ORBIS LAW & ONE CROWN OFFICE ROW 14 th SEPTEMBER 2017 EDUCATION AND MENTAL CAPACITY TRAINING

1. ORBIS LAW & ONE CROWN OFFICE ROW 14th SEPTEMBER 2017 EDUCATION AND MENTAL CAPACITY TRAINING FOR LOCAL GOVERNMENT LAWYERS • 10.30 Gathering • 11.00 Morning Session: Special Educational Needs (led by Amelia Walker) • Update on developments in SEN • 19-25 • Specific challenges in Education law: • What is education/special educational provision • Human Rights and Education Law (Adam Wagner) • Capacity issues • Radicalisation and education (Martin Downs) • 13.00 Lunch • 14.00 Afternoon Session: Work In the Court of Protection (led by Richard Ager) • 5. Case Update by Dominic Ruck-Keene • 6. Discussion on Case Management and Efficient working in COP (with particular reference to the Extended Case Management Pilot) (with Martin Downs) with a sharing of best practice (on anonymised basis) • 16.00 Close

2. ORBIS LAW & ONE CROWN OFFICE ROW 14th SEPTEMBER 2017 WORK IN THE COURT OF PROTECTION FOUR RECENT COURT OF PROTECTION CASES Dominic Ruck Keene

3. Re MN (An Adult) [2017] UKSC 22 • Important decision on the limits on the role of the Court of Protection • MCA 2005 puts decision maker in the place of someone ‘P’ unable to make a decision for themselves. The decision maker can make no decision that the P could not have made • Lady Hale ‘“So what is the decision-maker to do if he has reached the conclusion that a particular course of action is in the best interests of P but the body who will be required to provide or fund that course of action refuses to do so? Specifically, what is the role of the Court of Protection where there is a dispute between the providers or funders of health or social care services for a person who lacks the capacity to make the decision for himself and members of his family about what should be provided for him?”

4. Facts • Profoundly disabled man previously in care of local authority when under 18. Local authority sought order from COP re regulating MN’s contact with his family • Care home was unwilling to facilitate MN’s visit to his family home, requiring alternative carers to be trained and paid to enable it • Local authority argued that it was inappropriate to use COP proceedings to try and obtain a best interests declaration in order to influence a public law decision

5. Judgment • Lady Hale “the Court of Protection does not become the guardian of an adult who lacks capacity and the adult does not become the ward of the court” • “So how is the court’s duty to decide what is in the best interests of P to be reconciled with the fact that the court only has power to take a decision that P himself could have taken? It has no greater power to oblige others to do what is best than P would have himself. This must mean that, just like P, the court can only choose between the “available options” • The COP did not therefore have power to order the CCG to fund what the parents wanted. Nor did it have power to order the actual care providers to do that which they were unwilling or unable to do

6. DM v Y City Council [2017] EWCOP 13 • Decision regarding the weight to be given to individual’s wishes Facts • 69 year old man who had a long history of alcoholism and a longstanding diagnosis of Korsakoff's syndrome. He neglected himself to a significant degree necessitating admission to hospital and was discharged to a 'dry' care home, apparently with his agreement • Medical evidence was that if DM resumed drinking he would become very unwell, as he had advanced liver disease, and had a life expectancy of about 7 years if not drinking and 3 years if drinking even a relatively modest amount • DM wished to leave the care home and to consume alcohol and brought proceedings challenging his deprivation of liberty under s.21A MCA 2005.

7. Judgment - DM should remain in the care home ‘a finely balanced’ decision. • It was not clear that DM would be happy in a new care home as his alcohol consumption would not be unlimited, and he would suffer a faster decline in his mental and physical health. • Even though DM had a compulsive wish to drink, when he had been taken to visit the alternative care home, he said that he didn't know if he wanted to move there and would need to live there for a month or so before deciding. This suggested his wish for drink was not as strong as might have been thought. • DM would lose his only friendship if he moved and it was far from certain that if DM changed his mind, he could return to the same placement • No benefit in a trial period in an alternative home as this would just give DM a renewed taste for alcohol and it would be cruel to expect him to revert to a dry environment if the trial failed

8. CH v A Metropolitan Council [2017] EWCOP 12 • Highly unusual case in which the court was asked to approve a settlement by the Local Authority to the Claimant, who had Downs Syndrome. • The claim for damages arose after the Local Authority assessed the Claimant as lacking capacity to consent to sexual relations with his wife and that such relations could only be continued once he had undertaken a course of sex education

9. CH was born with Downs Syndrome and an associated learning difficulty. In 2010, he married his wife, WH, and they lived together in his parents’ home. • A consultant psychologist concluded that CH lacked capacity to consent to sexual relations/ WH was advised that she must abstain from sexual intercourse with her husband as that would, given his incapacity to consent, comprise a serious sexual offence under sections 30-31 of the Sexual Offences Act 2003. The psychologist made it clear that CH needed a course of sex education to assist him to achieve the necessary capacity. • WH was also given to understand by the local authority that should she fail to comply, safeguarding measures would be taken which would require the removal of CH (or herself) from their home. His wife moved into a separate bedroom and significantly reduced any expression of affection so as not “to lead him on”. • the Local Authority failed to implement that advice regarding sex education and it required proceedings initiated by CH’s sister to bring about both that education and, in due course, a determination that CH had the requisite capacity

10. Claim was then brought under the Human Rights Act 1998 on the basis that the local authority had breached CH’s rights under Article 8 ECHR. Judgment • Sir Mark Hedley “gravamen of the claim is the delay in implementing the advised programme of education: that is to say the period between 27th March 2015, when conjugal relations were required to cease, (although the lack of capacity had been established in January 2015) and the start of the first sexual education programme on 27th June 2016. Given that the Local Authority would have needed some time to set up the programme, the actionable delay over all is one of not less than 12 months. The Local Authority has not sought to contest that conclusion nor that they are apparently in breach of Section 6(1) of the HRA 1998.”

11. “This case is unusual; indeed thus far it may be unique in being applied to a settled, monogamous and exclusive married relationship. In those rare cases where the courts have made declarations of incapacity to consent to sexual relations, they have generally been cases of restraining sexual disinhibition to protect from abuse or the serious likelihood of abuse. However, logically the question of capacity must apply also to married relations and the criminal law makes no distinction between settled relations and sexual disinhibition or indeed between sexual relations within or outside marriage. Society’s entirely proper concern to protect those who are particularly vulnerable may lead to surprising, perhaps even unforeseen consequences. Such, however, may be the price of protection for all.” • “[m]any would think that no couple should have had to undergo this highly intrusive move upon their personal privacy yet such move was in its essentials entirely lawful and properly motivated. As I have said, perhaps it is part of the inevitable price that must be paid to have a regime of effective safeguarding”

12. Re (IH) Observance of Muslim Practice [2017] EWCOP 9 • Two questions in relation to a 39 year old Muslim man with profound learning disabilities, namely whether it was in his best interests • to fast during the daylight hours of Ramadan; and • for his axillary (i.e. underarm) and pubic hair to be trimmed, in accordance with Islamic cultural and religious practice insofar as it was safe and reasonable to do so. • IH’s impairments meant that he did not have any understanding of religious matters nor of the consequences of hair removal or fasting, nor was he capable of meaningful communication over abstract issues • IH, through the Official Solicitor, made the application for a declaration that it was not in his best interests to fast during Ramadan.  His father, TH, applied for a declaration in relation to the trimming/removal of his hair

13. Judgment re requirements for consent to decision to fast – need for understanding of: • What fasting is; the lack of food and liquid, eating and drinking; • The length of the fast; • If for religion, for custom (family or otherwise), for health-associated reasons, or for other reasons; • If for religion reasons, which religion and why; • The effect of fasting on the body; • What the consequences would be of making a choice to fast and the risks of choosing to not fast or of postponing the decision. • Assessment of the requirements of Islam. • Cobb J held that there no Islamic obligation on IH to fast given his lack of capacity. IH has never been required to fast by his family, and has not fasted while in their care. He has not, thus far, fasted while in the care of the Local Authority

14. Judgment re requirements for consent to decision re hair removal: “33. Health or social care bodies who make the arrangements for the care for adults who lack capacity owe an obligation, so far as is reasonably practicable and in the interests of the individual, to create a care environment and routine which is supportive of the religion of P, and to facilitate P’s access to, or observance of religious custom and ritual. All forms of liturgy should, where practicable, be accessible to persons with disabilities. This view is consistent with Article 9 of the European Convention on Human Rights, and the right enjoyed by those who lack capacity as for those who have capacity, to freedom of religion and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance. … 34. The duty outlined above is consistent with the expectation that in best interests decision-making for someone who lacks capacity, the court will take account, so far as is reasonably ascertainable “the beliefs and values” of that person which would be likely to influence his decision if he had capacity these must include, where relevant, religious beliefs and values.”

15. Key points arising from this case for care providers and commissioners are that they should: • ensure that care packages for persons lacking capacity facilitate observance of their religious customs/rituals where it is reasonably practicable to do so. • ensure that religious customs/rituals are assessed to ensure that there is a benefit to the incapacitated adult balanced against any avoidable risks associated with the ritual to both them and their carers. • ensure that religious customs/rituals are assessed on their merits in each individual case – every case will turn on its own facts and the risks and benefits associated with a particular custom/ritual will vary from case to case.