Community Care law update

The decision of the High Court in Ealing LBC v KS & Others [2008] EWHC 636 (Fam) concerned care arrangements for a 34-year-old woman, K, who was vulnerable due to a combination of personal and family factors.

K had learning disabilities and a serious mental illness. In addition, she had a strong sex drive and so was particularly vulnerable to sexual exploitation. K’s family, a 75-year-old mother and three adult sisters, were dysfunctional. There was a history of family feuding in which K had been used as a pawn. This was illustrated by the number of allegations and counter-allegations made by family members against each other. These ranged from forcing K to marry to theft of her disability benefits and assault.

Ealing LBC, K’s local authority, thought that she should live in a specialist residential facility. Family care would, Ealing argued, place K at too great a risk of sexual exploitation and emotional harm. The family disagreed. Ealing applied to the High Court for a declaration that it would be lawful for them to enforce their proposal for a residential placement.

The court granted Ealing its declaration. Ealing had demonstrated that public care would be of a better quality than family care, that intervention was necessary to protect K from abuse and that she did not have the mental capacity validly to decide for herself where to live. But the court did stress that arrangements must be put in place for contact between K and her family although, initially, this would be supervised.

Fluctuating capacity

The court also considered whether it had a general jurisdiction to control K’s sex life. It concluded that K had fluctuating capacity to consent to sexual relations. Ealing argued that the High Court, in the exercise of its general jurisdiction in relation to vulnerable adults, had the power to permit them to prevent K from having sex even during periods when she had the requisite mental capacity to give a valid consent to sex. The High Court rejected Ealing’s argument. It held that it would be “wholly disproportionate” to seek to prevent K from indulging in sexual activity at times when she did possess capacity. It should also be noted that the High Court doubted the correctness of that part of the joint British Medical Association/Law Society mental capacity guidance which deals with capacity to consent to sexual relations. The High Court in this case gave intensive scrutiny to Ealing’s future care proposals. This, of course, is quite right. But there must be concern as to whether more generally local authority adult services teams are adequately resourced to cope with litigation of this intensity. Here, the witness statements alone ran to 500 pages, there were eight lever arch files of associated documentation and four barristers appeared before the High Court.

Vulnerable adult protective litigation is a relatively new legal area and so many teams will not have the budgets in place to run a case such as this. Difficult financial choices will arise and it is to be hoped that, overall, a means can be found of taking necessary protective legal action without having to cut frontline services. The solution may lie in the new Court of Protection established under the Mental Capacity Act 2005. Future cases of this sort are likely to be heard by that court whose specialism and relative informality may make vulnerable adult cases easier to manage.