Southwark LBC v KA (Capacity to Marry)  EWHC 661 (Fam) (CoP): the Council applied for declarations that KA, 29 year old learning disabled man, lacked capacity to make decisions as to litigation, personal care and welfare, sexual relations, and marriage. The Council had urgently sought and obtained Forced Marriage Protection Orders after psychiatric and social work assessments recorded that KA's family was endeavouring to find a wife for him who would care for KA as would any children once KA's parents became too old. At that time KA appeared to have limited if any understanding of sexual activity or the meaning of marriage. It was accepted that as a result of his functional disability KA lacked the capacity to conduct the proceedings or to instruct legal representatives direct. A consultant psychologist and behavioural analyst concluded that KA was concrete in his thinking and knew he was talking to her about marriage and children; she considered that KA would find it a significant deprivation if he could not marry and have sexual intercourse.
The court held that under s.1(2) of the Mental Capacity Act 2005, a person must be assumed to have capacity unless it was established that he lacked it. The tests for capacity in respect of sexual relations and marriage were not high or complex and the court must not set the test too high nor add to any further relevant information to the requirement for understanding as this was likely to involve unnecessary paternalism and a derogation from personal autonomy. The issue of marriage hung very much on KA's capacity to enter into sexual relations, and the two were interlinked. Regarding sexual relations, KA had the necessary degree of understanding – he would know what he was doing and that it was a sexual act. The issue of consent was not part of the 'information' test as to the nature of the act or its foreseeable consequences but went to the root of capacity itself. The court found that KA both understood and retained the understanding of the necessity for consent of both himself and his partner/spouse. The decision was about capacity and not welfare so the judge would not take into account aspects of KA's decision making which affected the consequence of his decision making, so long as they did not affect the decision making process in itself. The presumption that KA had the capacity both to enter into sexual relations and to marry was not displaced. The judge was satisfied that KA had the capacity to understand and make decisions about his care needs, and he did not lack capacity in respect of medical treatment in general. The court made declarations that KA did not have the capacity to litigate for the purpose of these proceedings but otherwise he had capacity in the relevant domains. (23 March 2016)
Care Act 2014 (Commencement No. 5) Order 2016 (SI 2016/464 (C.25)): this Order brings a number of provisions of the 2014 Act into force on 6 April 2016. They include s.50 (provider failure: temporary duty on local authority in Wales) and s.75(8) - (11) and Part 2 of Sch.4 (after-care in Wales under the Mental Health Act 1983). (24 March 2016)
Social Services and Well-being (Wales) Act 2014 (Commencement No. 3, Savings and Transitional Provisions) Order 2016 (SI 2016/412 (W.130) (C.21)): the 2014 Act imposes duties on local authorities, health boards and Welsh Ministers that require them to work to promote the well-being of those who need care and support, or carers who need support. This Order brings the remaining provisions of the 2014 Act into force in Wales on 6 April 2016.
Welsh local authorities, when exercising their social services functions, must act in accordance with the requirements contained in the Codes of Practice. Local authorities and Local Health Boards must have regard to the statutory guidance in relation to partnership arrangements which are required under s.166 of the Act. (19 March 2016)
Social Services Code (Role of the Director of Social Services) (Appointed Day) (Wales) Order 2016 (SI 2016/414 (W.132)): this Order appoints 6 April 2016 as the day on which the Code of Practice on the role of the Director of Social Services (DSS) comes into force in Wales under the Social Services and Well-being (Wales) Act 2014. The Code includes requirements and guidelines in relation to the role of the DSS, as appointed by a Welsh local authority under s.144(1) of the 2014 Act. The Code also specifies the competences to be demonstrated by a DSS for the purposes of s.144(2) of the 2014 Act. Welsh local authorities must act in accordance with any relevant requirements contained in the Code and have regard to any relevant guidelines contained in it. (21 March 2016)