Nottinghamshire County Council v LM & Anor

Summary

In this case HHJ Rogers has added to the growing jurisprudence on capacity to engage sex in the post JB era – specifically, where capacity is contingent on P’s ability to assess the consent of a prospective partner.

The application in this case was brought by the local authority – with support from the relevant healthcare trust – to determine LM’s capacity to engage in sexual relationship and to consent to the sharing of information in respect of sexual offences. The parties otherwise agreed that he lacked capacity in relation to litigation, care, residence, contact with others and internet and social media use.

LM was described as a middle-aged man who had been living in a residential placement for the past decade or so. He had an IQ of between 52 and 60 and experienced a troubled childhood. He had a brief occupational history punctuated by the misuse of alcohol and cannabis.

LM also had a 2009 conviction for the rape of a vulnerable man and a history of “intense” relationships with men and women, and an active online presence through which he has forms such relationships.

The Official Solicitor on LM’s part supported the conclusions reached by the consultant forensic psychiatrist instructed in the case, Dr Rebecca O’Donovan, namely that he retained capacity with regard to both engagement in sex and the sharing of his offending history. She emphasised the “profound, sensitive and far-reaching nature of the question in issue” and the significant potential invasion of personal autonomy in a “paternalistic or overly protective approach” (paragraph 13).

In his analysis of the relevant legal framework, HHJ Rogers reviewed the relevant principles from JB [2021] UKSC 52 and the  (unsuccessful) argument put forward on behalf of the Appellant in JB by John McKendrick KC (as he then was)  that “sexual activity, and decisions about engaging in sexual relations for a person of full capacity, are largely visceral rather than cerebral, owing more to instinct and emotion than to analysis. On this basis he argued that to include as part of the information relevant to the decision the fact that the other person must have the capacity to consent to the sexual activity and must in fact consent before and throughout the sexual activity imposes a discriminatory cerebral analysis on the potentially incapacitous. I reject that submission. As the Court of Appeal observed, at para 96, “amongst the matters which every person engaging in sexual relations must think about is whether the other person is consenting” (emphasis added). If that is properly viewed as cerebral or as involving a degree of analysis, a decision to engage in sexual relations is necessarily cerebral or analytical to that extent.” (JB at paragraph 19).

HHJ Rogers also noted (albeit that he ultimately dismissed the potential relevance of the decision of Poole J in PN (Capacity: Sexual Relations and Disclosure) [2023] EWCOP 44, in which the latter found that P retained capacity to engage in sex because, notwithstanding a pattern of impulsivity ad inappropriate, non-consensual sexual touching, this arose as a result of PN’s “disregard” of the need for consent rather than an inability, due to an impairment of or disturbance in the functioning of the mind or brain, to understand the need for consent in a sexual partner (paragraph 22, citing PN at [16]) .

Ultimately, HHJ Rogers rejected the Official Solicitor’s acceptance of Dr O’Donovan’s conclusions, noting that:

1. LM did not understand the concept of age and, even after education, while he was aware that sex was legal at “one and a six” could not the understand if sex with a 14 year old or 18 year old was legal (paragraph 28);
2. LM reportedly struggled with understanding his own or others’ ages in chronological terms (paragraph 41);
3. The argument pursued on behalf of the Official Solicitor that “LM understands consent, but and in any event any perceived difficulties, in the moment, are attributable to his innate urges not to intellectual deficit, so that, applying the legal test, the essential causal nexus is not there. In terms of authority. Miss Gardner submits that this case is akin to PN and should be dealt with similarly (paragraph 50).

HHJ Rogers concluded:

56. Variously, as set out above, [Dr O’Donovan] describes LM as having difficulty processing information, cognitive rigidity and reduced impulse control, all consistent with his diagnosis. She notes his limited insight into his offending and his difficulty in interpreting the actions of others. In her analysis section in G30, Dr O’Donovan notes LM’s inability to interpret information about prospective partners. She recognises the difficulty in interpreting and processing information and says in terms “he may find it difficult to determine if an individual was unable to consent to sexual relations in the absence of overt visual and verbal cues.” In conclusion, Dr O’Donovan’s view is that “as LM’s decision to engage in sexual relations largely relies on the interpretation of his own internal world, he is able to process the necessary information to make this decision.
57. I confess to being unclear precisely what Dr O’Donovan means when referring to LM’s internal world but to the extent she is regarding consent as irrelevant to LM’s thinking in the moment as he is overwhelmed by his desires, that may be true in the moment for him, but it is no answer, in my judgment, to the question of whether he is able to understand, retain, use and weigh the points relevant to consent.
58. Therefore, for reasons which are not entirely obvious, I am satisfied that Dr O’Donovan’s conclusion on this aspect is flawed. I find much of her analysis to be sound. It seems to me to tend towards the opposite answer to that she alighted upon. In my judgment, she focussed too much upon LM’s reaction to the offence of rape. She is correct, of course, in a strict criminal law sense that his plea of guilty to rape must mean that the Crown Court was satisfied as to his fitness to plead and the mens rea. Without more information and aware that the strict criminal law position does not always demonstrate the precise practical nuances, I am loathe to draw such a firm conclusion as to LM’s understanding of consent. The disposal by way of a hospital order does not undermine the correctness or implications of the conviction but shows the complexity of the situation.
59. I agree with Mr Brownhill’s submission that Dr O’Donovan appears to have taken a sequential approach, in discounting questions of consent given her view that the driving forces would overwhelm LM to act as he chose to do so. In my judgment, as Mr Brownhill submits that is a misunderstanding of the law as set out in JB. Just because a particular outcome in a real-life situation may in the end be determined by an overwhelming need for sexual gratification, driven not by intellectual deficit but by personality or early life experiences, that does not mean that the test relating to the issue of consent in the overall assessment of engaging in sexual activity does not arise. That first stage may not be dispensed with. I agree with Mr Brownhill that to do so would run directly counter to the approach dictated by JB.
60. The same points arise in respect of Dr O’Donovan’s addendum report. Strikingly she acknowledges that LM might not recognise that a sexual partner freezing is consistent with withdrawal of consent and yet, as before, discounts that in terms of relevance because of LM’s need for sexual gratification which she believes will override other thoughts. That, in my judgment, is a misunderstanding of the legal text to be applied and a further example of sequential thinking.
61. I agree with Dr O’Donovan that LM’s sexual drive is not attributable to his intellectual deficit. Where I respectfully disagree is where she concludes that the essential casual nexus is not established. The relevant nexus is not with the sexual drive and therefore the overriding feelings in the moment but in relation to LM’s inability to negotiate the elements of consent which the evidence demonstrates, and I find, is plainly and directly because of his intellectual deficit.

HHJ Rogers ultimately rejected the comparison with Poole’s PN judgment (see paragraph 65).

On the question of sharing information regarding his offending history, HHJ Rogers noted that the question had been raised, unhelpfully, in a vacuum, with no actual best interests decision in issue (paragraph 68). He declined to give guidance on the issue but at paragraph 71 pointed instead to the PN judgment in which (at paragraph 25), Poole J had observed that:

However, for present purposes I assume that the relevant information will include the risks to others that arise from the previous offending, how the disclosure of information might be given so as to allow others to avoid or mitigate such risks and prevent P from committing offences which could have adverse consequences, and the reasonably foreseeable consequences of sharing or not sharing the information. In PN’s case there are a large number of possible ways in which he might share information, from providing strangers with a long list of previous behaviour, to saying to someone with whom he has formed a relationship, “I have been accused of touching women inappropriately before, but I will not do so with you.”

Comment

The Court of Appeal has recently held that recourse to autonomy is (we paraphrase) apt to lead people astray when it comes to best interests: see the HB case discussed in the practice and procedure section of this Report.  It might be thought that this case shows how recourse to autonomy can be equally apt to lead people astray when it comes to the assessment of capacity.  Dr O’Donovan’s desire, matched by that of the Official Solicitor, to uphold the ‘autonomy’ of LM arguably led to an approach to capacity which downplayed the effect of LM’s cognitive impairments.  HHJ Rogers, by contrast, took what might be thought to be a more detached view – and a view which (on its face) more obviously accords with the law as set down in JB.

A side point is that it seems that the Official Solicitor’s position was in part influenced by LM’s decision to plead guilty to rape historically (see paragraph 58).  However, as the Supreme Court emphasised in JB, the criminal law and the civil law in respect of sexual activity are separate and distinct areas.  Further, in the criminal context, the essentially procedural concept of ‘fitness to plead’ and the substantive concept of ‘mens rea’ are both concepts which appear to be linked to mental capacity, but derive from different places and should not be confused.  See further in this regard, generally, our webinar on “When P is an offender,’ and, specifically with reference to the law relating to sex, Alex’s article What place has ‘capacity’ in the criminal law relating to sex post JB?