Lancashire County Council v (1) BC (by her litigation friend, the Official Solicitor), (2) EF

Summary

In this case, Poole J was concerned with a woman, BC, in her early 30s who was born into and brought up in an ultra-orthodox religious community. BC began her relationship with EF, who also came from the same ultra-orthodox community, some ten years ago. The key issues for Poole J to decide were whether BC had capacity to make decisions about residence and engagement in sexual relations.

BC was diagnosed with “autism spectrum condition, complex PTSD, cerebral palsy, partial deafness, R[a]ynard’s deafness, R[a]ynard’s syndrome, diplegia and agoraphobia.” An independent expert confirmed her agreement with the diagnosis of autism spectrum condition and complex PTSD, which, for her, was characterised by hypervigilance, periods of dissociation, emotional dysregulation and thoughts of suicide and self-harm. The expert concluded that:

(i) BC was unable to make decisions about this litigation or to conduct proceedings;

(ii) BC had capacity to make decisions about residence, provided that the options presented to her are capable of meeting her care and support needs. She lacked capacity to make decisions about her care and support;

(iii) BC may gain capacity over time in relation to decisions about her care and support, and that capacity should be re-assessed in all areas in six months’ time;

(iv) BC lacked capacity to make decisions about contact with others;

(v) BC had capacity to engage in sexual relations, however she might lose this capacity in a dissociative state;

(vi) BC had capacity to manage her property and financial affairs.

In her oral evidence, the expert said that BC was likely to dissociate in any and all sexual encounters.

Poole J set out the legal framework for assessing capacity under the Mental Capacity Act 2005 and the relevant case law. In relation to capacity to engage in sexual relations, Poole J set out the relevant passages from the Supreme Court’s decision in A Local Authority v JB [2021] UKSC 52. In relation to residence, care and contact, Poole J drew on helpful and well-established guidance in LBX v K [2013] EWHC 3230. In relation to all of the domains, Poole J emphasised that capacity is decision-specific and must be assessed in relation to the specific decision at the time the decision needs to be made.

In conclusion, Poole J accepted that the presumption of capacity was not displaced in relation to BC’s decision-making about her property and financial affairs. His Lordship also agreed with the parties that it was established by the evidence that BC lacked capacity to conduct proceedings, and to make decisions about her care and support and contact with others. However, his Lordship also wished to “sound a note of caution” in relation to contact:

BC has decisions to make about contact with carers and staff at GG or, if she were to leave, elsewhere; contact with others in the community; about contact with her family; and about contact with EF. With regard to contact with others, I believe that, without dividing up the area of decision-making too finely, a declaration of incapacity should not overreach. In my judgement, the evidence does not support a finding that BC lacks capacity to make decisions about contact with others which do not engage concerns about her safety or vulnerability to abuse from others. Dr Camden-Smith’s opinion about BC’s capacity to decide on contact with others was grounded on BC’s “inability to identify when she is not safe from others, and her inability to understand abuse.” Thus, it is not proved that BC lacks capacity to decide on contact with others when there are no such issues, for example, going into a shop to buy an item.

Thus, in relation to contact, Poole J was only willing to make interim declarations of incapacity with a view to her capacity being re-assessed in the future. Furthermore, he also limited his declarations of incapacity to contact with others where such contact might involve issues of her safety and vulnerability to abuse from others.

In relation to residence, Poole J found that the options for residence were inextricably linked to decisions about care and support and contact with others. BC could not weigh or use for herself information relevant to decisions about residence such as who would be living there, what the contact arrangements would be at any placement and what care and support would be provided. Thus Poole J found that BC lacked capacity to make decisions about her residence.

Regarding sexual relations, Poole J recounted that BC generally had capacity in relation to engaging in sexual relations but was liable to lose capacity in the moment due to dissociation. His Lordship considered the case law in relation to fluctuating capacity. He noted that, in the present case, the decision that BC faced regarding sexual relations was person-specific: it involved her partner, EF. She had not had sexual relations with anyone else for a decade or so and had not expressed any wish to have sexual relations with anyone else. Poole J held:

This is not a straightforward case but, in my judgement, it has not been established that BC is unable to decide to engage in sexual relations including with EF even though, at present, she lacks capacity to decide on contact with him.

Although Poole J accepted that BC would remain at risk of losing capacity in the moment of sexual relations if she were to dissociate, that risk was not sufficient ground to rebut the presumption of capacity. Furthermore, although his Lordship had not received any evidence or submissions on BC’s best interests, he stated that it was “clear that a TZ style plan would support and protect her until she is in a position to make decisions about contact with EF for herself”.

Comment

Whilst not setting down any new principles or guidance, this is an interesting case for considering the various “domains” when it comes to mental capacity and, in particular, their interaction with each other.

On the one hand, the judge took a somewhat broad and intersectional approach to the issue of residence, finding that it was so intertwined with issues of care and support and contact with others (in respect of which BC lacked capacity), that BC also lacked capacity to make decisions about her residence. Indeed, counsel for BC had argued that it would not be practicable for decision-makers to divorce decisions about residence from decisions about care and support and contact with others. Counsel for the Official Solicitor sought clarification on this point following circulation of the draft judgment as the independent expert had advised that, if BC were presented with two placements which met her assessed needs, she could choose between them. Poole J put it this way:

I accept that if all matters concerning care, support and contact with others… were made on her behalf, there may be residual matters concerning residence which BC could decide for herself, but so much of the information relevant to decision-making on residence would be beyond her ability to understand, retain and weigh or use, that I do not believe it would be correct to call what was left, an ability to make decisions about residence. As I have already noted, it is unhelpful to identify “the matter” for decision too narrowly.

On the other hand, Poole J raised the apparent incongruence between BC’s capacity in relation to contact with EF and capacity to engage in sexual relations:

It is not disputed that this inability includes an inability to make decisions about contact with EF. How then could BC have capacity to decide to engage in sexual relations with EF? In Hull CC v KF [2022] EWCOP 33 I observed that it was difficult to see how a person who lacks capacity to decide to have contact with a specific person could have capacity to decide to engage in sexual relations with that person

Ultimately, the correct approach to be taken has to be carefully informed by a close appraisal of the factual circumstances and the degree to which there is overlap. As Poole J recognised:

The apparent paradox that troubled me in Hull CC v KF (above) arises from (i) the comparatively low bar that is set for capacity to engage in sexual relations which is itself a product of the prohibition on making best interest decisions about engagement in sexual relations; and (ii) the different information relevant to decisions about contact and decisions about engagement in sexual relations. In some cases such as Hull CC v KF, there will be such a large overlap of the reasonably foreseeable consequences of making a decision or not making a decision about contact and making or not making a decision about engaging in sexual relations that it would be inconsistent to find that P had capacity to engage in sexual relations with a specific person but not to decide to have contact with them. In other situations a person may be unable to make decisions about contact but able to decide to engage in sexual relations with the same person. Here, for example, concerns have been raised about BC’s ability to understand and weigh or use information about financial control and emotional abuse but she may simultaneously be able to understand and weigh or use all relevant information concerning engagement in sexual relations.