Local Authority A v ZZ
Summary
This matter [1] related to a man HHJ Burrows named ‘Peter’, who was 19 years old at the time of the judgment. Peter had had what is described as a “troubled and abused life and he presents as a significant risk to children and vulnerable adults as a result of his history of sexual offending” (paragraph 1).
Peter had been convicted of committing a serious sexual offence against a young child when he was a teenager. He was made the subject of a Sexual Harm Prevention Order which forbade him from being in the same premises as a child without supervision. He was made a looked-after child under s.20 Children Act, and placed in a residential educational placement. He later moved to a Supported Living Accommodation. He had pending criminal charges at the time of the hearing.
Peter was in a relationship with ‘Jenny,’ whom he met at college and is described as a ‘vulnerable person.’ They were never left on their own, despite their wishing to have a sexual relationship with each other.
A number of capacity assessments were undertaken in relation to Peter’s capacity, including reports from a clinical neuropsychiatrist, a forensic psychologist, and Dr Lisa Rippon, a developmental psychiatrist. Peter was diagnosed with ADHD, executive functioning difficulties and a learning disability, though did not meet the criteria for autism. He was engaged with care planning, therapeutic work and education, but was considered to need long periods of time to learn new skills.
The instant judgment was solely in relation to his capacity to make certain decisions.
The parties agreed that Peter lacked capacity to conduct proceedings, to make decisions as to his care, contact with people other than Jenny and his mother, and to use the internet and social media; capacity to marry also appears to be agreed once the court determined whether Peter had sexual capacity. The judgment does not address these domains in detail. Judge Burrows considered Peter’s capacity in a range of domains, where the parties were not agreed.
Residence: Looking to the list of relevant information in LBX v K [2013] EWHC 3230 (COP) as a starting point, Judge Burrows considered it clear “that Peter is able to understand the first seven: which are about the type of property, the difference between visiting and living in a place, the area in which it is, nearness to family friends, activities available, whether he would have to pay for the place himself. Dr Rippon accepts Peter can understand all those. The contentious issue concerns care. Does Peter understand that care is an important aspect of the place he would have to live in? Or, put another way, that Peter knows he has to reside in a place where care is available, and that would rule out places where that care was not available, whether because of unsuitability or because no commissioned service would be available there” (paragraph 35). Peter would ideally have liked to live with Jenny and her mother, but it appears to be agreed that this is not a viable option. The Official Solicitor argued that Peter had “capacity to make a decision about residence where care is not an issue, because the only option is a placement with care provided” (paragraph 36). HHJ Burrows observed:
37. This is a difficult and common point. I have concluded that Peter has the capacity to make the decision he has to make over residence, and that is because he does not actually have a decision to make over whether he lives in a care setting. That being said, if in the near future Peter were to want to move to a place without an adequate level of care, support and supervision, the matter would have to be revisited. If the option was between Placement Q (similar to Placement 1) and Placement R (just an ordinary flat with Jenny, but without any adequate supervision) the issues of residence and care would be closely related and the Court may well conclude that he lacks the capacity to make that decision.
Property and Affairs: Peter was able to manage his limited income and expenditure, and had an appointee who dealt with his benefits. “His usual spending decisions are not regularly overridden” (paragraph 39). HHJ Burrows found that the presumption of capacity was not displaced in relation to his “relatively straightforward financial affairs” (paragraph 39). The local authority argued that it would be incoherent to determine that he was able to manage his property and affairs not managed by his deputy. HHJ Burrows did not agree: “[i]f Peter did not have an appointee, his property and affairs decision making would become more complex for him. I doubt he would then have capacity to deal with the more complex part of his property and affairs. He would then need a deputy or, as it happens, an appointee to enable him to have capacity of the parts of his financial affairs he can manage” (paragraph 39).
Contact with Jenny and Peter's mother: The Official Solicitor invited the court to determine that Peter had capacity to make decisions about contact these two individuals (though he was agreed to lack capacity to interact with the world at large), adopting a ‘person-specific’ approach. Dr Rippon considered that Peter had capacity to make decisions about contact with these people. However, HHJ Burrows rejected this evidence:
43. Dr Rippon did consider that Peter was able to make decisions about contact with Jenny because he knows her so well and has a strong emotional attachment to her. Her concerns about Jenny were about Peter's sexual impulsivity and what she considered to be his lack of insight into that aspect of his thinking. That impulsivity equally applies to strangers as it does to Jenny, it seems to me. That is because Peter, whilst recognising that he is liable to be sexually disinhibited, is unable to do anything about it. That is the essence of the risk that makes him lack capacity when deciding whether to have contact with the world in general. I am unable to see how that situation is any different when it comes to contact with Jenny. Since Peter lacks capacity to make decisions about his contact with people in general because of his inability to understand the risks he poses to others, and his inability, therefore, to mitigate those risks, I am persuaded that he lacks the capacity to make decisions about contact with his mother and Jenny.
Sex and contraception: In discussions with Dr Rippon, Peter was clear in his understanding that it was Jenny’s decision whether or not she wished to have sex with him, and that it would be wrong to have sex with an unconscious person because they could not consent. These questions were considered in the specific context of Peter’s relationship with Jenny. HHJ Burrows found that “[Peter] understands what the physical act of sexual relations consists in. He understands that where there is sexual intercourse between a man and a woman there is a risk that the woman could become pregnant without adequate protection. He also understands that sexually transmitted diseases exist and can be spread from the infected partner to the other. This too can be ameliorated by the use of condoms. Peter also understands that consent is necessary on both sides. He need not have sex if he does not wish to. Equally, neither should his partner.”
However, Dr Rippon’s written and oral evidence raised concerns about Peter’s “lack of what she calls ‘insight into his ability to control his behaviour and stop himself from engaging in behaviour he knows is wrong.’ In her oral evidence on questioning from Mr Lewis and me, Dr Rippon focused on situations Peter may find himself in where he may find it difficult to stop himself because of his sexual urges. This has caused some difficulty for the court. Clearly, urges are, by their very nature, difficult to control, and it would be setting the bar too high if capacity to consent to sexual relations were to be ruled out because a person was unable to control an urge (for instance) to carry on with the sexual act. Having said that, Peter is a sexual offender who is unable to control his urges to engage in very harmful and criminal sexual behaviour, as I have already found” (paragraph 46).
HHJ Burrows ultimately rejected the suggestion that a “sixth factor…ought to be introduced into the JB test, namely, to have insight into and the ability to control one’s urges” (paragraph 47). He concluded that Peter had capacity, on the basis that “ordinary risk taking, which may be unwise does not render the decision incapacitous. I would go further. A person can have the capacity to engage in sexual relations, understanding that his partner may withdraw her consent at any moment, and that with that he must stop the sexual act. If, however, when that withdrawal of consent happens the person is unable to overcome his urges, that is nothing to do with capacity to consent to sexual relations” (paragraph 47). Whilst HHJ Burrows noted Jenny’s vulnerability, it also found that “[a]lthough the protection of the public is a relevant consideration in MCA and Court of Protection cases, it is not the primary purpose of this jurisdiction. Peter is subject to a criminal order designed to protect vulnerable would-be victims. The fundamental principle of the MCA is to enable people whose decision-making abilities are restricted by their mental health difficulties to enjoy autonomy and to make decisions, even where those decisions are unwise and wrong” (paragraph 49).
HHJ Burrows similarly found that Peter’s experiencing urges or making impulsive decisions did not prevent him from having capacity in relation to using contraception. “Dr Rippon appeared in her oral evidence to agree that the impediment to a decision here would be the overwhelming feelings of sexual desire rather than the product of a malfunctioning mind or brain. That would be enough to rule out a finding of incapacity under the MCA. However, there is no reason why, with planning, proper contraception cannot be put in place for Peter's partner, be that Jenny or anyone else. There is no reason to believe Peter cannot do this, even if he requires support with the planning and execution of the plan” (paragraph 51).
Analysis
The case is reminiscent of the recent decision of Poole J Re PN (Capacity: Sexual Relations and Disclosure) [2023] EWCOP 44 (featured in our November 2023 Mental Capacity Report). Both cases considered young men with histories of sexual offending, and looked at the question of whether impulsivity and sexual urges that may be difficult to control could cause a person to lack capacity. Both decisions found that the young men had capacity, and were cautious not to set the bar too high, even though it was possible the protected people may resume sexual offending.
The case is also notable for its treatment of residence capacity. However, with respect, we propose that an alternative solution might have avoided what otherwise becomes extremely complicated. If there is only one realistic option for the person’s residence, and the person is not suggesting absenting themselves from there, we might suggest that the correct approach is not to conclude that they have capacity to make that decision, but rather that it is simply not a question which falls to be decided at this point. See, by analogy, the approach taken by MacDonald J in GK & Anor v EE & Anor [2023] EWCOP 49. Had the question been whether Peter satisfied the (curious) capacity requirement for purposes of DoLS, the court would have been forced to reach a conclusion: at that point, we note that, in London Borough of Tower Hamlets v A & Anor [2020] EWCOP 21, Senior Judge Hilder found that a person who had capacity to choose between two settings in which her care needs would be met, but lacked capacity to make decisions in relation to her care needs, lacked capacity “in relation to the question whether or not he should be accommodated in the relevant hospital or care home for the purpose of being given the relevant care or treatment” for the purposes of the capacity requirement in DoLS. [2]
HHJ Burrows’ conclusions about Peter’s ability to manage his property and affairs also, again with respect, did cause us to raise our eyebrows, insofar as they appear to suggest that the role of an appointee is to support a person to make decisions about this issue. We would undoubtedly like this to be the case, but we suggest that this rather a rosy interpretation. It is far from clear what statutory duties are actually imposed upon appointees to comply with the MCA 2005, and it is also far from clear that appointees do in fact act in such a supportive fashion.
[1] Decided in August 2023, but only published in January 2024.
[2] Although we are duty bound to note that we do conceptually find it very difficult to think of situations where a person unable to process their care needs can truly make decisions about residence where their residence is being provided to meet those needs: a point made by Sir Mark Hedley in Re CMW [2021] EWCOP 50.
