Find the case of MM (an adult) Local Authority X v (1) MM (by her litigation friend, the Official Solicitor) (2) KM  EWHC 2003 (Fam). Analyse this case and then write a case review for the (fictitious) “Legal Issues Relating to Personal Injury” Journal. Your case review must identify the material facts of this case and the court’s decision. The case review must discuss the legal issues involved and the impact of the case.
The case of Local Authority X v (1) MM (by her litigation friend, the Official Solicitor) (2) KM is a family law case that has human rights issues. Significantly, it concisely summarises the law on capacity, looking at the relationship between the common law and statutory position. It also covers interference with the rights of vulnerable adults and ‘best interests’ issues, and confirms that authorities may have a positive duty to facilitate those rights in some circumstances.
The case concerned MM, a 39 year old adult woman who suffered from paranoid schizophrenia. As a result of her illness, and other problems including a moderate learning disability, she was illiterate, having an IQ of just 56 (anything below 70 is extremely low), poor cognitive functionality and impaired or non-existent verbal recall.
The issue before the Court was whether MM should have contact here with her long-term partner, KM. KM suffered from a psychopathic personality disorder and misused alcohol. He had a tendency to refuse support and was abusive towards professionals who offered it. This attitude was reflected in the fact that he discouraged MM from engaging with psychiatric support services from which she could greatly benefit.
The Local Authority sought a declaration from the Court that MM did not have the capacity to:
(a) conduct litigation on behalf of herself;
(b) make the decision about where and with whom she should live;
(c) decide who she can have contact or associate with;
(d) manage her own financial affairs; or
(e) enter into a contract of marriage.
The Local Authority also sought a declaration that MM should live in supported accommodation provided or approved by them, and should not be removed from that accommodation without their consent. Further, they wanted all contact with KM to be restricted to contact they had facilitated.
These requests give rise to two questions. The first was whether MM had, or lacked, capacity to make decisions about the various aspects of her life. The second was, if she did lack capacity, what should be done in her best interests.
To prove that MM lacked the relevant capacity, the Authority presented evidence in the form of reports from consultant psychiatrist Dr Milne and Social Work Consultant Dr Fowler, that MM lacked the capacity to litigate per the test in Masterman-Lister v Brutton & Co, to decide where to live and with whom per the test in Re MB, to decide with whom she should have contact per the test in Re MB, to marry per the test in Sheffield City Council v E, and to manage her finances. However, Dr Milne was satisfied that MM understood the nature of sexual intercourse and was capable of refusing it.
In terms of MM’s best interests, the evidence presented by the doctors suggested that the contact with KM was sometimes a positive, but often a negative experience and something that impacted her wellbeing. Both doctors recommended that it was not in MM’s best interests to reside with KM even though clearly this is what she wanted.
The question that arose, therefore, as presented by the Official Solicitor, was how far it was appropriate for the Court to interfere in terms of restricting and regulating MM’s relationships, given that the expert evidence had indicated she had the capacity to consent to sexual relations and wanted to continue her relationship with KM. Although she did not have the capacity to choose who she should associate with, restriction of her association with KM also limited her opportunities to have sexual relations, which she did have the capacity to consent to.
After reviewing the evidence in hand, Munby J turned to the issues of law. First, in relation to capacity, an adult is presumed to have capacity unless it is established to the contrary. Secondly, the capacity is ‘issue specific’. This means that sometimes a person may have capacity to do one thing but may lack capacity to do another. Further, the judgement highlights that capacity is “issue specific in relation to different transactions of the same type”. So a person may have the capacity to consent to a simple medical procedure, but not to consent to a more complex one. The more gravity attached to the decision to be made, the greater will be the capacity that is required to make it. Munby also sets out how ‘issue specific’ is not ‘person specific’. For example, considering whether MM has the capacity to marry does not mean whether she has the capacity to marry KM rather than someone else – it just means whether she has the capacity to marry generally.
Munby J sets out the relevant provisions of the Mental Capacity Act 2005, which determines when a person will not have the required capacity. This includes that they cannot understand, retain, use and weigh the information presented to them, or cannot communicate their decision. Per Section 16 of the same Act, where a person lacks the capacity, the Court of Protection may make decisions as to their welfare, including, per Section 17(1), where they can live, who they have contact with etc. The Act does not permit the Court to make decisions relating to the person’s consent to a marriage, civil partnership or sexual relations. Munby J confirmed that the provisions of the Act were consistent with existing common law tests as to capacity.
In terms of MM’s capacity, Munby J ruled that she had the capacity to consent to sexual relations but not to litigate, manage finances, decide where and with whom she would live, and whom she should have contact with, or to marry. So far as she lacked the capacity, the Court had to consider her best interests and noted that a wide range of “ethical, social, moral, emotional and welfare” factors needed to be considered. Per Thorpe J in Re A (Male Sterilisation), the Court must strike “a balance between the sum of the certain and possible gains against the sum of the certain and possible losses.”
In addition, it was important to consider MM’s rights and freedoms under the European Convention, the provisions of which are part of UK law under the Human Rights Act 1998. Article 8 of the Convention was of particular relevance to this case.
Article 8 provides:
“(1) Every one has the right to respect for his private and family life, his home and his correspondence.
(2) There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others”.
The term ‘private life’ used in this Article is a broad term covering the “physical and psychological integrity of a person”. It may cover their identity physically and socially, and their sexual life, amongst other things. Per Niemietz v Germany the term ‘private life’ includes two elements – the notion of an inner circle in which the individual lives their own personal life as they choose, and the right to establish and develop relationships with other human beings. This would include choosing with whom they do – and do not – want to establish, develop and continue a relationship with.
However, Article 8 must be qualified where a person is not a competent adult. The Court must decide how that adult, by reference to their best interests, exercises their freedoms under Article 8. In addition, it is suggested that the State may have a positive duty to intervene in order to ensure respect for the rights Article 8 affords individuals. Domestic law indicates that such interference will only be tolerated if it is (i) in accordance with the law; (ii) for a legitimate aim and (iii) necessary in a democratic society. The State should, therefore, only interfere in exceptional circumstances and should tolerate very diverse standards of living, being careful not to embark upon a ‘social engineering’ exercise. Munby J considered further cases and authority for minimising state intervention, highlighting that it is no good making someone safer if it merely makes them miserable, and MM’s wish to see KM ought therefore to be taken into account, even though she does not have capacity for many of the issues.
After considering all of the issues and evidence presented, Munby J’s decision supported the Local Authority’s proposal, with some minor changes which addressed the concern of the Official Solicitor. The original plan set out by the Authority proposed contact between MM and KM once a week for up to 4 hours, unsupervised. KM was required not to drink or verbally or physically threaten towards MM or staff. The Authority required a pre-agreed meeting point at which contact would commence and terminate, within the locality. KM was not permitted to attend MM’s placement and finally in relation to contact, the agreement was to be a trial, for review after six weeks. The Court determined that the plan was a “disproportionate interference with MM’s right to respect for her private and family life”, specifically because it denied her any opportunity to continue her sexual relationship with KM. The Plan placed to great a weight on protecting MM from various risks and far less weight on the emotional and other benefits that MM would receive from continuing a relationship with KM. The key issue was proportionately – and Munby J felt that only weekly contact, for longer periods, would be acceptable.
Further, Munby J found that Article 8 imposed a duty on the Local Authority to facilitate MM’s sexual contact with KM as a most fundamental and essential aspect of her private life. Because the Local Authority put MM in the facility and thus brought about the state of affairs whereby such sexual conduct was difficult, they brought the obligation upon themselves to facilitate it. Munby J therefore ordered the Local Authority to draw up plans in respect of MM’s future living arrangements, which had proper respect for her right to private life and to form relationships, including sexual ones. This is reiterated when the case is revisited in November 2007, and Munby J then recapped that he sought changes to the Local Authority’s plan so that they took positive steps to facilitate MM’s relationship, including her sexual relationship, with KM; the changes which had been made and consequently approved by him.
The case of MM and KM establishes a number of important principles. It draws together the law on capacity, helpfully setting out the relationship between common law and legislation, which compliments rather than conflicts. It also provides guidance for decisions relating to vulnerable adults, who wish to live independently and make their own decisions in relation to sexual and other relationships which on the one hand are potentially harmful, and on the other are emotionally fulfilling.
The case also impacts the practice of Healthcare Trusts and Primary Care Trusts, who provide or supervise the provision of care in a context that limits the user’s ability to form relationships as they are entitled to do under the European Convention, including sexual relationships. Not only will any limitations on a person’s freedoms be subject to severe scrutiny by the Courts but, in addition, the Trust may be under a positive duty to enable and facilitate such relationships to take place, where capacity to consent to sexual relations is not contested.
- Botta v Italy (1998) 26 EHRR 241
- Boughton v Knight (1873) LR 3 PD 64
- In the matter of MM (an adult) LOCAL AUTHORITY X and (1) MM by her
- litigation friend, the Official Solicitor) (2) KM Defendants  EWHC 2689 (Fam)  EWHC 2689 (Fam)
- Local Authority X v (1) MM (by her litigation friend, the Official Solicitor) (2) KM  EWHC 2003 (Fam)
- Masterman-Lister v Brutton & Co (No 1)  EWCA Civ 1889,  1 WLR 1511
- Niemietz v Germany (1993) 16 EHRR 97
- Pretty v United Kingdom (2003) 35 EHRR 1
- R (Limbuela) v Secretary of State for the Home Department  UKHL 66,  1 AC 396
- Re A (Male Sterilisation)  1 FLR 549
- Re Beaney (deceased)  1 WLR 770
- Re C and B (Care Order: Future Harm)  1 FLR 611
- Re KD (A Minor Ward) (Termination of Access)  1 AC 806,  2 FLR 139
- Re MB (Medical Treatment)  2 FLR 426
- Re T (Adult: Refusal of Treatment)  Fam 95
- Regina (Wilkinson) v Broadmoor Special Hospital Authority and others  EWCA Civ 1545,  1 WLR 419
- Sheffield City Council v E  EWHC 2808 (Fam),  Fam 326;  EWHC 2003 (Fam)
 Local Authority X v (1) MM (by her litigation friend, the Official Solicitor) (2) KM  EWHC 2003 (Fam)
  EWHC 2003 (Fam) Munby J at Para 2
  EWHC 2003 (Fam) Munby J at Para 4
  EWHC 2003 (Fam) Munby J at Para 20
  EWHC 2003 (Fam) Munby J at Paras 21-23
  EWHC 2003 (Fam) Munby J at Para 60
  EWHC 2003 (Fam) Munby J at Para 24
 Masterman-Lister v Brutton & Co (No 1)  EWCA Civ 1889,  1 WLR 1511
 Re MB (Medical Treatment)  2 FLR 426
 Sheffield City Council v E  EWHC 2808 (Fam),  Fam 326;  EWHC 2003 (Fam) cited in  EWHC 2003 (Fam) by Munby J at Para 28 – 29
  EWHC 2003 (Fam) Munby J at Para 25
  EWHC 2003 (Fam) Munby J at Para 28
 Munby J at Paras 32, 36, 52, 57-58
  EWHC 2003 (Fam) Munby J at Para 52, quoting Official Solicitor
  EWHC 2003 (Fam) Munby J at Para 63
  EWHC 2003 (Fam) Munby J at Para 64
  EWHC 2003 (Fam) Munby J at Para 65
 Lord Donaldson of Lymington MR in In re T (Adult: Refusal of Treatment)  Fam 95 at page 113, cited by  EWHC 2003 (Fam) Munby J at Para 65
  EWHC 2003 (Fam) Munby J at Para 86
 Section 3(1) Mental Capacity Act 2005
 Section 27(1)(a) and (b) Mental Capacity Act 2005;  EWHC 2003 (Fam) Munby J at Para 75
 In re Beaney (deceased)  1 WLR 770, Boughton v Knight (1873) LR 3 PD 64 , Masterman-Lister v Brutton & Co ibid and Sheffield City Council v E ibid;  EWHC 2003 (Fam) Munby J at Paras 79-80
  EWHC 2003 (Fam) Munby J at Para 98
  EWHC 2003 (Fam) Munby J at Para 99
 Thorpe LJ in Re A (Male Sterilisation)  1 FLR 549 at page 560, cited by  EWHC 2003 (Fam) Munby J at Para 99
 European Convention on Human Rights and Fundamental Freedoms 1950
 Pretty v United Kingdom (2003) 35 EHRR 1 at para  cited by  EWHC 2003 (Fam) Munby J at Para 102
 Niemietz v Germany (1993) 16 EHRR 97 at para  cited by  EWHC 2003 (Fam) Munby J at Para 103
 Botta v Italy (1998) 26 EHRR 241 cited by  EWHC 2003 (Fam) Munby J at Para 110
 Re C and B (Care Order: Future Harm)  1 FLR 611 at para  per Hale LJ, cited by  EWHC 2003 (Fam) Munby J at Para 112
 Re KD (A Minor Ward) (Termination of Access)  1 AC 806,  2 FLR 139 , at 51, cited in  EWHC 2003 (Fam) by Munby J at Paras 113-114
  EWHC 2003 (Fam) Munby J at Para 116
  EWHC 2003 (Fam) Munby J at Para 120
 Per Hale LJ in Regina (Wilkinson) v Broadmoor Special Hospital Authority and others  EWCA Civ 1545,  1 WLR 419, cited by  EWHC 2003 (Fam) Munby J at Para 123
 R (Limbuela) v Secretary of State for the Home Department  UKHL 66,  1 AC 396 (see especially at paras – , , ,  and , cited by  EWHC 2003 (Fam) Munby J at Para 163
  EWHC 2003 (Fam) Munby J at Para 167
 In the matter of MM (an adult) LOCAL AUTHORITY X and (1) MM by her litigation friend, the Official Solicitor) (2) KM Defendants  EWHC 2689 (Fam)
  EWHC 2689 (Fam) Paras 2-4
PLEASE NOTE: I wrote this essay a long time ago when I was studying and the law may be out of date. Please don’t rely on it without taking some time to check!