A Local Authority v P and A CCG



Judge: HHJ Williscroft

Citation: [2021] EWCOP 48

Summary[1]

A 24-year-old with learning disability, autistic traits and mood disorder was sharing a flat with two residents and at significant risks arising from contact with others. Having been sexually abused as a child, he was being sexually exploited, being drugged to have sex with random men. Despite sex and drug education, he continued to abscond so 2:1 support 24 hours a day was put in place which he opposed.

On application to the Court, he was considered to have capacity to make decisions as to sexual relations, internet and social media, but was found to lack capacity as to care, residence and contact with others. In particular, he could not understand the risks he faced when meeting people to engage in sex or drug use. He was not able to put into action even fairly minimal basics that would keep him safe. He was able to describe what dreadful things might happen, but unable to relate them to himself and so could not weigh those risks in the balance.  As HHJ Williscroft identified:

  1. P is unable in my assessment to make decisions about such contacts as he is often in a state it seems to me led by compulsion or obsessive behaviour, by the complex combination of age, sexual drive and diagnoses, driven too by trauma, when he is driven to meet people for sex. Their motivation and engagement with him he cannot understand or process and their communications he cannot interpret so that not just on a rare occasion but very regularly he is so uncomfortable that he calls police or carers to get him home. Then it can appear in discussion later that in fact he has been exploited, pressured and drugged for the advantage solely of other people’s pleasure and he is unable to understand that to such an extent that he continues some relationships even when people have behaved in this way to him as it is apparent his understanding of social interactions is so limited.

 

  1. Social workers have obviously considered with care whether wanting and engaging in risky multiple sexual relationships might be at least not uncommon for a young gay man like P and they have wanted to enable him to have as much autonomy as possible. It is I accept rather odd that he can understand the basics of sex but not have the capacity to engage in a relationship that is based almost exclusively on the need for sexual activity but this is as a result of looking at domains of understanding separately and part of ensuring autonomy is only restricted where an analysis of lack of capacity is clear.

Helpfully, the Judge prepared a letter to the young man to explain her decision.

Comment

The silo-ing of sex and contact decisions continues to be of interest and will, hopefully, be considered by the Supreme Court in JB in due course. Providing the decision by letter to the young man was also an important step, enabling him to understand the reasons behind the significant measures that were in place.

 

[1] Note, Arianna having been involved in the case, she has not contributed to this note.

CategoryMental capacity - Contact, Medical treatment - Deprivation of liberty, Medical treatment, Mental capacity Date

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