R v C (2009)

English Criminal Law

R v C
Image: ‘x_report#30’ by Kim Byungkwan

The right to choose to engage in sexual intercourse, or even a sexual act, relies upon the powers contained under the Sexual Offences Act 2003 as well as art.8 of the ECHR (Right to respect for private and family life). However, when disability fetters that discretion, the court is required to exercise greater consideration of exactly how such a vulnerability intervenes.

In summer of 2006, a 28 year-old woman suffering with schizo-affective disorder and an IQ of 75, found herself confronted by an aggressive man known to be suffering from metal health issues, and coerced into a situation whereby the defendant forced the victim to perform oral sex against her will.

Upon indictment, the defendant argued that while her illness caused fluctuating symptoms, she was at the time of the alleged offence, able to choose whether or not to engage in the act. When directing the jury, the judge remarked that in order to secure a conviction they must agree that the victim:

“[W]ould be unable to refuse if she lacked the capacity to choose whether to agree to the touching…for example, an irrational fear arising from her mental disorder or such confusion of mind arising from her mental disorder, that she felt that she was unable to refuse any request the defendants made for sex.

Alternatively, [she] would be unable to refuse if through her mental disorder she was unable to communicate such a choice to the defendants even though she was physically able to communicate with them.”

With the defendant duly convicted, he immediately appealed, during which the Court of Appeal both acknowledged and supported his original defence through Re MM, in which the court held that:

“Irrational fear that prevents the exercise of choice cannot be equated with lack of capacity to choose.”

However, when presented to the House of Lords under challenge by the Crown, close examination of s.2(1) of the Mental Capacity Act 2005 revealed that:

“[A] person lacks capacity in relation to a matter if at the material time he is unable to make a decision for himself in relation to the matter because of an impairment of, or disturbance in the functioning of, the mind or brain.”

While s.30(1)(c)(d) of the Sexual Offences Act 2003 states how a person is guilty of an offence if the victim is unable to refuse:

“(c)…because of or for a reason related to a mental disorder, and

(d) A knows or could reasonably be expected to know that B has a mental disorder and that because of it or for a reason related to it B is likely to be unable to refuse.”

This is further supported by s.30(2) which states that a sexual offence is recognised when:

“(2) B is unable to refuse if –

(a) he lacks the capacity to choose whether to agree to the touching (whether because he lacks sufficient understanding of the nature or reasonably foreseeable consequences of what is being done, or for any other reason), or

(b) he is unable to communicate such a choice to A.”

On this occasion, the House held that when placed into such a traumatic and hopeless situation, the victim had been unable to neither decide nor refuse the advances of the defendant, therefore there could be no doubt as to the soundness of the original conviction. It was for these reasons that the appeal was upheld, while the House reminded that had the victim been held to have capacity but been unable to communicate her refusal, the defendant would have been otherwise liable for statutory rape under ss.1 and 75(2)(e) of the 2003 Act.

R (Condliff) v North Staffordshire Primary Care Trust (2011)

English Medical Law

R (Condliff) v North Staffordshire Primary Care Trust
‘Daniel Lambert’ by Unknown Artist

Accusations of human rights violations and irrationality of policy, lay behind this failed judicial review hearing, after the denied care trust funding of laparoscopic gastric surgery upon a morbidly obese patient.

While often difficult to draw absolute clarity from NHS guidelines and framework policies, the matter dealt with on this occasion stemmed from a number of misapplications, breakdowns in communication, and unwillingness to pursue a claim through the accorded channels.

As may, or may not be common knowledge to many, it is operationally agreed that the associated Primary Care Trusts (PCT’s) of the United Kingdom are given the freedoms to set (within reason) their own thresholds and qualifying criteria for certain procedures, one of which includes preventative gastric surgeries to patients seen as most in need.

Unfortunately on this occasion, the patients BMI fell short of the required level, despite neighbouring counties demonstrating more lenient grading for the same treatment. Subsequently, when his application for an individual funding request was refused on grounds that his condition failed to meet the prescribed eligibility, the call for judicial review commenced.

Resting upon four reasons for review, the claimant cited (i) that the policy guidelines set by the issuing body were discriminatory in that they precluded social factors relevant to a claim for exclusivity,  (ii) that as a result of such prohibition, art.8 of the Human Rights Act 1998  (right to respect for private and family life) was in contravention, (iii) that the same breach impacted upon art.6 of the HRA (right to a fair trial), and (iv) that the conclusive argument against funding, lacked clarity enough to satisfy the patient and acting representatives.

Upon closer examination of the facts, it was agreed that while no interferences of human rights could be seen to exist in art.8, the resulting decision of art.6 would have remained the same regardless, while this position was supported by the observation that social factors were immaterial when deciding the award of funds, and that the prerequisite medical evidence for exception was balanced enough to remain within the two articles presented.

In closing, it was also found that the written opinion of the key adjudicating panel consultant was determinable enough to uphold their decision to reject the application, and that in light of those collective arguments, a judicial review could not stand, while the court held that:

“[P]rovided that it acts rationally, a PCT may set policies allocating medical resources and treatments even though the effect thereof is that some people will be denied treatment from which they would undoubtedly benefit.”