Judge: Baker J
Citation:  EWHC 973 (COP)
In July 2013, Baker J declared that TZ, a 24-year-old man with mild learning disabilities, atypical autism and hyperactivity disorder, who lacked the capacity to litigate, had the capacity to consent to and engage in sexual relations. At that hearing, Baker J adjourned two further issues, namely whether he had the capacity: (1) to make decisions as to his contact with other people, and (2) to make decisions as to his care needs. After further assessments, those issues, and others consequential issues, were listed for a further hearing in early December 2013.
At that point, it was generally known that the question of capacity to consent to sexual relations had been considered by the Court of Appeal in a case in which judgment had been reserved. Baker J therefore decided, with the agreement of the parties’ representatives, to adjourn the hearing until after the Court of Appeal judgment was available, and to permit the parties to file addendum written submissions as to the impact of that decision on this case. In the event, the Court of Appeal judgment, IM v LM and others  EWCA Civ 37, upheld the interpretation of the law concerning capacity to consent to sexual relations that Baker J had adopted in these proceedings. As a result, the supplemental submissions delivered by the parties were brief.
In the event, the hearing in December took a slightly different course from that anticipated in July because of a refinement of the issues as identified by the parties. The principal focus of the latest assessments was the issues that may arise as TZ endeavoured to meet, and form intimate relations with, other men. TZ was clear that he wished to have the opportunity to have these experiences, and all professionals involved in supporting him agree that he should be given that opportunity. The question was whether he had the capacity in respect of decisions that may have to be made when that opportunity arises.
Baker J summarised the issues as follows:
The relevant decision
The local authority argued initially that the relevant decision in the case was whether TZ had the capacity to make decisions regarding contact with others, either generally or with one or more named individuals. As Baker J noted, the difficulty with this formulation was that it did not focus on what McFarlane LJ described in PC and NC v City of York Council  EWCA Civ 478,as the “specific factual context” arising at this stage, namely the prospect of future contact of a personal and intimate nature between TZ and an individual or individuals as yet unidentified. Baker J noted that it was not asserted that TZ lacks capacity generally to make decisions as to contact. Equally, there were at present no named individuals who can be identified with whom he may have contact of a personal intimate nature.
The local authority reformulated their position, and ultimately submitted that risk was the live issue in this case, given the current situation in which the court had determined that TZ had capacity to consent to sexual relations and that TZ now wished to have contact with other men which may include intimate sexual relations. The local authority submitted that the key question in this context was whether TZ lacked capacity to assess risks to himself from such contact.
The Official Solicitor submitted that the key question was whether TZ could decide what support he requires when meeting unfamiliar adults. He also rejected the suggestion that the relevant decision could be characterized simply as a decision about contact in general or with any specific individuals. The Official Solicitor submitted that the better analysis was that the relevant decision at this stage was whether TZ can make a decision about whether or not to receive care and support when meeting unfamiliar adults. He argued that assessment of risk was part of the information relevant to making the decision.
Baker J found himself unable to accept either submission without some qualification. He did not agree with the Official Solicitor:
“15. […] that the relevant decision can be characterised merely as whether TZ can decide what support he requires when meeting unfamiliar adults. The question of support required when meeting unfamiliar adults only arises if he lacks capacity in making decisions when meeting unfamiliar adults.
16. On the other hand, I do not accept Mr. Dooley’s [for the local authority] formulation. I agree with Mr McKendrick that the assessment of risk is not the decision but rather part of the information relevant to making the decision This is indeed expressly set out in s. 3(4) of the MCA which provides that information relevant to a decision includes information about the reasonably foreseeable consequences of (a) deciding one way or another, or (b) failing to make the decision. It seemed to me that Mr Dooley in fact acknowledged this point himself in the course of his oral submissions when he observed that the decision must include consideration of the benefits and disbenefits arising from that decision. Thus the analysis of risk is part of the decision-making process, not the decision itself.
17. That analysis is required in situations when TZ comes into contact with certain types of people, namely those with whom he wishes or may wish to have sexual relations. That is the ‘specific factual context’ in this case. Thus the relevant decision is not the decision whether to have contact with people generally. That is too broad. It is not a decision whether to have contact with a named individual. Since no individual has been named, that is too narrow. The primary relevant decision is whether or not an individual with whom TZ may wish to have sexual relations is safe. The secondary relevant decision is whether, in those circumstances, he then has the capacity to make a decision as to the support he requires.
18. Accordingly, the questions arising here are:
(1) whether TZ has the capacity to make a decision whether or not an individual with whom he may wish to have sexual relations is safe, and, if not,
(2) whether he has the capacity to make a decision as to the support he requires when having contact with an individual with whom he may wish to have sexual relations.”
Did TZ have these capacities?
After a close analysis of the evidence, Baker J held that TZ lacked capacity in both domains. In respect of the first domain, he placed particular weight upon the expert evidence that, whilst he “had the ability to understand and retain information, he lacks the ability to use or weigh up the information, including the ability to assess risk and, in the language of s. 3(4), to understand the reasonably foreseeable consequences of the decision. This is, in my judgment, a good example of the distinction identified in paragraph 4.30 of the Code of Practice between, on the one hand, unwise decisions, which a person has the right to make, and, on the other hand, decisions based on a lack of understanding of risks and the inability to weigh up the information concerning a decision” (paragraph 37).
Baker J noted in conclusion on this aspect that: “[i]n reaching these conclusions as to capacity, I have reminded myself, again, of the need to avoid what could be called the vulnerable person’s protective imperative – that is to say, the dangers of being drawn towards an outcome that is more protective of the adult and thus fail to carry out an assessment of capacity that is detached and objective. I do not consider that I have fallen into that trap in this case.”
What orders should be made in TZ’s best interests
Baker J set out a series of principles and dicta to guide his approach – of note are paragraphs 46-48, where he held:
“46. Mr. McKendrick further submits, rightly, that in applying the principle in s.1(6) and generally, the Court must have regard to TZ’s human rights, in particular his rights under article 8 of ECHR to respect for private and family life. As the European Court of Human Rights observed in Niemitz v Germany (1993) 16 EHRR 97 at para 29, ‘private life’ includes, inter alia, the right to establish relationships with other human beings. This has been reiterated on a number of occasions, see for example Pretty v UK (2002) EHRR 1 at paragraph 61 and in Evans v UK (2008) 46 EHRR 34 at paragraph 71. There is a positive obligation on the state to take measures to ensure that his private life is respected, and the European Court has stated that ‘these obligations may involve the adoption of measures designed to secure respect for private life even in the sphere of the relations of individuals between themselves’: Botta v Italy (1998) 26 EHRR 241 paragraph 33.
47. These principles plainly apply when considering what steps should be taken to protect someone, such as TZ, who has the capacity to consent to sexual relations but lacks both the capacity to make a decision whether or not an individual with whom he may wish to have sexual relations is safe and the capacity to make a decision as to the support he requires when having contact with such an individual. In such circumstances, the state through the local authority is under a positive obligation to take steps to ensure that TZ is supported in having a sexual relationship should he wish to do so.
48. In passing, it should be noted that this is consistent with the provisions of the United Nations Convention on the Rights of Persons with Disabilities, (ratified by the UK in 2009 although not yet incorporated into English law) and in particular article 23 which requires states to ‘take effective and appropriate measures to eliminate discrimination against persons with in all matters relating to marriage, family, parenthood and relationships, on an equal basis with others’.”
Noting that decision-making for incapacitated adults should, as far as possible, be a collaborative exercise, Baker J set out a series of observations as to the contents of a care plan that was to be drawn up for his approval, divided in (a) basic principles; (b) education and empowerment; (c) support; (d) intervention; (e) decision-making. Under ‘basic principles,’ he noted that its purpose is “to identify the support to be provided to assist [TZ] in developing a sexual relationship without exposing him to a risk of harm” (paragraph 56(6)). Under ‘education and empowerment,’ Baker J noted that “[w]hen delivering a plan to address TZ’s lack of capacity to decide whether someone with whom he may wish to have sexual relations is safe, the principal focus should be on educating and empowering him to make these decisions. Any provisions in the plan directed at protecting him and restricting his contact should be seen as interim measures until the time when he acquires skills to make such decisions for himself.” Under ‘support,’ Baker J wanted to see, in practical terms, the support TZ would receive when he went out with a view to meeting individuals with whom he might wish to have sexual relations. Under ‘intervention,’ Baker J wanted to see a plan that clearly delineate the circumstances in which care workers might intervene to protect TZ and the steps they were entitled to take when intervening.
Finally, under ‘decision-making,’ Baker J rejected the proposal that immediate decisions under the care plan (for instance example in the event that TZ found himself in a situation that was unsafe) could be made by a welfare deputy in the form of the Director of Adult Social Care and Wellbeing. Baker J noted that he did:
“82. … not consider that this is an appropriate case for the appointment of a welfare deputy. The Code clearly provides that deputies for personal welfare decisions will only be required in the most difficult cases (paragraph 8.38) and that, for most day to day actions or decisions, the decision-maker should be the carer most directly involved with the person at the time (paragraph 5.8). That is simply a matter of common-sense. If a situation arises in which TZ is perceived to be at risk, a decision needs to be taken by the person on the ground who is giving him support. It would be impractical to refer the decision to anyone else, either the Court or a deputy. Any decision that has to be taken arising out of an immediate risk of harm should be taken, so far as possible, collaboratively and informally by TZ’s care worker.
83. The question arises as to the course to be followed if the support worker is unable to extract TZ from a situation where he is at immediate risk of harm. The MCA does permit a deputy to restrain P if certain conditions are satisfied: see s.20 (8) to (11). Parliament has expressly provided, however, that a deputy cannot make a decision preventing contact between an incapacitated adult and a named individual. By the time action is needed to remove TZ from a situation where there is a risk of harm, the individual or individuals who are the source of the risk will in all probability be identified or identifiable, so a deputy would be unable lawfully to prevent that contact with or without using restraint. If the situation cannot be resolved by the support worker, consideration must then be given to applying to the court for injunctive relief. In an emergency, the police should be called. To my mind, the appointment of a deputy to be given the power to make decisions for the removal of TZ from such situations, enforceable by acts of restraint under s.20, would be inconsistent with the provisions of the Act and Code.
84. Long-term decisions, such as whether or not TZ should move out of his accommodation and cohabit with another man, are plainly matters more appropriately decided by the Court, given the scheme of the legislation.
85. The appointment of a deputy to take such decisions is therefore both impractical and, in my judgment, inconsistent with the scheme of the Act and Code. It is also arguable that it would run counter to the principal focus of the plan, which should be to educate and empower TZ to make these decisions for himself.
86. Accordingly, I conclude that the care plan should provide that any immediate decisions concerning risk, for example whether TZ is safe in a social setting, should be made by his support worker. Long-term decisions should be referred to the Court of Protection.”
Comment: This decision is of note for the careful analysis of the decision(s) in question, implementing in so doing the clear guidance of the Court of Appeal in PC – absent clarity in this regard there was a real risk that the wrong conclusion would be reached either because the question being posed was too narrow or because it was too broad. In turn, the assessment of where TZ’s best interests lay was one that properly took into account the (commendably shared) desire of all concerned to produce an outcome that allowed him to develop and explore his desires to form sexual relationships with other men in such a way that would at the same time (insofar as possible) not bring him into harm. It is in many ways a case study of the balance between protection and autonomy enshrined in the MCA 2005. Whether it would, in fact, be consistent with the approach mandated by the CRPD is a rather different question to which the answer is, we suspect, not that Baker J would have anticipated. We will have much more upon the CRPD and its implications for the MCA 2005 in our June issue.
One point that should perhaps be noted that, whilst it is difficult to fault Baker J’s decision not to appoint a welfare deputy on the fact facts of the case, but it did not take into account the decision of Roderic Wood J in SBC v PBA and Others  EWHC 2580 (Fam);  COPLR Con Vol 1095, in which Roderic Wood J had held that the test to be applied when determining whether to appoint a deputy (whether to manage a person’s property and affairs or take decisions regarding their health and welfare), was to be derived from the unvarnished words of the MCA 2005, and that there was no additional requirement to be derived from the Code of Practice that in order for a deputy to be appointed it was necessary that the case before the court be one of the ‘most difficult’ categories of case (the language used in the Code). For our part, the editors would prefer the approach adopted by Baker J at paragraph 82 (not least as Alex was arguing for it in SBC!) but we now have two directly inconsistent judgments upon the relevance of paragraph 8.38 of the Code in this regard.