Laura Mannering examines a case that carefully balanced autonomy with safeguarding for vulnerable people who lack capacity to make particular decisions.

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Balacncing Autonomy and Risk of Harm in Court of Protection Proceedings

A tension that often arises when representing vulnerable individuals in Court of Protection proceedings is the need to balance their autonomy and give effect to their wishes and feelings while also ensuring that any decisions taken do not put them at too great a risk of harm. This can be particularly acute when dealing with relationships between individuals.

Mental Capacity Act (MCA) 2005 s1(4) recognises that individuals may make decisions that appear to others to be unwise and that this is not determinative of whether someone lacks capacity to make their own decisions. This reflects the fact that, across the spectrum of human experience, there is not one uniform set of values and beliefs that dictate decision-making around significant life decisions, nor is there unilateral agreement as to the restrictions and infringements on autonomy any one individual would be prepared to tolerate to keep themselves safe.

The Case of A Local Authority X v MM and Another (No 1)

A local authority X v MM and another (No 1) [2007] EWHC 2003 (Fam) was a case under the inherent jurisdiction in relation to vulnerable adults in which Munby J (as he then was) dealt sensitively and carefully with the balancing exercise of promoting autonomy while safeguarding those who are vulnerable and lack mental capacity to make specific decisions.

The issues in this case, and the approach of the court, can be readily applied, and indeed have been, to cases before the Court of Protection under the MCA 2005.

In MM, Munby J was concerned with a woman in her late 30s who had paranoid schizophrenia. She had limited insight into the nature of her illness. MM also had a moderate learning disability and poor cognitive functioning.

Safeguarding Concerns and Court Proceedings

At the time of the decision, MM had been in a relationship with KM for around 15 years, having met him while living in a homeless persons’ hostel. KM had been diagnosed with a psychopathic personality disorder and alcohol misuse. He was abusive towards professionals and had exposed MM to a nomadic and unstable life. He had also been violent towards MM and had encouraged her to disengage from psychiatric services, which had resulted in a deterioration in her mental health.

Proceedings were issued as a result of concerns that KM intended to remove MM from her supported accommodation to another part of the country. This followed a number of episodes of KM encouraging MM to leave her accommodation, sleeping rough and not taking medication for extended periods of time.

“Just as wise parents resist the temptation to keep their children metaphorically wrapped up in cotton wool, so too we must avoid the temptation always to put the physical health and safety of the elderly and the vulnerable before everything else” – Munby J

The court concluded that MM lacked capacity to litigate and to decide where and with whom she should live, and with whom she should have contact. The judge found that she had capacity to consent to sexual relations.

Protecting Vulnerable Adults While Respecting Their Rights

The court approved a care plan, which provided that MM should reside in specialist accommodation. To safeguard the sustainability of that placement, her contact with KM was to be restricted and take place away from the placement. The result of this decision was that unless the local authority took positive steps to facilitate a venue for contact where MM and KM could have a sexual relationship, MM would be prevented from having sex despite having been found to have capacity to do so.

Although he acknowledged that there was a real possibility of MM being the victim of further abuse, given the history of the relationship, Munby J also recognised that the court must be careful that in protecting a vulnerable adult from one type of abuse, it did not inadvertently expose them to treatment at the hands of the state that was abusive of their dignity, happiness and human rights. He noted: ‘[J]ust as wise parents resist the temptation to keep their children metaphorically wrapped up in cotton wool, so too we must avoid the temptation always to put the physical health and safety of the elderly and the vulnerable before everything else’ (para 120).

As Munby J was keen to emphasise, risk appraisal must be sensible. The aim should not be to avoid all risk, regardless of the price, but rather there should be a proper balance and a willingness to tolerate manageable or acceptable risks as the acceptable price to achieve some other good, in particular the elderly or vulnerable person’s happiness.

“What good is it making someone safer if it merely makes them miserable?” – Munby J

It is a case well worth revisiting, and a principle that should guide practitioners when engaged in discussions around care planning and best interests decision-making for vulnerable individuals who lack mental capacity. As Munby J wisely said (at para 120): ‘What good is it making someone safer if it merely makes them miserable?’.

Credit: The above is taken from the original article published on the Legal Action Group website and in the Legal Action magazine with kind agreement to replicate on the Edwards Duthie Shamash website.

Court of Protection Solicitors

At Edwards Duthie Shamash Solicitors, we understand that making decisions about the care and finances of a loved one who lacks mental capacity can be overwhelming. Our experienced Court of Protection solicitors provide clear, practical advice and compassionate support to help you navigate what can often be a complex legal process.

Whether you need to apply to become a deputy, resolve a dispute concerning capacity or decision-making, or require guidance on managing someone’s financial affairs, we are here to help.

Why Choose Edwards Duthie Shamash Solicitors?

Our specialist Court of Protection team has extensive experience advising individuals, families, deputies, and professionals on a wide range of Court of Protection matters. We understand the sensitive nature of these cases and are committed to achieving the best possible outcome while protecting the interests of those who lack capacity.

Our Court of Protection solicitors can assist with:

• Applications to the Court of Protection
• Deputyship applications for property and financial affairs
• Health and welfare applications
• Statutory wills and gifting applications
• Advice for attorneys and deputies
• Resolving disputes relating to mental capacity and decision-making
• Ongoing deputyship administration and compliance

We provide straightforward legal advice tailored to your individual circumstances, ensuring that every decision is made in the best interests of the person who lacks capacity.

Speak to Our Court of Protection Solicitors Today

Court of Protection matters often involve important decisions affecting a person’s finances, property, healthcare, and overall wellbeing. Obtaining specialist legal advice at an early stage can help ensure the correct procedures are followed and unnecessary delays or disputes are avoided.

At Edwards Duthie Shamash Solicitors, our experienced Court of Protection solicitors will guide you through every stage of the process with sensitivity, professionalism, and practical advice. Whether you are making an application to the Court of Protection, acting as an attorney or deputy, or seeking advice about the management of a loved one’s affairs, we are here to support you.

Contact Edwards Duthie Shamash Solicitors on 020 8514 9035 or complete our online enquiry form and a member of our team will be pleased to discuss how we can help.

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