Safeguarding and the Court of Protection

A recent Court of Protection case (A county council v LW and another) [2020] involved a 60 year old woman detained under the Mental Health Act 1983 in an emaciated condition and with extremely poor personal hygiene. The facility at which she was detained was not equipped for her needs and the Court needed to decide where she should live, her care plan and whether her former partner should be able to have contact with her.Before living in the facility, the woman had lived with her partner in her own home. The Official Solicitor characterised her partner's behaviour as 'controlling', 'abusive' and 'cruel'. Her partner had been aware of her striking deterioration and decline before she had been detained but apparently had done nothing to help her. The team around her, including a doctor, had a clear view that she would benefit from ceasing contact with her partner.In the case, the Court considered the woman's character and personality. Although there were many positive traits, it was clear that the woman would struggle to live independently and would benefit from ceasing contact with her partner.In this case, the Court considered examples of the woman's partner's controlling or coercive behaviour and the judgment provided a timely opportunity to highlight both the insidious nature of this behaviour and the extreme vulnerability of those lacking mental capacity when it comes to their decision making. In considering this type of behaviour, the Court referred to the statutory guidance published by the Home Office pursuant to Section 77(1) of the Serious Crimes Act 2015, which identified examples such as:

• Isolating a person from their friends and family;
• Depriving them of their basic needs;
• Taking control over aspects of their everyday life;
• Repeatedly putting them down, such as telling them they are worthless;
• Enforcing rules and activity which humiliated, degraded or dehumanised the victim;
• Financial abuse (including controlling their finances);
• Threats to hurt or kill;
• Threats to children;
• Threats to reveal or publish private information.

These are just a few examples but it is important to highlight them, especially to those working with vulnerable individuals. Far too frequently, we see this type of behaviour inflicted on vulnerable individuals. However there are provisions in place to help those individuals who are suffering at the hands of abuse and who lack capacity to make their own decisions.The Court stated that it would liaise with the woman's property and affairs deputy to evict the woman's partner from her home. Once her partner had been evicted, the Court stated that the parties could return to Court to submit a finalised care plan. Although the woman had expressed her wish to remain in contact with her partner, the Court was concerned that allowing her to return to her relationship would not be in her best interests. The Court stated that it would not lightly contravene the clear and constantly expressed wishes and feelings of an incapacitated person but that it had to consider what was in her best interests.Section 4 Mental Capacity Act 2005 outlines how the Court determines best interests. While the Court cannot consent to a person entering into a physical relationship with someone (section 27(b) Mental Capacity Act 2005) it can decide what contact, if any, an individual can have with specified people, prohibit a person from having contact with an individual and give a direction that a person responsible for care decisions allow a different person to take over that responsibility (section 17 of Mental Capacity Act 2005).A personal welfare application can be made in order to help remove vulnerable individuals from abusive partners, from living facility where they are not equipped to deal with that person's needs and from the medical care of someone who is not deemed to be carrying out their role to the satisfaction of the Court.At Freeths we have not only had great success in asking the Court to make welfare decisions for vulnerable adults but we have also made great strides in helping vulnerable adults who have capacity to make these decisions for themselves.We understand the sensitive nature of these types of cases and we work with discretion and compassion. It is our goal to help assist the families of vulnerable adults but to also help vulnerable adults live as independently as they can.If you have any questions regarding making a personal welfare application or any issues that have been raised in this article, please contact Louise Lewis or Ella Weaving. Alternatively, you can call the team on 01865 781 000.