Judge: Cobb J
Citation:  EWCOP 24
Characteristically, Cobb J delineated the issue to be decided in this case at the very outset:
This judgment does not establish any great or new point of legal principle. It sets out my reasoning in reaching conclusions in a case which has the characteristics of many which come before the Court of Protection: namely, where the subject of the application is believed to have capacity in making decisions in relation to certain aspects of their life, but not in others; where there are, in such cases, inevitably ‘grey areas’ in between. It recognises the importance of treating each capacity issue as decision-specific and time-specific, as the judicial guidance in PC v City of York Council  2 WLR 1 and B v A Local Authority  EWCA Civ 913;  3 WLR 685 makes clear. Where there are true ‘grey areas’, it illustrates the value of giving the parties and the court the chance, while at all times maintaining an eye on the key objectives laid out in the Court of Protection Rules 2017, to examine the evidence forensically, test the assessments and expert views, and achieve, where possible, a degree of clarity in the best interests of the subject. In cases such as this, the “right of every individual to dignity and self-determination” compete hard with the “need to protect individuals and safeguard their interests where their individual qualities or situation place them in a particularly vulnerable situation” (B v A Local Authority at ).
The case concerned AW, a 35-year old man with a diagnosis of mild learning disability and autistic spectrum disorder. He had lived at a residential care placement, Windmill House, for 7 years. He was described as having “many skills”, and was assessed as someone who:
… can appear very able and without further examination would commonly appear more able than he is. This is due to his keenness to engage with others, relatively good self-presentation skills, verbal skills, and ability to learn phrases. He is a very likeable man. It is easy to underestimate his vulnerability and difficulty to apply abstract concepts of safety in relationships due to his autism.
As an adult, AW pursued gay relationships, spending much time and deriving pleasure from accessing gay websites, gay chat rooms and dating sites; he enjoyed watching others performing sexual acts in the chat rooms, which he found sexually arousing. While his mother was accepting of this when he was living at home, it nonetheless raised concerns for her and those caring for him, particularly given his social vulnerability. Those concerns became all too real in 2009 when AW was seriously sexually assaulted by a man who he had met on the internet; the police became involved, although no prosecution followed. A further safeguarding referral followed in 2012, when he moved in with another man who he had met on the internet. More recently he had engaged in inappropriate behaviour with a minor, which unsurprisingly led to police involvement. Numerous incidents were detailed before the court in which AW had placed himself at very considerable risk in the company of men whom he had met through dating sites on the internet. When these relationships had run into difficulties, or had soured (as inevitably had been the case), AW often responded aggressively, and verbally and physically assaulted those around him (including his mother), sometimes indiscriminately. He had also run up significant debt through his excessive phone and internet use.
When AW moved to Windmill House in 2013, and routinely since, his care needs had been assessed; he was considered to be unable without support and supervision to maintain a habitable home environment, unable to manage and maintain nutrition, maintain his personal hygiene, be appropriately clothed, develop and maintain family or personal relationships, make use of necessary facilities or services in the community. Such was his level of need that he had forty hours of one-to-one support per week, including specifically times when he was accessing the community. He was said generally to be very happy at Windmill Lodge, though because he spent many hours at night on the internet and on his phone, he tended to sleep all day, missing activities; this had caused him to become somewhat socially isolated.
AW’s access to, and use of, the internet and social media was limited and restricted by the care staff at the care home. He was subject to 1:1 supervision when accessing the internet (which was permitted once per day) and at all other times, he had not had access to internet enabled devices. The Local Authority maintained that, due to the risks associated with AW’s behaviour when using the internet, it was in his best interests to be supervised to access websites, including dating websites.
The Local Authority accepted that AW was able to engage with men on dating sites and should he wish to take the step of meeting someone in person, then (subject to the restrictions in place as a result of the COVID-19 pandemic) the care plan would be followed, and that individual would be risk assessed. Subject to the outcome of any such assessment, arrangements for direct contact would be made. Care staff had accompanied AW to clubs and events which would enable him to engage with other men. They wanted to continue to discuss his need for a relationship with him in an open manner, whilst at the same balancing his needs for safety and protection from exploitation.
In late 2019 (and until the end of February 2020), AW had become fixated on a man who lived at a separate residential placement. At the time of his assessment by the psychiatrist directed to report to the court, Dr Rippon, AW was intent on moving to the placement to take that relationship further. However, subsequently, AW made clear that, as the man no longer wanted to progress the relationship, he did not want to move.
In February 2020, Cobb J had – by agreement – made declarations that AW lacked capacity to conduct the proceedings; to make decisions about contact with others; to use social media and the internet; to make decisions about disclosure of personal information to others; but that he had capacity to consent to sexual relations. As Cobb J noted:
This suite of conclusions reflects a potential anomaly (as Hayden J reflected in Manchester City Council Legal Services v LC & Anor  EWCOP 30 at ) namely the “decision making facility to embark on sexual relations whilst, at the same time, he is not able to judge with whom it is safe to have those relations”.
As he noted, later in the judgment, the fact that AW had capacity to consent to, and enter into, sexual relations:
At the hearing in February 2020, Cobb J adjourned consideration of the issues of whether AW lacked capacity to make decisions regarding (a) where to reside and (b) his care and support arrangements, as these were to a greater or lesser extent contentious.
At the time of the hearing in May 2020, given that AW did not wish to leave Windmill House, the issue of capacity to decide upon residence had become academic, but Cobb J agreed to determine the issue on the basis that this would avoid another return to court in the future if AW met another man and wished to move again. Cobb J identified that:
Importantly, on a proper analysis, and contrary to the position that at one stage had suggested itself:
Cobb J also held both that AW was deprived of his liberty at Windmill House, and that this was lawful for purposes of Article 5 ECHR.
Interestingly, Cobb J took care to note that:
I am satisfied from all that I have read that AW is becoming adversely affected by the proceedings. He has expressed a wish not to see his solicitor or social worker, and he has had little contact with his advocate. His mother agrees with this, expressing her concern (see  above) that the proceedings are causing him to become ‘shut down’. It is patently in his interests that the proceedings come to an end, and the orders I shall make shall therefore be final orders.
Although Cobb J modestly suggested that the judgment did not establish any or new great legal principle, it is – as Sherlock Holmes would have said – not without points of interest. Some of those points arise out of the careful recitation and analysis of the evidence going to capacity, serving as a model of the resolution of a complex – finely-balanced – case. Others arise out of the fact that this is another in a small (but slowly growing) body of case-law relating to executive functioning, described (at paragraph 39) as “the ability to think, act, and solve problems, including the functions of the brain which help us learn new information, remember and retrieve the information we’ve learned in the past, and use this information to solve problems of everyday life” – crucially, and properly, linked to one of the MCA criterion (in this case, his problems with executive functioning being such as to prevent AW being able to understand the information relevant to residence and care).
Finally, the case now needs to be read in light of the subsequent decision of the Court of Appeal in JB that capacity in the context of sexual relations should be normally, in most cases, be assessed on the basis that the decision is whether the person has capacity to engage in sexual relations not – as Cobb J was loyally considering here – capacity to consent to sexual relations. AW’s case is a paradigm case in which, as a person who was not merely a passive recipient, but an actual initiator of sexual activity, it becomes very clear in light of JB that talking about ‘consent’ was simply asking the wrong question. If this case had been decided after JB, it is likely that the court would (1) have been concerned as to whether AW could process the information that any prospective sexual partner had to consent before and throughout the relevant activity; and (2) explored whether it was necessary to undertake the TZ ‘workaround’ to secure his ability to express himself sexually without putting himself at risk. It could, potentially, have approached the question that, on a proper analysis, AW did not have capacity to decide to engage in sexual relations, and that best interests decisions could be made on his behalf as to when to engage in such relations, taking into account the potential risks that he might be at and might pose in so doing.
 Although it should perhaps be noted that Cobb J himself, referred at paragraph 42, to AW’s capacity to consent to, “and enter into” sexual relations, even though the declaration made was (as was conventional at the time) framed solely as “capacity to consent to sexual relations.”