What now for deprivations of liberty?
What will the effect of the postponement of the Liberty Protections Safeguards be on local authorities? Local Government Lawyer asked 50 adult social care lawyers for their views on the potential consequences.
SPOTLIGHT |
The test for capacity to consent to sex has changed. Bryan McGuire QC explains a recent High Court ruling.
In A Local Authority v TB Mostyn J has refined the approach of the courts to the question of what information a person must be able to understand if they are to be able to consent to sexual relations.
In so doing he has revisited his own decision in D Borough Council v AB [2011] EWCOP 101, commenting: “Although I am not going so far as figuratively to hold my hand in the flames like Cranmer I have had cause to reconsider my previous opinion”.
Facts
The evidence showed that P has barely an inkling of the health risks involved. She was unable to link sex to pregnancy. Indeed she had virtually no idea how her babies came to be in her tummy (as she put it). Although she found sex enjoyable and comfortable she had no idea that she had a choice and could refuse. Indeed the attitude of her husband, based on his culture and religion, was that he had a right to seek sex from her and that it was her duty to submit.
Judgment
The learned Judge also provided, at paragraphs 47 onwards, further explanation of, and a defence of, the line taken in his recent case of Rochdale Metropolitan Borough Council v KW in which he found that P, who was all-but housebound and incapacitated, was not deprived of her liberty in any meaningful sense.
Comment
These are welcome changes. It would be wrong to say that someone had the capacity to consent to sex if they did not understand the information that they could withhold or withdraw consent. It is also desirable that the civil and criminal law on capacity and consent should be closely aligned. Likewise it would be troubling if the effect of having a coil fitted (something which P did not have the capacity to consent to) was to remove any need to understand the link between sex and pregnancy.
Bryan McGuire QC is a barrister at Cornerstone Barristers. He appeared for the local authority.