Chapter 2: Consent - Adults
This is part of the online companion site to the book Medical Treatment: Decisions and the Law - The Mental Capacity Act in Action, edited by Christopher Johnston, written by members of 3 Serjeants' Inn and published by Bloomsbury Professional in 2010.
The site provides (1) updating material as it becomes available and (2) hyperlinks to website addresses given in the hard copy. The material is organised according to the book's chapter headings. Click on the chapter headings on the left-hand side to access the material for other chapters.
Updating material
---------------------------------------------------------------------------------------------------------------------------------
Update to Chapter 2 (Consent – Adults), paras 2.2-2.8 re capacity; Chapter 5 (Going to Court), para 5.2 (Courts with jurisdiction to deal with medical treatment cases)
Added 26.11.10 – Case of LBL – capacity and inherent jurisdiction
LBL v RYJ and VJ [2010] EWHC 2665 CoP, 22.9.10
This case concerned a dispute over whether an 18 year old suffering with epilepsy associated with a brain injury and significant learning difficulties lacked capacity to decide about residence and contact. Macur J determined that the presumption of capacity was not displaced noting the woman’s ability to process decision-making was “mixed with a cocktail of conventional adolescent rebellion”.
The local authority therefore sought orders under the inherent jurisdiction that made determinations about RYJ’s welfare and her finances. Macur J stated that whilst she did not doubt the availability of the inherent jurisdiction to supplement the protection afforded by the Mental Capacity Act 2005 for those who, whilst ‘capacitous’ for the purposes of the Act, were ‘incapacitated‘ by external forces – whatever they may be - outside their control from reaching a decision. However, the inherent jurisdiction was not available to displace autonomy in decisions. She therefore rejected the contention of the local authority that the inherent jurisdiction of the court could be used in the case of a capacitous adult to impose a decision upon him/her whether as to welfare or finance. What the court could do via its inherent jurisdiction was facilitate the process of unencumbered decision-making by those who they have determined have capacity free of external pressure or physical restraint in making those decisions.
Link to transcript
---------------------------------------------------------------------------------------------------------------------------------
Update to paragraph 2.5 [Definition of capacity and its assessment; Weighing information as part of a decision-making process]
The developing case law on capacity to consent to sexual relations etc
D County Council v LS [2010] EWHC 1544 (Fam) (Link to source)
Bridget Dolan of 3 Serjeants’ Inn was appointed as the Advocate to the Court in LS.
Mr Justice Wood revisited his decision ([2009] EWHC 123 (Fam)) that LS had capacity to consent to sexual relations in the light of the House of Lords decision in R v C [2009] 1 WLR 1786.
In his initial decision Wood J had adopted the pre-MCA approach taken by Munby J (as he then was) in the context of the inherent jurisdiction of the High Court. Munby J had held that the test for capacity to consent to sexual relations was issue specific and not person (partner) specific (see MM v Local Authority X [2007] EWHC 2003 (Fam)).
In R v C, a decision involving the criminal law, Baroness Hale had stated that she was “far from persuaded” that the views previously expressed by Munby J in the civil context were correct.
Wood J held that (a) there should in principle be a significant degree of conformity in the tests for establishing capacity in both the civil and the criminal courts (b) that the approach applied in R v C was consistent with s3 MCA, and hence (c) the MCA statutory scheme should now be applied in preference to the previous civil case law; (d) capacity to consent to sexual relations was person and situation-specific in so far as there may be person and/or situation specific factors which impeded or undermined a person's capacity to make a choice.
In relation to the test for capacity to consent to contraception, see A Local Authority v Mrs A and Mr A [2010] EWHC 1549. (details)
Hyperlinks
Paragraph 2.2 - Footnote 2:
The Code of Practice can be found here
Paragraph 2.8 - Footnote 3:
Court of Protection case no 11649371, 28 May 2009 (available here) per Her Honour Hazel Marshall QC at para 40: ‘There is a danger, with the current spotlight on the new and more sophisticated approach to mental capacity contained in the Act and the very extensive Code of Practice, that general practitioners will think that that they cannot or should not complete such an assessment for the court because of lack of supposed expertise – as happened in this case. This would be likely to lead to their declining to do so in the very cases which are problematic, because there is doubt whether the borderline has been crossed, between decisions which are the product of impaired powers of reasoning, or are merely eccentric unwise or unreasonable decisions in the opinion of others. It would be unfortunate if a conclusive specialist assessment came to be regarded as necessary before the court would accept jurisdiction at all.’As to the court’s interimjurisdiction under MCA s 48 see CHAPTER 5: Procedure at PARA 5.23: The court’s power to make medical treatment decisions.
Paragraph 2.15 - Footnote 1:
www.adrtnhs.co.uk ; A form of directive published by the ADRT is illustrated in APPENDIX 2.1: Draft Advance Directive; Draft Advance Directives can be found at: http://www.adrtnhs.co.uk/pdf/EoLC_appendix1.pdf