A Local Authority v RS



Judge: MacDonald J

Citation: [2020] EWCOP 29

A Local Authority v RS [2020] EWCOP 29 concerned a man in his mid-20s with autism and mild learning disability. As a child he was exposed to domestic and alcohol abuse, bereavement, and inappropriate sexual activity and now lived in a supported placement. His fetish was paraphilic infantilism, or ABDL (adult baby / diaper lover), involving adults role-playing a regression to an infant-like state, including the wearing of nappies. The concern was that pursuing this interest in the exploration of his sexuality led him to engage in risky behaviour, including meeting males found on the internet. The judge was asked to determine RS’s ability to decide on residence, care, contact, and internet/social media use. MacDonald J concluded that RS had capacity for all four matters.

The judgment navigates the tightrope between unwise decisions and incapacitated views:

  1. … As I have noted, risky behaviour is not inevitably evidence of a failure to understand the risk being taken or evidence of an inability to weigh that risk when deciding whether to act despite it. The repetition of risky behaviour can also indicate that a person has understood the risk, weighed it and decided to take it anyway notwithstanding the dangers.

The social work evidence of past occasions of objectively risky or unwise decisions failed to address why they demonstrated incapacity as distinct from other possible reasons for unwise/risky behaviour. Moreover, “The fact that a decision to make contact with a man to satisfy fetish urge may be considered risky is not of itself evidence of a lack of capacity to take that decision” (paragraph 49). There were also issues as to the causative nexus, particularly whether RS’s decision-making were influenced by a mental impairment “as opposed to from his psychological makeup, his sexual proclivities and desire and the fact he is a young man with a level of impulsivity commonly seen at his age, which factors cause him to make unwise but capacitous decisions”. The expert evidence developed under cross-examination:

  1. Dr Lawson clearly articulated in cross examination the factors that led him to this revised conclusion. First, that it is important not to use, as the local authority had sought to use, repetitive risky behaviour to justify an assessment of lack of capacity. If RS’s risky behaviour stemmed from his learning disability and autism it would be seen in all areas but it is not. Second, further consideration had to be given to the significant issues of RS’s maturity and his actual age and he gave these more weight in coming to a balanced view as to why he makes unwise decisions. Third, and within this context, caution was required against making the mistake of attributing RS’s impulsive decision making to his learning disability and autism where elements of RS’s history and development may explain that conduct, which falls within the ordinary recklessness demonstrated by young people. Fourth, the sexual element is a powerful drive and RS’s mild learning disability and autism are not the driving force behind his fetish and ABDL behaviour. Fifth, on the totality of the evidence Dr Lawson could not consider RS to have an abnormal level of impulsivity. Sixth, whilst the possibility cannot be excluded that RS’s impulsive and reckless decision making is linked to his learning disability and autism, his decision making could also represent a normal level of impulsivity and recklessness for a young person of his age.

With regard to the use of the internet and social media in particular, the judge noted that “the behaviour of RS in meeting up with strangers after only limited contact with them online, which the local authority seeks to characterise as so fundamentally irrational that it must demonstrate that RS lacks capacity, is now also the basis of some widely used social media applications” (paragraph 54). In conclusion, therefore, it was declared that RS had capacity to decide the four matters and no changes to his support were anticipated. Nor was he deprived of his liberty, so no authorisation was required.

 

CategoryMental capacity - Assessing capacity Date

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