Re PN (Capacity: Sexual Relations and Disclosure)
This matter related to PN, a 34-year-old man who had diagnoses of a mild learning disability and autistic spectrum disorder. There was no dispute as to PN’s diagnoses or his lack of capacity to conduct proceedings, or to make decisions as to his residence, care, contact with others and use of the internet and social media. The issue before the court was whether PN had capacity in relation to three issues:
- to make decisions about engaging in sexual relations;
- disclosing information about the risk of sexual harm he posed to others; and
- about allowing the Local Authority to disclose information about the risk of sexual harm he posed to others.
The local authority heard evidence from forensic psychiatrist Dr Chris Ince, and PN’s social worker, Mr Curran (who gave evidence only in relation to the second and third domain). By the conclusion of the hearing, all three parties in the matter agreed that PN had capacity to take decisions in the three domains above for himself.
PN had a history of sexual offending, and the judgment states that it had been given “a very long list of incidents of concern stretching back to 2001 which includes multiple examples of sexual assault by unconsented-to touching, typically of women's breasts or legs” (paragraph 5). The judgment states that most of these acts were opportunistic, and there was no evidence that PN had ever committed rape or had sexual intercourse with consent. He had one police warning but no convictions. PN’s sexual interests related to adult women, not children. PN had a full-scale IQ of 69 and Dr Ince felt that where PN had been offered a range of interventions over a matter of years, he would not likely to “make substantive gains in terms of the internalisation of risk management and self-awareness of risk” (paragraph 4).
PN’s ability to make decisions regarding sex appears to have been considered over a period of years, by many professionals. The evidence appeared to be consistent that PN did understand what sexual assault and consent were, and what conduct was illegal. The primary issue was that PN continued to behave impulsively when he was in proximity to women. PN did accept that he had touched women without their consent in sexual manner, but appeared to minimise his conduct by saying that the incidents were not “serious” (paragraph 6(v)). In discussions with his social worker, PN stated that others might want to know about his history for their own protection.
Poole J summarised the evidence at paragraph 6(vii)-(x):
vii) In his oral evidence, Dr Ince was asked to analyse why, if as he confirmed, PN can understand, retain, and weigh the relevant information in relation to the decision to engage in sexual relations, including the relevant information in relation to consent, he nevertheless sexually assaults women. Dr Ince's view was that PN was able to use the relevant information but that he chose to touch women even though he knew they had not consented to him doing so. His impulse to touch women in this way was not rooted in his ASD. He was not generally impulsive – there is no evidence that he acts on impulse in other fields of activity. Dr Ince does not accept that PN is overwhelmed by impulse due to his impairments.
viii) Reports are that when PN is with his brother or with a member of staff whom he respects, he does not engage in sexual offending. This suggests that he is capable of suppressing his sexual impulses.
ix) After the most recent sexual assault, on 24 August 2023, PN admitted what he had done and told staff afterwards that he felt bad about his actions. This shows awareness both of the consequences of his actions and that he ought not to act as he did on that occasion.
x) Dr Ince's opinion is that even if the view were taken that PN is unable to use the relevant information about consent at a moment when he has an impulse to touch a woman sexually, that inability is not caused by his ASD and/or learning disability. His impulsive actions are not a manifestation of his impairments but are behaviours that stem from PN's character and outlook.
Poole J applied the test for capacity as set out by the Supreme Court in A Local Authority v JB  UKSC 52,  3 All ER 697, and considered other cases (in particular the judgment in Hull City Council v KF  EWCOP 33, in which he previously adopted a person-specific approach) where the court had applied a test for sexual capacity which was tailored to the individual circumstances of the person. Poole J considered that in JB:
10. […] Lord Stephens judgment appears to me to recognise that the relevant information may differ from case to case. He expressly held that in certain cases the approach should be person-specific and that the "reasonably foreseeable consequences of deciding one way or another may be different" . He gave the example that the risk of a sexually transmitted infection may not be part of the relevant information that has to be understood, retained, weighed or used if the circumstances of the case render that irrelevant. Hence, Lord Stephens' judgment establishes that there is no requirement that all of Baker LJ's relevant information must apply in every case. The relevant information will depend on P's circumstances, their sexual orientation, sexual practices and preferences, whether there is an identifiable person or persons with whom they are likely to have sexual relations, and what the characteristics are of that person or those persons.
Poole J also considered the ‘protection imperative’ post-JB, finding that:
11. […] there may be a natural desire to protect those with whom P might want to have sexual relations, in particular in cases where P has a history of sexual offending. Lord Stephens repeatedly refers to the MCA 2005 protecting not just P, but others – at , , and . However, it seems to me, although the issue of the consent of others to sexual relations has entered the list of relevant information, the Court of Protection must not allow the desire to protect others unduly to influence a clear-eyed assessment of P's capacity. The unpalatable truth is that some capacitous individuals commit sexual assault, even rape, but also have consensual sexual relations. An individual with learning disability, ASD, or other impairment, may act in the same way, but it is only if they lack capacity to make decisions about engaging in sexual relations that the Court of Protection may interfere. If P would otherwise have capacity, then the court should not allow its understandable desire to protect others to drive it to a finding that P lacks capacity, thereby depriving P of the right they would otherwise have to a sexual life. The Court of Protection should not assume the role or responsibilities of the criminal justice system. One of the core principles of the MCA 2005 is that "a person is not to be treated as unable to make a decision merely because he makes an unwise decision" – s1(4). Deciding to act in a way that might be a criminal offence would be an "unwise" decision. Such decisions might contribute to a determination of a lack of capacity, but P is not to be treated as unable to make a decision merely because they may make a decision to act in a way that might amount to a criminal offence.
In applying this framework to PN, Poole J considered that “[d]ue to his living arrangements, character, and impairments he is not, has never been, and is very unlikely to be involved in a relationship or even in an encounter where there is a prospect of the other person becoming pregnant or where there is a chance of either contracting a sexually transmitted infection. The decisions he will be making in the future are in relation to touching others. I cannot completely exclude the possibility that PN might find himself having to decide about engaging in sexual intercourse but in reality, paragraphs (1), (4) and (5) of Baker LJ's formulation of the relevant information are not likely to be relevant to PN's decision-making about sexual relations. Nevertheless, as it happens, the evidence is very clear that he has an understanding of and is able to retain, and weigh or use the relevant information within those paragraphs of Baker LJ's formulation” (paragraph 12).
Poole J similarly considered that there was no history of PN being propositioned to engage in sexual activity, and PN did not fixate on any particular person. The evidence was that PN did understand, retain and was able to use and weigh the bilateral nature of consent, and was able to do so even when he felt the impulse to touch a woman without her consent:
16. […] He chooses to surrender to the impulse but that does not mean that his ability to use the information is lost. To borrow a phrase used by Dr Ince during his oral evidence, PN knows that he should not touch, but thinks "Hang it! It is what I want to do." In any event, accepting as I do the expert opinion evidence of Dr Ince on this matter, I find that PN surrenders to his impulse because of his character and outlook not because of his impairments. His impairments do not cause him to lose his control in other fields of activity, or his sexual control in other settings. His sexual impulsivity is not a manifestation of his ASD and/or learning disability. There is no pattern of impulsivity due to his impairments of which his sexual offending is a part. When with his brother or others whose disapprobation he might want to avoid, he controls any impulses to sexually touch women. He disregards the need for consent but he remains able to use the information he retains, namely that the consent of the other person is necessary.
Poole J was mindful that PN might ultimately end up committing criminal offences, but emphasised that the court must make the decisions currently before it on the basis of the MCA. Poole J considered whether to have capacity, it was necessary for PN to understand, retain and use and weigh information about the likely repercussions for him of sexually assaulting people. Poole J noted that as a matter of fact, PN had had very few such repercussions, and he had “managed to avoid sexually assaulting others in circumstances where they or another person with them might react violently towards PN. I am quite satisfied, on the evidence provided to me, that PN understands and retains the information that there are liable to be such repercussions from his decisions” (paragraph 18).
Poole J considered the extent to which “the potentially harmful consequences to the other person of sexual assault or even rape should be part of the relevant information P must be able to understand, retain, and weigh or use in order to have capacity to make a decision to engage in sexual relations” (paragraph 19). Looking to JB, Poole J considered that “[t]he Supreme Court has determined that understanding of the necessity of consent is sufficient. If P is able to understand, retain, and weigh or use information that it is necessary for others to be able to consent, and to consent in fact to sexual relations with him, then the court need not enquire into whether P has the ability to understand or envisage the ramifications of initiating or continuing sexual relations without consent” (paragraph 19).
Poole J concluded that PN had the requisite capacity both to give consent to sexual relations and to initiate sexual activity.
In relation PN’s capacity to make decisions relating to disclosure of information, Poole J noted that PN would at times deny his history. However, the view of his social worker, who knew him well, was that PN was motivated by embarrassment and fear of getting into trouble. At more candid times, Poole J found that “PN does understand that he has a history of sexual offending which others might wish to know in order to protect themselves” (paragraph 22). Poole J queried the practicality of how disclosures of his offending history would be made – and identified that people with capacity might also struggle to decide when to share information about a history of offending. Poole J also noted that decisions about sharing information would need to be taken in the best interests of PN, rather than the best interests of those who might be protected from him. Poole J was also unclear the extent to which decisions about disclosures would be required.
24. […] …He has never been in a relationship, he has not, it appears, had intercourse, and he has not ever been accused trying to rape anyone or to persist with an assault after his initial sexual contact has been repelled. Decisions about disclosure of information about past behaviour to others are very complex. Many capacitous individuals would struggle with them. It is important not to allow consideration of capacity to make a complex decision on disclosure to deprive PN of autonomy in relation to his decisions to engage in sexual relations for which he does have capacity.
Poole J was keen to establish that his findings should not be taken as ‘guidance for future decision-makers,’ but set out that “for present purposes I assume that the relevant information will include the risks to others that arise from the previous offending, how the disclosure of information might be given so as to allow others to avoid or mitigate such risks and prevent P from committing offences which could have adverse consequences, and the reasonably foreseeable consequences of sharing or not sharing the information” (paragraph 25).
Poole J found that PN had the requisite capacity “to make decisions about sharing information about his offending history with others” (paragraph 26). PN had been clear about his opposition to the local authority’s sharing information on his offending history with others, even though he recognised that it would do so to keep himself and others safe.
Poole J finally considered whether the totality of the findings on capacity were consistent (in particular the finding that PN lacked capacity to make decisions about contact with others). He concluded that these findings were consistent, as while
28. […] PN understands sexual boundaries but he does not understand social boundaries. He sometimes stares at other people and he stares at women's breasts. He knows, as I have found, that he ought not to touch them without their consent. He retains that understanding, and can weigh or use the information even when the urge takes him to touch the other person. However, he does not have the same understanding in relation to staring at or speaking to others. He does not understand the foreseeable consequences of speaking offensively to others, but he does understand the foreseeable consequences of touching them without consent. His lack of understanding in relation to non-sexual contact with others is because of his impairments. That was the conclusion of Dr Ince. Mr Curran's evidence is consistent with that conclusion. Sexual boundaries are perhaps clearer and so more easily understood by PN even with his impairments, whereas social boundaries are less clear to him and are not understood by him because of his impairments.
Poole J noted that while there were “no particular issues about PN's past decisions about whether to spend time with specific people, such as his brother, but there is a concern that he might wish to have in person contact with someone he has "met" online. With PN, his inability to understand social boundaries because of his impairments, means that he cannot understand and weigh or use information about the positive or negative aspects of interacting with members of the public, or other people with whom he does not have a relationship. He cannot foresee the reasonable consequences of interacting with others with whom he has contact when he says offensive things to them or acts in an intimidatory manner” (paragraph 28). Poole J thus made a refinement to its previous contact capacity declaration, amending it to a finding that he lacks capacity “in relation to non-sexual contact with others” (paragraph 28).
Poole J concluded by noting the need for the court to make clear and coherent decisions for those caring for PN, while acknowledging that “[t]he more refined the decision-making under consideration, the more difficult it can be to delineate the boundaries between different kinds of decision-making and to implement practical care and support. Rather than seeking to identify yet more specific kinds of decision-making, it might be simpler and of more practical use to focus on the core decision-making areas, such as residence, care, contact, marriage, sexual relations, property and affairs, use of social media and the internet, and conduct of litigation, but to be astute to apply the principles involved in assessing capacity to the particular individual characteristics and circumstances of P” (paragraph 29).
The case is an interesting and careful consideration of sexual capacity post-JB. It appears that in making a finding that PN had capacity, the court and parties both put weight on PN’s ability to control his impulses in certain circumstances, and his ability to use and weigh up information about the consequences of offending behaviour. Poole J also repeatedly cautioned against setting the bar for capacity too high, and against succumbing to the ‘protection imperative.’ The judgment is one which recognises that inherent in autonomy is that people will sometimes use that freedom make bad decisions, or even decisions that harm others, and the Court of Protection must be cautious not to equate poor decisions with an inability to make those decisions.
Separately, it was also helpful that Poole J reiterated the need to approach questions of sexual capacity when they were before the Court of Protection by reference to the MCA 2005, and not by reference to the criminal law. In this regard, some may find useful this webinar on When P is an Offender, together with this article: What place has ‘capacity’ in the criminal law relating to sex post JB?