The associated risk for social care professionals who fail to take steps to promote capacity

In the case of CH v A Metropolitan Council [2017] EWCOP 12, the Court of Protection’s ruling imposed an important warning to social care professionals. The court ruled that relying upon a person’s lack of capacity as justification for making best interests decisions will trigger a reciprocal duty to take all reasonable steps to enhance that person’s capacity.

In the summer of 2014, Mr and Mrs H wished to conceive a child. The couple sought help from the NHS fertility clinic. Before this, the couple had enjoyed a normal sexual relationship during their seven years of marriage. Mr H had Down’s syndrome and the NHS staff were concerned at his potential lack of capacity to make a decision about having fertility treatment and engaging in sexual intercourse. As a result of the concerns the NHS made a safeguarding report to the local authority. The local authority intervened and decided to instruct a consultant psychologist to assess Mr H’ capacity to engage in sexual intercourse.

Following a long delay of six months, in January 2015 the psychologist reported that Mr H did lack capacity to decide whether or not to engage in sexual intercourse. She did however emphasize that formal sex education should be provided to Mr H and that capacity should be subsequently reassessed. This recommendation gave heed to the principle set out in the Mental Capacity Act 2005, section 1 (3) which states that “a person is not to be treated as unable to make a decision unless all practicable steps to help him to do so have been taken without success”. Unfortunately for Mr H and his wife, the local authority failed to follow this obligation to take all practical steps to enhance his decision-making capacity, despite the psychologist’s advice. The result of this was that Mr and Mrs H’s life was unduly restricted and interfered, which resulted into a long period of celibacy.

The local authority sent a letter to Mrs H telling her she must immediately cease sexual intercourse with her husband as he lacked capacity to consent. Mrs. H was warned that she might face a serious criminal offence and safeguarding measures would be taken should she fail to desist from sexual intercourse with her husband. Mrs H heeded the warning of the local authority and moved into a separate room. This had a devastating effect on the marriage. Mrs. H ceased affection towards her husband which caused confusion for Mr H. This was further exacerbated by his learning difficulties.

The local authority failed to implement the sex education programme for Mr H. A year following the local authority decision, Mr. H’s sister applied to the Court of protection to implement the psychologist’s advice. Mr. H’s sex education finally began in June 2016, 15 months after the couple had been told to cease sexual relations.

Following two consecutive sessions of sex education, a court appointed expert assessed Mr H and found that Mr H did have the capacity to consent to sex. The view was accepted by the local authority and the couple was able to resume their marital relationship.

The overall effect of the local authority’s inaction under section 1 (3) MCA; the long delay and the wrongfully imposed celibacy on the couple (not to mention the inherent breach of Article 9 – right to privacy) saw the local authority pay over £40,000 in costs and damages to Mr H.

This case demonstrates the potentially significant financial costs that may be incurred for interfering with someone’s life without heeding the duty to take all practicable steps to aid a person to obtain capacity to make their own decision.

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