The Adult Social Care White Paper
The long awaited white paper on adult social care is due to be published in April. The Law Commission has recommended the most far reaching reforms of…
The long awaited white paper on adult social care is due to be published in April. The Law Commission has recommended the most far reaching reforms of adult social care law seen in over 60 years.
The Law Commission reviewed the law relating to adult social care publishing a scoping report in 2008 and undertaking a consultation from 24 February 2010 until 1 July 2010. The project culminated in the publication of its final recommendations in May 2011. The Law Commission believes “the recommendations will bring much needed clarity and accessibility to this key area of law, which touches the lives of so many citizens.” The overall aim of the project was to provide a clearer, modern and more cohesive framework for adult social care.
The Law Commission concluded that the current legislative framework for adult residential care, community care, adult protection and support for carers is inadequate, often incomprehensible and out dated. It has further been described as fragmented and flawed.
The current law stems from the National Assistance Act 1948 and has been added to on a piecemeal basis since then. The Law Commission has described it as a “patchwork of conflicting statutes enacted over a period of 60 years” and has suggested that the lack of cohesion leaves service users and providers struggling to make sense of ambiguous and inconsistent rights and duties.
The recommendations include over 40 statutes being repealed or amended and thousands of pages of contradictory guidance being removed. The Commission has recommended a single, clear, modern statute and a code of practice which includes:-
- Putting the individual's wellbeing at the heart of decision making, using new statutory principles
- Giving carers new legal rights to services
- Placing duties on Councils and the NHS to work together
- Building a single, streamlined assessment and eligibility framework
- Protecting service users from abuse and neglect with a new legal framework
- For the first time, giving adult safeguarding boards a statutory footing
It is hoped that local Councils will have clear and concise rules to govern when they must provide services.
The white paper will also set out the government’s intentions for the role of chief social worker, a new post due to be appointed to later this year that will represent the profession in government across adult and children’s services.
Paul Burstow, the Care Services Minister has said that social work will be at the heart of the forthcoming white paper and that “it will be an opportunity to restate some of the key elements of supporting people’s autonomy and upholding human rights.”
A Local Authority v H  EWHC 49 (COP)
Court of Protection, Hedley J
27 January 2012
The Court of Protection has again had to consider the correct test for capacity to consent to sexual relations.
The local authority made an application to the Court of Protection seeking best interest declarations relating to proposed care arrangements for H.
At the time of the final hearing in December 2011, H was 29 years of age and had a diagnosis of a mild learning disability and atypical autism, with a full scale IQ of 64. A referral was made to the local authority in 2009 expressing concerns about H’s sexual activities and vulnerability. H disclosed to the local authority a willingness to have sex with anyone who asked her, including strangers. She also referred to other sexual practices that raised concerns regarding her vulnerability.
H was admitted to hospital and later detained under section 3 of the Mental Health Act 1983. In readiness for H’s discharge from hospital the local authority and the PCT, in compliance with their duties under section 117 of the 1983 Act, made arrangements for H to be accommodated in a specialist care home. They also put in place arrangements so that H was supervised one to one during the day and had waking supervision at night. Contact with H was only to be had by previously approved persons and although H had the benefit of a well structured programme of activities, all her movements were restricted.
The arrangements amounted to a deprivation of H’s liberty and a standard authorisation had been granted under Schedule A1 of the Mental Capacity Act 2005. The main purpose of the restrictive arrangements were to prevent H from having sex and due to the considerable incursions into H’s personal autonomy and freedoms the local authority sought declarations that the arrangements were in H’s best interests.
It was agreed between the parties, H being represented by the Official Solicitor, that if H was found to lack capacity then the proposed arrangements were in her best interests. The Court found without difficulty that H lacked capacity to determine her residence, care and support arrangements, contact and deal with finances. However, the Court gave greater consideration to the correct test for capacity to consent to sexual relations.
The Court considered the previous cases of XCC v MB, NB & MAB  2 FLR 968, Local Authority X v MM  2009 1 FLR 443, R v C  1 WLR 1786, DCC v LS  Med LR 499 and DBC v AB 3 WLR 1257. The Honourable Mr Justice Hedley recognised that, save for Baroness Hale’s views in the case of R v C which are obiter; the other decisions were all first instance and accepted the parties’ view that the judgments were not capable of reconciliation.
Given the lack of clarity and the resulting “unsatisfactory state of affairs given the importance of the concept under consideration” Hedley J went on to consider the test for capacity to consent to sexual relations. In doing so he was at pains to point out that it was not his role to analyse the previous judgments and pronounce between them, but that he would consider the issue afresh.
In doing so he found that in order for a person to have capacity to consent to sexual relation they must have:
- A basic understanding of the mechanics of the physical act;
- An understanding that vaginal intercourse may lead to pregnancy; and
- A rudimentary understanding that sexual relations may lead to significant ill-health and that those risks can be reduced by precautions like use of a condom.
Hedley J then considered whether in addition the test for capacity should reflect the moral and emotional aspects of sex. He concluded that although the moral aspect is an important component in sexual relations it was not possible to formulate and articulate a workable test for capacity. In relation to the emotional component he concluded that there was a fourth element to the test for capacity:
- A requirement that the individual understands that they have a choice to have sex and can refuse.
He found that over and above this element, he could not import a further requirement to the emotional aspect.
The facts of this case give a good example of the difficulties that public bodies face in trying to balance personal freedoms against protecting the vulnerable. The difficulty is no starker when considering sexual freedoms. The test formulated by Hedley J is closest to those in the cases of XCC, Local Authority X and DBC, that is, capacity to consent to sexual relations is issue specific as opposed to person or situation specific. It also sets out an emotional aspect to the test and that the understanding needed in relation to possible health risks is ‘fairly rudimentary’. This recognises the need for a workable test that protects the vulnerable and is one that appears to be accepted by the Official Solicitor.
There remains “a legal fog” in relation to the question of capacity to enter into sexual relations. It is likely to remain until a case comes before the Court of Appeal, which as pointed out by Hedley J, may be some time as the outcome of cases such as this at first instance is usually one that is satisfactory to all the parties.
Weightmans LLP acted for the local authority.