with whom she was having contact. Subsequently, PS was found to lack capacity to make decisions about contact with people in general and WP specifically. The court referenced Mr Justice Poole in Hull CC v KF [2022] EWCOP33 (at [24]): “Decisions about capacity must be coherent and allow those responsible for caring for and safeguarding KF to make practical arrangements”. HHJ Burrows continued, “it may be thought that if P lacks the capacity to decide whether to have contact with a person she also lacks capacity to engage in sexual activity with that person. Certainly, those managing P’s care in a situation where contact is regulated, but sexual activity is permitted have a very difficult job when formulating what is (in effect) an “intimacy care plan… That being said, there is no reason in principle why a person may lack capacity to make decisions with contact with a person or persons in general but have capacity to engage in sexual activity with a person or persons.”

Referring to the Supreme Court in A Local Authority v JB [2021] UKSC 35, the Court noted that the information P must be able to understand, retain, use and weigh (before communicating his decision) is:

(1) the sexual nature and character of the act of sexual intercourse, including the mechanics of the act;

(2) the fact that the other person must have the ability to consent to the sexual activity and must in fact consent before and throughout the sexual activity;

(3) the fact that P can say yes or no to having sexual relations and is able to decide whether to give or withhold consent;

(4) that a reasonably foreseeable consequence of sexual intercourse between a man and woman is that the woman will become pregnant.

(5) that there are health risks involved, particularly the acquisition of sexually transmitted and transmissible infections, and that the risk of sexually transmitted infection can be reduced by the taking of precautions such as the use of a condom.

The information relevant to the decision in this case did not include pregnancy (4) given PS’s age. The Court also accepted that given the monogamous and long-standing nature of the relationship, that PS did not need to meet the requirement in respect of sexually transmitted diseases (5). The court was satisfied PS could understand and weigh the issues in (1) and (2). Given PS’s short term memory, requirement (3) was more difficult for the court to grapple with.

What was found to be of significant importance in this case was “that the sexual activity here is between established and loving partners. WP can be trusted to ensure that he behaves appropriately within the context of their relationship,” and ultimately, whilst being finely balanced, the Court found that “it is important to avoid the protection imperative in cases of this sort, where the easiest thing in the world is to prevent PS and similar people in her position from doing what they want because firstly, facilitating it is too complicated and secondly there will still be a risk. Neither of these arguments are what this Court is about.”

So between these two different cases – one is about contact, the other about sexual relations, one starts from there being a lack of capacity, the other a lack of capacity is not determined – what do they tell us about the approach of the Court of Protection when it comes to long term relationships and undeniable beliefs, values and desires that pre-exist the loss of capacity? Firstly, it is clear that in PS it was important the PS was still considered to benefit from the loving and caring relationship. If she had not then it does not seem possible to see how the court would have concluded she had capacity in respect of sexual relations if the relationship was unhappy, abusive or of no value to PS. And in MA, had the contact been of benefit to the parties it no doubt would have continued. It does not necessarily sit easily to contemplate that 60 years of marriage could end in no contact with a spouse. It also does not necessarily sit easily that someone with short term memory and who lacks capacity in respect of contact can also make capacitous decisions in respect of sexual relations. But to paraphrase HHJ Burrows, that is what the Court of Protection is about – making difficult decisions that are individually too important to be dealt with in any other way.