Man with learning disabilities secures damages after Local Authority fail to comply with principles of Mental Capacity Act
A 38 year old man with learning disabilities has been awarded damages of £10,000 after a council failed to provide him with sex education.
CH and his wife sought fertility treatment in 2014. The hospital raised a safeguarding alert to the local authority, and a subsequent capacity assessment concluded that CH lacked capacity to consent to sex. The local authority then informed CH’s wife that she must not engage in any sexual relations with him. In order to comply with these requirements and in fear of committing an offence she moved out of the bedroom they shared.
The basis of the claim for damages was that the clinical psychologist who carried out the capacity assessment gave a clear recommendation that he should be provided with a programme of sex education work to assist his understanding and then his capacity should be assessed again.
The local authority failed to source this educational work “for reasons that have never satisfactorily been explained.” A family member sought legal advice on his behalf and it was only after proceedings were issued in the Court of Protection that the educational work was carried out.
CH’s capacity was assessed again following the educational work and he was deemed to have capacity. However, the delay caused by the failure of the local authority meant CH and his wife were forced to sleep in separate bedrooms for a 15 month period.
Sir Mark Hedley was asked to approve the settlement of £10,000 on CH’s behalf. In a judgment handed down in the summer of 2017, he determined that the figure was in CH’s best interests and reflected “a fair outcome to these proceedings.”
One important factor he considered was that his wife “pursued her own claim under the HRA 1998 in respect of these matters and that claim has been settled but on terms that are confidential to those parties.”
Helen Dandridge, solicitor in the Court of Protection team at Ridley & Hall represented CH’s wife in the court proceedings and the subsequent settlement of her claim under the Human Rights Act. She comments:
“This case demonstrates the fundamental importance of understanding and complying with the principles of the Mental Capacity Act. The recommendation of the psychologist was clear in terms of providing him with educational work. The damages paid by the local authority can never erase the suffering this family were put under during this time.”
Simon Burrows & Francesca P. Gardner, Barristers at Kings Chambers also represented CH’s wife and said the following:
“This settlement is really significant because it gives recognition to the second and otherwise forgotten victim in this case”
The full judgment can be found here http://www.bailii.org/ew/cases/EWCOP/2017/12.html
If you have a similar matter and require legal advice and help, please contact our Contentious Probate & Court of Protection solicitor Helen Dandridge.