Scottish Sheriff Court Decisions

2014SCLIV21

 

                                                                                                                                                              AW9/13

SHERIFFDOM OF LOTHIAN AND BORDERS AT LIVINGSTON
	JUDGEMENT   of   DOUGLAS A KINLOCH, Advocate SHERIFF OF LOTHIAN AND BORDERS   in causa   WEST LOTHIAN COUNCIL, A LOCAL AUTHORITY INCORPORATED UNDER THE LOCAL GOVERNMENT ETC (SCOTLAND) ACT 1994 and having its headquarters at West Lothian Civic Centre, Howden South Road, Livingston, West Lothian Pursuers;   In respect of   LY,   The Adult   ________________

 

Livingston                                           May 2014

 

The Sheriff, having resumed consideration of the cause, answers question (i) as posed in the application in the negative and question (ii) in the affirmative; thereafter appoints a hearing in the cause, on a date to be afterwards fixed, to determine further procedure.

 

 

 

 

NOTE:
[1]        In September 2009 West Lothian Council (“the Council”) presented an application under the Adults with Incapacity (Scotland) Act 2000 to have their Chief Social Work Officer appointed as guardian to LY (“the adult”) in which they sought various “welfare” powers.   

[2]        The circumstances which brought about the application were that the adult in respect of whom the application was submitted has certain learning difficulties.  In about 2005 concerns arose about her relationship with an older male by whom she has two children.  Matters came to a head in about July or August 2009 when reports were received alleging violence by this male to the adult together with an allegation that she was being forced into prostitution.  In September 2009 an allegation was made that the adult had been the victim of an attempted rape, and after that incident emergency procedures were put in place, as a result of which the adult was accommodated in a semi-secure unit in West Lothian, which is run by the Council.  The Council then applied to Livingston Sheriff Court for the guardianship order mentioned above.  The adult opposed the application and instructed a solicitor and a five day proof was fixed, to take place before me in February 2010.  The proof did not proceed as agreement was reached whereby the adult would live with her mother and would receive input from the Council’s Psychological Service.  Notwithstanding that agreement, as I was satisfied on all the information put before me that the adult was incapable in relation to decisions about her personal welfare, and that the powers which the chief social work officer sought represented the least restrictive intervention in the adult’s affairs, I granted the application for a period of one year by interlocutor dated 15 February 2010.  The order was subsequently renewed on 7 April 2011 for a further year, and renewed again on 18 July 2012 for a third year. 

[3]        In July 2013 West Lothian Council applied to the court for a further renewal of the Guardianship Order for a fourth year.  The adult instructed solicitors but as the case progressed they withdrew from acting.  As there had previously been similar difficulties in relation to solicitors whom the adult had instructed, I appointed a curator ad litem to the adult.  He carried out diligent and full investigation into the circumstances of the order sought by the Council, and ultimately, did not contest the Council’s application for renewal of the guardianship order.  By interlocutor dated 14 March 2014 I therefore renewed the appointment of the Chief Social Work Officer of West Lothian Council as welfare guardian for a period of two years with certain welfare powers.  In particular, I granted the Council power to “decide where LY should reside”, the power to “decide with whom LY has contact and to supervise any such contact”, and, more generally, the power to “decide the appropriate level of care for LY in respect of health and social issues restricted to promotion of the development of her personal resources and insight in respect of her lack of capacity in the area of sexual relationships and informed consent relative thereto.”  Those powers were granted, in part, on the basis that I was satisfied on evidence in the form of medical reports which were put before me that the adult was incapable of giving informed consent to having sexual relations. 

Application for directions

[4]        In February 2013 (prior to the most recent application for renewal of the guardianship order) the Council submitted a separate Summary Application for directions in terms of Section 3 (3) of the Adults with Incapacity (Scotland) Act 2000 as to the exercise of the powers granted to their Chief Social Worker in terms of the guardianship order.  Section 3 provides as follows: 

“On an application by any person … claiming an interest in the … personal welfare of an adult, the sheriff may give such directions … as to the exercise of those functions and the taking of decisions or action in relation to the adult as appear to him to be appropriate.” 

[5]        The application for directions contained, in the Statement of Facts, a comprehensive narration of the circumstances relating to the adult since the original guardianship order was granted, and which led to the application for directions. It is said as follows (with the adult’s name being changed to initials):-

 

“12.     LY and her family have on-going support from a clinical psychologist from the Learning Disability Team.  She has encouraged LY to work through her anger and develop feelings of self-worth.  Through careful planning and set protocols she was allowed to experience more independence with self-travel, shopping and socialising with friends.

 

13.       In December 2011 it was recorded that, while attending the West Lothian Council Community Inclusion Team, she had met a new boyfriend.  He was a known service user and was not seen in any way to be an actual or perceived threat to her.

 

14.       LY’s relationship with her new boyfriend became the focus of much discussion within the multi-agency group addressing her protection.  It was agreed that this relationship was seen as a positive step in her life.  Due, however, to her being assessed as not having capacity to consent to sexual relations, both she, her boyfriend and their respective families were advised that if she had a sexual relationship with her boyfriend that he could be charged with statutory rape in terms of the Sexual Offences (Scotland) Act 2009.

 

15.       On 29^th March 2012 LY’s General Practitioner confirmed that she was pregnant.  The father of her child was identified as her current boyfriend.  West Lothian Council reported this to the Police given the implications in terms of the Sexual Offences (Scotland) Act 2009.  The Crown Office subsequently decided that it would not be in the public interest to prosecute her current boyfriend.

 

16.       LY gave birth to a baby boy on 22 November 2012.  Over the months leading up to the birth her current boyfriend supported her through her pregnancy and attended all clinic appointments.  Prior to the birth and following full Child Protection Assessments it was decided that her then unborn child would become subject to Child Protections Procedures.  The child is now in the temporary care of her current boyfriend’s mother.

 

[6]        The above circumstances are said in the averments to give the Council “a dilemma in respect of exercise of the power to restrict contact”.  That dilemma is set out in Statement of Fact 18 as follows:-

 

“18. Given that LY has no capacity to consent to sexual relations any reports made by her or others to West Lothian Council confirming that she has had intercourse has a consequence that she has been subjected to statutory rape in terms of the Sexual Offences (Scotland) Act 2009.  Accordingly were the letter of the law to be strictly followed the Chief Social Work Officer cannot allow LY to have any private time with her current boyfriend as there is a strong possibility that they may have sexual relations”.

 

Proof

[7]        After sundry procedure, the application for directions called for proof before me on 14 March and 24 March 2014.  The Council was represented by Mr MacEachern, Solicitor.  The curator ad litem, David Johnstone, Solicitor, was present, as was the adult, who was accompanied by an advocacy worker.  I heard evidence from two witnesses who were led on behalf of the council, namely Dr Carolyn Greenwood, a consultant psychiatrist, and Mrs Ann Barton, a social worker in the field of “adult learning”.  The evidence of these two witnesses emphasised and made clear the dilemma faced by the Council’s social work department, and the reason why the application for directions has been brought.

[8]        That evidence was to the effect that the view of Dr Greenwood, and her colleagues, is that the adult does not have the capacity to consent to sexual relations.  At the time that the initial guardianship order was granted the adult was being taken advantage of and sexually exploited.  She was becoming involved in prostitution, and the sexual exploitation to which she was subject was having a huge effect on her self-esteem.   It is the view of everyone involved with the adult, that forcing her to live in the accommodation provided by the Council (which is the unfortunate effect at present of the guardianship order) is in her own best interests.  This has kept her away from those who were exploiting her.  The adult, however, has now entered into a new relationship with someone of similar age to her.  He has certain difficulties of his own, but I was told that he was a delightful young man, and that the relationship has been good for the adult.  I was told that it is a loving relationship, and that the relationship is improving the adult’s self-esteem.  The adult, however, wishes to enter into a sexual relationship with her new boyfriend, and indeed it appears that sexual relations have already taken place.  At one time the adult indicated that she did not wish to use contraception, but her position has changed, and she is now willing to do so. 

[9]        In her evidence Mrs Barton told me of the extremely difficult position in which she and her colleagues found themselves.  While they support the relationship which the adult has with her boyfriend, they have been advised that because the adult lacks capacity to consent to sexual relations, her boyfriend may be committing the crime of rape if sexual intercourse takes place.  They have had to advise both the adult and her boyfriend of this, and indeed on becoming aware that sexual intercourse had taken place they felt that they were under a duty to advise the Procurator Fiscal.  I was told that the Procurator Fiscal has indicated that he does not consider at present that it is in the public interest to prosecute the adult’s boyfriend, and so far as Mrs Barton and her colleagues are aware that position is likely to remain the same as long as the adult is not being exploited.  Mrs Barton and her colleagues, however, also have a fear for their own positions should they actively support sexual relations between the parties. 

[10]      At the proof I also had sight of a form completed by the adult with the assistance of an advocacy worker.  In it she says as follows:

“I am pleased that the Sheriff is looking at whether I should be able to have ‘safe’ sexual relationships.  I am 27 years old and I should be able to have a sexual relationship especially with [A].  I love him.  I never knew what love was until I met him.  He is very kind, loving and caring.  I have had bad sexual relationships in the past.  I am moving on now and I am looking to the future.”

 

Directions sought

[11]      It appears that in seeking to deal with their dilemma, the Council has obtained guidance from a document called “The Guidance on Consenting Adults” produced by the Mental Welfare Commission for Scotland.  In Statement of Fact 19 the Council quote from that document as follows:

 

“The benefits of being in a relationship in terms of self-esteem, self-confidence, fulfilment, happiness and perceived social acceptance must be weighed against possible financial, physical or sexual exploitation, once all means of minimising those risks have been taken.  Any intervention must consider the proportionality of the response to the risks in light of the risks/benefits assessment.  It is hard to be prescriptive on the balance between rights and protection in cases where someone in engaging in sexual behaviour which is perceived by staff as being potentially damaging, but is actively sought by the service user.”

 

[12]      That very full guidance only contains, perhaps surprisingly, a very short section on the effect of the Sexual Offences, (Scotland) Act 2009.  It is said there, at page 7, as follows:-

 

“The Sexual Offences (Scotland) Act 2009 creates a number of statutory offences, previously common law offences, such as rape, sexual assault and sexual coercion … There were a number of statutory sexual offences specifically relating to mentally disordered persons in the 2003 Act (s311-313), which have been repealed and replaced by the Sexual Offences (Scotland) Act 2009 (s17 and s46).  We are aware of very few prosecutions under these provisions.”

 

[13]      As I understood it, the present action was brought with the encouragement of the Mental Welfare Commission for Scotland.  It might have been helpful if they had sought to give me submissions on the issues raised in the application, by means of seeking to become an “intervener” in the proceedings.  However they did not do so.  That should be borne in mind in relation to the views expressed in this judgment.

 

Questions asked

[14]      The language of the guidance document produced by the Mental Welfare Commission is reflected in the craves of the present application where the following questions are asked:-

 

“(i) does the Sheriff consider that the Chief Social Work Officer allowing LY to continue her sexual relationship with her new boyfriend is a proportionate balance of her rights against the risks posed to her and particularly given that her relationship with her new boyfriend is positive and non-abusive.

 

(ii) does the Sheriff consider that the same consideration should apply where the Chief Social Work Officer has assessed that any future sexual relationship in which LY participates is mutual, non-exploitative and positive.”

 

 

Issues raised

[15]      This case is not about the question of whether the adult can consent to sexual relations, or about what informed consent truly means.  The meaning of consent raises difficult philosophical and legal issues with which, as I understand it, the English superior courts have grappled in a number of important decisions, e.g., Deeborough Council and AB, Court of Protection, 28 January 2011; YLA v PM and MZ, Court of Protection, 20 November 2013; and IM v Liverpool City Council, Court of Appeal, 23 January 2014.  The present application for directions proceeds on the basis that it is the view of the psychiatrists who have examined the adult that she is incapable of consenting to sexual relations.  It is on that basis that I granted and thereafter continued the guardianship order which confers on the Council guardianship powers allowing them to intervene in the adult’s life in relation to the area of sexual relationships.  Rather, the issue in this application, to put it in blunt terms, is whether the Council can allow the adult, as a person assessed as lacking the capacity to consent to sexual intercourse, to have sexual relations with her boyfriend, or with any other person. 

 

Answer to questions asked

[16]      The answer to the questions asked is given, in my view, by a consideration of the Sexual Offences (Scotland) Act 2009.  Section 1 of the Act, which came into force on 1 December 2010, provides as follows: 

“If a person (‘A’), with A’s penis –

(a)        without another person (‘B’) consenting, and

(b)        without any reasonable belief that B consents, penetrates to any extent … the vagina … of B then A commits an offence, to be known as the offence of rape.”  

[17]      On the assumption that the adult is incapable of consenting, and on the assumption that the crown could prove that any person with whom she had sexual relations knew of that fact, then as I understand it, in terms of section 1 of the 2009 Act, the crime of rape would be committed. 

 

[18]      It is clearly impossible for me to give any directions which in any way would condone the crime of rape.  It follows from this that it could never be said as a matter of law that for the Council to allow the adult to have a sexual relationship with her new boyfriend “is a proportionate balance of her rights against the risks posed to her”, or that it represents an appropriate “balancing” of issues.  As I understood it, the Agents involved in this case in fact shared the view that the terms of the 2009 Act and the inability of the adult to consent made that conclusion inevitable.  There was, moreover, no suggestion made to me that where a guardianship order is in place the Guardian could give consent to sexual relations on behalf of someone who is said to be unable to consent.

 

[19]      Not only that, but it is confirmed in The Criminal Law of Scotland, by Gerald Gordon, 3^rd Ed. at 5.15, that it is possible for someone to be convicted of aiding and abetting the crime of rape.  It is therefore also impossible for me to give directions which in any way could condone anything which might amount to the commission of the crime of aiding and abetting the crime of rape. 

[20]      In these circumstances it seems to me that the answer to the two questions asked (if I have understood them properly) can only be  “no” and “yes”, and I also think that the local authority has been correct to take the view that if they become aware that sexual relations are taking place then they have a duty to report that to the Procurator Fiscal.  The precise nature and source of that duty was not really explored before me, but I think it must undoubtedly exist. 

 

[21]      I am aware that the views I have expressed in relation to the questions I am asked may unfortunately have increased the dilemma faced by the Council.  The adult wishes to have a full and sexual relationship with her boyfriend.   It was suggested to me, I think with very considerable force, that if the view were taken that the Council actually had a positive duty to prevent the adult from having sexual relations (which I am told would be the position in England), then the only way of doing that would be to put her under lock and key, and to prevent her from having any unsupervised access to her boyfriend.  Such a course of action would, for instance, probably result in her being transferred out of West Lothian as there are no secure units in the area in which she could live, and all that this would entail would be very damaging to the adult.  I can, however, give no directions which in any way would ease the Council’s dilemma.

 

Other issues raised

[22]      The whole question of sexual relations by people with a mental handicap or disorder is an extremely difficult area.  The Scottish Law Commission in making their recommendations which led to the Sexual Offences (Scotland) Act 2009 recognised these difficulties. As they put it:

 

“… The challenge in making provision for sexual activity with people with mental disorder is to recognise the rights of those persons to engage in sexual activity and promote their sexual autonomy as far as possible.  This aim must be balanced with the need to protect vulnerable persons from sexual exploitation and to recognise that in certain situations mental disorder may act as a barrier to meaningful understanding of, and valid consent to, sexual activity.  The difficulties which this balancing involves have been widely recognised” (SLC Report on Rape and Other Sexual Offences, para 4.88)

 

[23]      It is important that I mention that the psychiatrists who provided their views as to capacity to consent have clearly given careful consideration to the matter, their reports being quite full and detailed (eg, Dr McDonald, 4 February 2011 and 22 March 2012; Dr Bett, 27 June 2012; Dr Greenwood, July 2013 and 20 November 2013).   Having said that, it always seemed a little surprising that the psychiatrists are of the opinion that the adult cannot consent to sexual intercourse but can consent to the use of contraception.  It is difficult, perhaps, to see that someone can consent to contraception without an understanding of what sexual relations means.   In any event, the view that the adult could not consent was not challenged in the guardianship proceedings. 

 

[24]      The question of whether the adult is capable of consenting to sexual relations is, ultimately, a legal question rather than a medical one.  The English courts, as mentioned above, have considered at a high level the whole question of what being capable of consenting to sexual relations means. These decisions are based on English legislation, and therefore must be treated with caution here.  For Scotland, the 2009 Act provides a very specific definition of capacity to consent for the purpose of sexual offences.  It is dealt with in s17 of the Act as follows:

 

“A mentally disordered person is incapable of consenting to conduct where, by reason of mental disorder, the person is unable to do one or more of the following-

1. understand what the conduct is,
2. form a decision as to whether to engage in the conduct (or as to whether the conduct should take place),
3. communicate any such decision.”

 

[25]      The difficult nature of the concept of having capacity to consent to sexual relations gives rise to the possibility, and I stress possibility, that a closer look at that question might produce a different answer to the unchallenged one on which the guardianship order proceeded.  For instance, in the English case mentioned above of IM, decided in the Court of Appeal, the court as I understand it disagreed with the view of a consultant psychiatrist that the person who was the subject of that case lacked the capacity to consent to sexual relations, and held that she could consent.

 

[26]      Having given the Council’s dilemma (as it has very properly described) some considerable thought, I would very respectfully suggest that consideration be given to revisiting the question of whether the adult is capable of consenting to sexual relations.  My feeling at present is that this would be better done, if it is to be done, in the guardianship process. Although the guardianship order was very recently renewed, section 74 of the Adults with Incapacity (Scotland) Act 2000 provides that “any person … claiming an interest in the … personal welfare of the adult” may apply to the court to vary the powers conferred by the guardianship order. This section, I would have thought, would allow the Council, as a person with an obvious interest, to seek to have the guardianship order varied. The procedural issues require some thought, but it seems to me that evidence would have to be led from the psychiatrists, and perhaps others, on the question of whether the adult is capable of consenting to allow the court to look anew at the guardianship orders which have been granted. The answer might be the same as at present, in which case the dilemma will unfortunately remain, but if the answer were to be a different one, then a way out of the dilemma might arise.

 

[27]      For these reasons although I have answered the questions posed, I have decided to put the case out for a hearing so that the possibility of further procedure can be considered.   I would wish the curator to attend the hearing so that I can have the benefit of the views of all parties.

 

 

 

 

 

Sheriff Douglas A Kinloch

 

 

 

 

 

 

ADDENDUM:

SHERIFFDOM OF LOTHIAN AND BORDERS AT LIVINGSTON
	INTERLOCUTOR AND NOTE   of   DOUGLAS A KINLOCH, Advocate SHERIFF OF LOTHIAN AND BORDERS   in causa   WEST LOTHIAN COUNCIL, A LOCAL AUTHORITY INCORPORATED UNDER THE LOCAL GOVERNMENT ETC (SCOTLAND) ACT 1994 and having its headquarters at West Lothian Civic Centre, Howden South Road, Livingston, West Lothian Pursuers;   In respect of LY, The Adult ________________

 

 

Livingston                 30 May 2014

 

The sheriff, having heard parties, makes no further order.  

 

 

 

NOTE:

The case called before me again on 30 May 2014, when the parties were represented as before.  At the hearing I was addressed on the question which had been raised by me in paragraph 26 of my Judgement as to whether any variation of the guardianship powers could be applied for by the Council. 

 

I think it is sufficient to say that the Council’s solicitor, Mr MacEachern, explained to me that careful consideration had been given to this question, but for various reasons the view was taken that it would not be appropriate to seek to reopen matters.  The Council were, however, looking to see if the adult could be given further support in the hope that she might gain capacity in the future.  The curator supported the position outlined on behalf of the Council, and confirmed that he did not consider that he would be in a position to challenge the views of the psychiatrists.  He had looked into matters in detail at the outset of the application, and it was his view that he would not be able to argue that the adult could consent. 

 

Further consideration of the question of the adult’s capacity to consent would, I think, be likely to achieve little in the absence of a contradictor, and in these circumstances, and in the absence of any application for further procedure of any sort, no further orders will be made.  

 

 

 

 

 

SHERIFFDOM OF LOTHIAN AND BORDERS AT LIVINGSTON
	INTERLOCUTOR AND NOTE   of   DOUGLAS A KINLOCH, Advocate SHERIFF OF LOTHIAN AND BORDERS   in causa   WEST LOTHIAN COUNCIL, A LOCAL AUTHORITY INCORPORATED UNDER THE LOCAL GOVERNMENT ETC (SCOTLAND) ACT 1994 and having its headquarters at West Lothian Civic Centre, Howden South Road, Livingston, West Lothian Pursuers;   In respect of   LY,   The Adult   ________________