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.

ANH, Sterilisation, IVF and Patient Confidentiality within English Medical Law

Academia

Medical Law
Image: ‘Sterile Processing’ by Khara Oxier

ANH, Sterilisation, IVF and Patient Confidentiality within English Medical Law

Executors, Gifts and Trustees within English Succession Law

Academia

Executors, Gifts and Trustees in Succession Law
Image: ‘Reading the Will’ by Frederick William Elwell

Executors, Gifts and Trustees in Succession Law

A Local Authority v E

English Medical Law

A Local Authority v E
Image: ‘Woman in Foetal Position’ by Unknown Artist

The struggle for autonomy amidst the pain of abuse, is central to a case involving the wishes of a patient with a debilitating illness, and the requisite obligations of the State. By balancing the safeguarding nature of the Mental Capacity Act 2005 with Convention rights, it is left to the courts to determine which argument offers the greatest reasoning.

After experiencing years of intense sexual abuse during the formative years of her childhood, the patient in question became prisoner to her manifestations of trauma, through increased dependency on alcohol and medically prescribed opiates. The prologue is one of repeated lapses of overall function, underpinned by contrasting highs of academic achievement that defied her emotional scars; but through time, the former overshadowed the applicants deliberate plans for happiness, in the form of chronic anorexia nervosa.

Following hospitalisation on numerous occasions through dangerously low body weight, and a number of therapeutic approaches proving collectively unsuccessful, it was decided by the applicant to submit advanced decisions surrounding life sustaining procedures, where her health suffered to the point of imminent death; only to then provide paradoxical statements portraying her deep conviction to regain a life of meaning that had once been enjoyed. This cyclical existence placed prolonged stress upon the applicant’s health, and that of her parents and appointed specialists, who had all extended themselves beyond any obligation to keep what was considered an engaging, and yet tormented, woman alive.

Several years of medical intervention provided little to no lasting results, and so it was largely accepted that after a year of no real calorific ingestion, the patient had made clear her decision to refuse food, and that in light of her last advanced decision, she wished to remain in palliative care until the date of her impending death. When her BMI (body mass index) then reached a potentially fatal level, it was with the concerns of those assigned her care, that the matter went before the Court of Protection, in the aim of determining if (i) the patient lacked mental capacity at the time her last advanced decision was made, and (ii) whether it was in her best interests to cease intervention, and leave her to die with dignity, or resort to long-term invasive nasogastric treatment to restore her BMI to that where therapeutic rehabilitation could again recommence.

Art.2 of the Human Rights Act 1998 (Right to life) determines that the State is under a duty to protect the individual right to life, and yet art.3 (Prohibition of torture) serves to prevent any inhuman or degrading treatment, which in this case, the proposed medical programme would, by all accounts, place unreasonably high levels of physical and emotional stress upon the patient; in part as the result of years of previous treatments producing a ravaged immune system with weakened bones mass. However, art.5 (Right to liberty and security) and art.8 (Right to respect for private and family life) both enforced the applicant’s right to die with dignity, in a manner that suited both herself and her family.

In light of her advanced decision, the contradiction of mental capacity while suffering from an eating disorder, allowed s.3(1) of the Mental Capacity Act 2005 to question if the cessation of ingestion can validate the supposition that a person can understand and evaluate, information as part of a decision making process, when they are consciously killing themselves, despite knowing the consequences of that action. For that reason, it was then argued that any suggestion that the advanced directive was undertaken while compos mentis, failed when an irrational request serves only to end a life and not preserve it.

With full appreciation of the medical evidence and lengthy testimony of all parties (aside from the patient whose heath was too critical for an appearance), it was concluded that in spite of the discouraging background to both the applicant’s childhood experiences and the endemic frustrations of anorexia, there remained a concept and hope, that at the age of thirty-two, it was not too late to rule out any meaningful recovery, nor the chance for the applicant to resume the full life she had once, if only briefly, created.

For those reasons, the court reasoned that the applicant lacked mental capacity upon the execution of her advanced decision, that subsequently forcible restitution was now in her best interests, and that such action failed to interfere with the rights presented, while further holding that:

“[W]here a person lacks capacity, there is a duty to make the decision that is in [their] best interests.”