The London Borough of Tower Hamlets v TB & Anor (Rev 1)
2014
COURT OF PROTECTION
United Kingdom
CORAM
- MR JUSTICE MOSTYN
Areas of Law
- Family Law
- Human Rights Law
- Mental Health Law
2014
COURT OF PROTECTION
United Kingdom
CORAM
AI Generated Summary
The case concerns TB, a 41-year-old woman with moderate mental retardation, regarding her living arrangements and capacity for personal decisions. The court decided it is not in her best interests to live with her abusive husband SA and instead should be placed in supported accommodation. TB's capacity to consent to sex was assessed, concluding she lacks such capacity. The court also recognized that her care regime constitutes a deprivation of liberty under Article 5 ECHR, necessitating regular reviews.
Mr Justice Mostyn:
I am concerned with the future of TB, who is a 41-year-old lady of Bangladeshi origin born on 10 May 1973. All are agreed that this is a singularly complex and challenging case.
I gave a fairly full interim judgment in this case on 23 August 2012. In paras 2 and 3 of that judgment I stated:
"2. [TB] is incapacitated within the terms of s.2 of the Mental Capacity Act 2005. The opinion of Dr. Thomas in this regard has not been challenged. He states in his principal report of 17 April 2012 as follows (para.73):
“It is my opinion that TB suffers from a moderate mental retardation, almost certainly genetic in aetiology. Mental retardation is better known in the United Kingdom as ‘learning disability’ or ‘intellectual disability’ and this describes a permanent condition affecting the brain/mind arising in childhood and resulting in an impaired ability to learn or acquire new or complex skills, accompanied by a significant impairment of adaptive functioning in some or all of the following domains: communication, self-care, home living, social interpersonal skills, self-direction, functional academic skills, work, leisure, health and safety. A Moderate Learning Disability is a significant and permanent impairment of the functioning of his mind. This is a mental disorder that satisfies the requirement of the first stage of the two-stage capacity test as set out in the Mental Capacity Act. An adult with a moderate learning disability would possess a range of cognitive skills and abilities typically found in a child between the age of 4 to 8 years. A learning disability is a lifelong condition for which there is no known cure, although the impact of cognitive impairment may be significantly lessened with specific therapeutic intervention and support so as to improve adaptive functioning.”
3. Dr. Thomas then went on to consider the specific capacity of TB in certain fields or realms. He concluded as follows:
'(1) I do not consider TB to have the capacity to make decisions about her residence.
(2) TB currently lacks the capacity to make a decision about the nature and frequency of her contact with SA and also whether or not to remain living with SA, move away from the marital home herself or require him to move away. I believe that TB is not likely to acquire the capacity to make these decisions in the short to medium term.
(3) TB does not have the capacity to understand the nature, implications and consequences of a divorce from SA and, a