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Capacity and sexual relations

In serious injury cases involving very severe traumatic brain injury, the question of whether an injured person has capacity to make decisions concerning sexual relations is very important, write Kirsty Stuart and David Withers of Irwin Mitchell.

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When looking at the question of capacity to consent to sexual relations, the Courts have historically held that the threshold is low, but a recent judgment of the Court of Appeal has expanded the test for capacity in relation to sexual relations, and has held that the relevant question is whether the person has the mental capacity to engage in sexual relations, rather than to consent to sexual relations.

Presumption of capacity

The question of capacity is issue and time specific. A person must be assumed to have capacity to make any decision unless it is established that he lacks capacity [Section 1 (2) of the Mental Capacity Act 2005].

Simply because the proposed decision is unwise, does not mean that the individual should be considered to lack capacity [Section 1 (5) of the Act].

An individual is deemed to lack capacity if they are unable to understand the information which is relevant to a particular decision, to retain that information, to use or weigh up that information as part of the process of making the decision or to communicate their decision by whatever means [Section 3 (1) of the Act].

The information relevant to a decision includes information about the reasonably foreseeable consequences of deciding one way or another or failing to make the decision [Section 3 (4) of the Act].

The relevant information for a decision is different for each question posed and so, for example, the relevant information in respect of capacity to decide who to have contact with is different from the information relevant to the issue of where to live.

In addition to The Mental Capacity Act 2005, practitioners are required to have regard to the Code of Practice (‘the Code’) when assessing capacity and making decisions on behalf of a person who lacks capacity. The Code is available on line at www.publicguardian.gov.uk

The Code refers to a two-stage capacity test comprising:

  1. Stage 1 (the “diagnostic test”): Does the person have an impairment of, or a disturbance in the functioning of, their mind or brain?
  1. Stage 2 (the “functional test”): Does the impairment or disturbance mean that the person is unable to make a specific decision when they need to?

The Code also emphasizes in respect of the stage 2 test that people must be given all practical and appropriate support to enable them to make a decision for themselves and that the stage 2 test is only satisfied if all such appropriate support has failed.

This could include the use of communication aids or support materials.

If the individual has capacity to make decisions about sexual relations, the rehabilitation team and the family, if appropriate, can educate and provide support and advice.

However, they cannot stop the person from making decisions that they are legally entitled to make.

This is despite the individual making what may seem unwise decisions, some of which could have severe consequences including, for example, a police investigation.

Those responsible or involved in the injured person’s care should consider education and encouragement without taking over the decision for the injured person.

The test

The law in this area has long been controversial and evolving.  A number of different judges have considered the issue and have often given contradictory judgments.

Emerging from this case law, however, was a consistent picture which held that the relevant question was whether the person had the mental capacity to consent to sexual relations, and that the relevant information which a person had to be able to understand, retain and weigh in order to make this decision was relatively simple.

As a result of this, the threshold for having capacity to consent to sexual relations has been relatively low.  However, a recent Court of Appeal judgment handed down in June 2020 has added a further element to the relevant information to be considered, and has re-framed the question from one of having capacity to consent to sexual relations to one of whether a person has capacity to decide to engage in sexual relations.

In the case of A local authority v JB [2020] EWCA Civ 735, the Court of Appeal decided that the relevant information in relation to deciding to engage in sexual relations is the following:

  1. The sexual nature and character of the act of sexual intercourse, including the mechanics of the act;
  2. The fact that the other person must have capacity to consent to the sexual activity and must in fact consent before and throughout the sexual activity;
  3. The fact that P can say yes or no to having sexual relations and is able to decide whether to give or withhold consent;
  4. That a reasonably foreseeable consequence of sexual intercourse between a  man and woman is that the woman will become pregnant;
  5. That there are health risks involved, particularly the acquisition of sexually transmitted and transmittable infections, and that the risk of sexually transmitted infections can be reduced by the taking or precautions such as the use of a condom.

The second and third elements of this test, those relating to consent, had not previously formed a consistent part of the test for capacity in this field, and as a result of this judgment, the threshold for capacity in this field can now be considered to be somewhat higher than before.

Lack of capacity

As indicated before, the question of capacity is time and issue specific. This means that it is possible for a person to lack capacity to make decisions in respect of one issue, but to have capacity to make decisions in relation to another, closely related issue.

This can lead to considerable practical difficulties for those supporting such an individual.

For example, a person might be found to have the capacity to engage in sexual relations (the threshold for having such capacity still being relatively low) but to lack the capacity to make decisions about who they should have contact.

This can lead to a situation in which, in practice, best interests decisions are being made around contact which restrict the person’s ability to exercise their autonomy in respect of engaging in sexual relations.

The courts have held that such cases should be considered extremely carefully and should be referred to the High Court to ensure that the correct balance is struck.

Case study

Given that the threshold for capacity to engage in sexual relations remains relatively low, in the vast majority of cases, persons with anything but the most severe brain injuries will be considered to have capacity to consent to sexual relations.

In one particular case which one of the authors was involved in, prior to the judgment in the case of JB, the injured person started inappropriately communicating with others on social media and arranging to meet them with a view to embarking upon sexual activity.

He did not appear to have much awareness about the importance of considering the age of consent. There were significant concerns that there would be police involvement.

He had, some would say naively, believed that everyone was who they said they were online.

The rehabilitation team tried hard to ensure that the injured person was educated about the risks and consequences of sexual activity and about the importance of not believing everyone is who they say they are.

When a relationship was formed, they tried to ensure that he took that at a steady and appropriate speed.

They agreed some guidelines. However, there were challenges keeping to them, particularly when he developed a relationship with an individual who did not perhaps have his best interests in mind.

He was assessed as having capacity to make decisions about who to contact and to enter into sexual relations, albeit the clinicians were of the view, rightly so, that this should be kept under review.

Fortunately, due to the extensive education provided to the injured person, he always (to the best of the rehabilitation team’s knowledge) practised safe sex.

The injured person was protected insofar as possible, and he made an informed decision about whether to engage in sexual relations as he had the capacity to do so.

In addition, he started to appreciate the risks associated with contacting individuals who did not have his best interests in mind.

Conclusion

If there is likely to be a dispute about whether there is a lack of capacity to make decisions about sexual relations, consideration should be given as to whether additional costs will arise which will need to be factored into the personal injury litigation.

The additional costs will be even higher in cases where a person has capacity in respect of sexual relations but lacks capacity in respect of their contact with others.

The additional costs may include additional legal advice and additional deputyship costs if applications to the Court to determine the issue are required.

In addition, there are likely to be additional costs incurred by the case manager and the rehabilitation team to protect the individual.

Kirsty Stuart is a solicitor Irwin Mitchell. David Withers is a partner at the firm.

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Legal

Proposed changes to our armed forces’ ability to secure justice

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In personal injury claims, there is a three year time limit (in the vast majority, but not all, cases) to start a claim, writes Irwin Mitchell’s David Withers.

If an injured person fails to start Court Proceedings within the three year period and there are no exceptions that apply, they run the risk of the Court finding that their claim has become “statute barred”.

In other words, the Defendant would have a complete defence, even if the breach of duty (fault) had been obvious.

Under the Limitation Act 1980, the Courts have the discretion to allow cases to proceed even if they are brought out of time.

This discretion is often used when injured people have not been able to issue Court Proceedings for a number of very valid reasons.

So, cases can proceed, even if they have been brought out of time, the Government is intending to change the law for our armed forces.

The Overseas Operations (Service Personnel and Veterans) Bill would apply a finite deadline of six years for claims for death or injury of a member of the armed forces.

There would be no ability to extend this arbitrary period of time, regardless of how exceptional the circumstances were.

This would place the Ministry of Defence in a much more advantageous position than any other Defendant in the country.

Part 1 of Schedule 2 states:“The court shall not under this section dis-apply any provision of section 11 in its application to an overseas armed forces action if the action was brought after the expiration of the period of six years from the section 11 relevant date”.

There are a plethora of examples when the Ministry of Defence’s negligence may result in significant psychiatric injury to armed forces personnel meaning that there may be an understandable delay in individual exercising their civil rights.

The Government has indicated that the Overseas Operations (Service Personnel and Veterans) Bill will be “providing greater legal protections to armed forces personnel and veterans serving on military operations overseas”; it is difficult to see how this is true.

As the proposed law stands to be, members of the Armed Forces and the Security Services, on the same operation, would have two different outcomes having been victims of the same negligent conduct.

David Withers  is a partner and solicitor-advocate at Irwin Mitchell LLP, leading a team specialising in neuro-trauma and other serious injuries such as amputations or significant poly-trauma.

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Legal

Bereavement damages – an overview

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The thorny issue of bereavement damages in fatal accident cases has recently raised its head again on one of my cases, writes associate solicitor Lauren Haas. Since so few of the families I encounter are aware of bereavement damages it may be useful to summarise the current law in this area and set out what the potential issues are.

What are bereavement damages?

Bereavement damages are a fixed sum of money which can be claimed on the unlawful death of a loved one.

They are separate from any financial dependency claim, which can of course also be brought.

Unlike a lot of other jurisdictions in Europe and the world, within the English jurisdiction we are very restrictive in our approach to bereavement damages.

Who can claim?

The current legal position allows you to claim the bereavement award if you are:

  • The spouse or civil partner of the deceased; or if no such eligible claimants exist, then
  • In cases involving the death of a child under 18, the parents if the child was “legitimate”, or the mother if the child was “illegitimate” ie mother and father were not married.

The question of who can actually claim this award has caused some controversy and outrage in recent years.

In 2017, a case in the Court of Appeal (Smith v Lancashire Teaching Hospitals NHS Foundation Trust) resulted in the Court of Appeal dragging the rather outmoded position on eligible claimants into a 21st century setting by ruling that cohabitants who have lived together for two years or more (for at least two years immediately prior to death) can claim for bereavement damages.

However – beware! As is the case for parents, where both an eligible cohabitant and spouse are eligible to claim bereavement damages then the award is divided equally between them.

Who cannot claim for bereavement damages?

Despite the fact that some cohabitants are now entitled to bereavement damages, the list of people entitled to a bereavement award remains very restricted.

The following individuals are not entitled to a bereavement award:

  • Cohabitants of less than 2 years
  • Parents of an adult child who is over the age of 18
  • The unmarried father of a child under the age of 18
  • Children who have lost a parent (regardless of the child’s age)
  • Siblings
  • Grandparents.

How much can be claimed for bereavement damages?

Following a consultation by the Government in reaction to the Smith v Lancashire case mentioned above, the award for bereavement in fatal accident claims was increased from £12,980 to £15,120 in March 2020 (after seven years of no increase at all).

The new award level applies to deaths on or after 1 May 2020.

However, the Ministry of Justice’s reiterated view is that bereavement damages are token in nature and have intentionally been limited in scope to a very restricted pool of individuals.

Commentary

“What price is a loved one’s life?” is probably one of the most emotive issues lawyers deal with in fatal accident cases.

The answer is of course that no money can ever compensate for the death of a beloved family member, but it adds to the hurt of families already dealing with a loved one’s death to find out what level of bereavement damages are actually set at and how restrictive in scope they are.

As a serious injury lawyer, it has been my experience that this restrictive approach can cause real heartache and anger at a time when families are in an exceptionally emotive state of mind anyway.

Careful and early management of the expectations of the families involved in fatal accident cases in respect of bereavement damages is therefore key.

A multitude of legal commentators have sought to emphasise the inequality and unfairness of the current legal position.

The Association of Personal Injury Lawyers (APIL) carried out consumer research in 2013, in which more than half of the 2,000 people surveyed thought bereavement damages should be more than £100,000, while three-quarters of people wanted the levels set on a case-by-case basis.

In addition, the current legal position does not reflect modern society’s view of and the proliferation of so-called “illegitimate” children ie children not born to a married couple.

It is a fact of life that (depending on the studies one consults) around 30-50% of babies are born out of wedlock.

That means a lot of fathers will fall outside of the scope of bereavement damage.

Children are prevented from claiming bereavement damages for parents in any case, which has caused many an expression of outrage when explaining the law to families.

As a comparison, in Spain or Greece you would likely be able to claim damages of around €80,000-100,000 for a bereavement which is caused by an unlawful act.

In Scotland, every case is looked at on its own merits and this has resulted in awards solely for bereavement damages reaching up to £140,000.

Unfortunately, a policy change by the Government is highly unlikely at the present time.

Lauren Haas is an associate solicitor specialising in serious injury and fatality cases at Irwin Mitchell. 

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Legal

Driverless vehicles and injury

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The Government has recently indicated that they are intending to consult on changing the law in the near future so as to allow level three automated vehicles on the road, writes David Withers of Irwin Mitchell.

There are six levels of automation:

Level 0: The driver performs all of the tasks associated with driving the vehicle;
Level 1: Some driving features are included but the driver controls the vehicle;
Level 2: The vehicle has automated functions but the driver must monitor the environment and be ready to take control at all times;
Level 3: The driver is a necessity but does not need to monitor the environment at all times;
Level 4: The vehicle can perform all driving functions under certain conditions;
Level 5: The vehicle can perform all driving functions under all conditions.

The proposed consultation is likely to see level 3 vehicles being allowed on the UK roads, in addition to levels 0, 1 and 2 vehicles.

The call for evidence will look at the Automated Lane Keeping System (“ALKS”) – an automated system that can take over control of the vehicle at low speeds, keeping it in lane on motorways.

Drivers may be able to “delegate” the task of driving the vehicle. ALKS can keep a vehicle within its lane and control its movement for extended periods of time.

However, at all times, the driver must be able and ready to resume control when promoted by the vehicle or in an emergency situation.

Transport Minister Rachel Maclean said: “Automated technology could make driving safer, smoother and easier for motorists and the UK should be the first country to see these benefits, attracting manufacturers to develop and test new technologies.

“The UK’s work in this area is world leading and the results from this call for evidence could be a significant step forward for this exciting technology. Following the approval of ALKS Regulation in June 2020 by the United Nations Economic Commission for Europe (UNECE) – of which the UK is a member – the technology is likely to be available in cars entering the UK market from Spring 2021.

“The government is acting now to ensure that regulation is ready where necessary for its introduction”.

The Government’s call for evidence will ask whether vehicles using this technology should be legally defined as an automated vehicle, which would mean the technology provider would be responsible for the safety of the vehicle when the system is engaged, rather than the driver.

Under the Consumer Protection Act 1987, a manufacturer is strictly liable for any damage caused “wholly or partly” by a defect in a product.

In addition, the manufacturer may be liable for a breach of contract and / or negligence, albeit the breach would have to be proven, as a breach of contract and negligence do not (in usual circumstances) attract strict liability.

Under the Automated and Electric Vehicles Act 2018, if damage is caused by an automated vehicle when driving itself, the insurer would be liable for the damage.

There is currently uncertainty due to a gap in the legislation whether an insurer or a manufacturer would be liable in circumstances when damage is caused partially by an automated system and partially due to driver error.

It may be the case that both the manufacturer and the driver could be held liable.

Personally, I think it is fantastic that the UK is keen to lead the way with automated vehicles. However, any further automation of vehicles must be carefully considered.

Automation can lead to complacency amongst drivers. If Level 3 automated vehicles are allowed on the roads, the driver does not need to monitor the environment at all times. The Government has suggested that level 3 vehicles may be allowed on motorways and other roads subjected to a 70 miles per hour speed limit.

Although there will of course be extensive testing, we know that products including those designed to automate the driving experience can and do fail.

I would urge the Government to ensure that we adopt an incremental approach to any automation of driving vehicles so as to discourage complacency and increase the risks that we face when driving on the roads.

In addition, I think provision should be made to ensure that the legal framework insofar as insurance and responsibility is clear.

David is a partner and solicitor-advocate at Irwin Mitchell LLP, leading a team specialising in neuro-trauma and other serious injuries such as amputations or significant poly-trauma.

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