This case concerned an application by the local authority to the Court of Protection to consider H’s capacity in the following areas: residence (in ordinary accommodation, restriction regarding her care and support, contact with others (both adults and children), use of the internet and social media.
We thought that it makes for an interesting comparison to the decision in DY v A City Council & Anor [2022] EWCOP 51 where a man with a known risk of lack of control regarding his sexual urges was regarded as not lacking in capacity, and hence not able to be kept safe under a DoLS in his care home setting.
In her early childhood, H experienced considerable trauma, including parental neglect and severe abuse. In her mid-teens, in very distressing circumstances, she experienced the abrupt cessation of a long-term foster placement and the subsequent loss and reduction of contact with key members of her foster family.
As a result of her traumatic and abusive childhood, H was diagnosed as suffering from complex psychological and psychiatric challenges: global developmental delay, attention deficit hyperactivity disorder, executive dysfunction, developmental trauma disorder, and possibly emotionally unstable personality disorder. H also demonstrated traits of autism spectrum disorder, extremely disordered attachment, and highly disrupted emotional regulation which, when ‘dysregulated’, meant that H could be both a harm to herself and others.
Equally, as a consequence of the nature of abuse that she experienced, which disrupted her sexual template, H had expressed a sexual interest in pre-pubescent children and was found to be in possession of indecent images of minors on her laptop. H was deemed to present a risk of sexual harm to them, both in contact and online.
After five changes of placement, she was eventually moved to accommodation where she was settled and extremely supported by the staff. We think it is clear that this was not a care home, because there is no reference to DoLS, such that the regime for management of the service user must have been a welfare order.
For three years, H’s liberty had been restricted, both within and outside the home. Internal CCTV had been installed, save for in the bedroom and bathroom. Also, she was supervised on a 2:1 ratio, checked on every hour, and was restricted from using certain items that could be dangerous (e.g., knives). H progressed well under this restrictive regime – a regime with which she was remarkably complaint – with a significant reduction in the incidents of violent behaviour. H had made a level of progress which has surprised and delighted everybody.
When H became dysregulated, she was unable to take capacitous decisions. Thus, she was deemed to have “fluctuating capacity”, which presented challenges for the court when trying to generally assess her capacity.
In relation to her sexual thoughts and fantasies, the court found that there were positive indicators illustrating progress and change in H, such as her ability to speak more openly about her issues. Additionally, H’s commitment to the various activities arranged, which provided her with techniques and strategies to prevent her thinking in sexual terms about under-age children, was seen by the court as reflective of H’s resolve to change and achieve a more stable life for herself. Nevertheless, a psychiatrist’s assessment of H in August 2022 held that H presented “an extremely high risk of sexual offending against children. If she [was] not continuously supervised, it [was] almost inevitable that she [would] commit sexual offences against children.” The judge considered that this risk was ongoing and high, despite H’s signs of progress.
In respect of H’s capacity to take decisions about her residence, the court noted that H could do this in a capacitous fashion when calm and engaged but was unable to achieve this at times of emotional dysregulation. Additionally, H was identified as presenting “all the traits of development trauma disorder (DTD)”, a feature of which was “executive dysfunction” that was “impaired at times of distress or heightened emotions” and “affected impulse and behavioural control, planning, [and] abstract thinking.”
The judge found H to be articulate, well-mannered and funny. With her solicitor’s prompting questions, H covered a broad range of topics with what the judge considered to be a high level of candour.
The evidence was that H does not like to be perceived as incapacitous. The judge thought that that was entirely natural reaction and understandable. H expressed views on these key issues of residence and support which were superficially consonant with an understanding of the issues involved. H accepted this rigorous regime as linked to her welfare and acquiesced to it. However, Dr S remained very clear that H had not yet achieved capacity, although she considered that H was progressing towards it.
In each of the spheres of capacity that were analysed i.e., residence, care/support, contact with others, and use of social media and internet, Hayden J agreed with the psychiatrist that the presumption of capacity – pursuant to s1(2) of the Mental Capacity Act 2005 – was rebutted by cogent evidence.
H was seen to have some insight into her behaviour and her co-operation with the plans for her care was seen as giving rise “for optimism for the future.” Indeed, the philosophy of her care plan, which would be amended in light of the judgment, was geared towards ‘enabling H to develop her own autonomy.’
The judge took the opportunity to put all the principles in one judgment, so this case really should be a ‘Go To’ judgment for those under pressure.
Finally, the judge noted that H’s privacy and her safety – given the evidence that she presented a sexual risk to children – might have been compromised if her identity was in the public domain. Thus, when balancing H’s article 8 rights with those in article 10 and the legitimate public interest, the judge found that the rights and interests fell decidedly in favour of the former. As a result, the judge only permitted accredited journalists and legal bloggers to remain in court and prevented any reporting of the case until the conclusion of the hearing.
Comment:
The judge understood the care plan to be ‘profoundly restrictive’ and ‘intolerable to most people’ and likely to lead to episodes of just such dysregulation. Hayden J ultimately found that despite the progress the individual showed, her capacity was clearly prone to fluctuating, and quite often. Despite her compliance with her care plan and her understanding of her issues, a risk remained to the public and to the individual herself in the moments where she was dysregulated. This was sufficient to rebut the presumption of capacity, whereas it was not in the DY case.
Thus, the case illustrates that even in cases where liberty is being restricted to such a high degree, if the probability exists that an individual could be a risk to the public and themselves in certain predictably likely situations then the court will be prone to ignoring one’s capacity outside those scenarios. This outcome is interesting in comparison with the judge’s fine words: “Paternalism has no place; protection of individual autonomy is the magnetic north of this court.”
Should occasional moments of incapacity – driven, perhaps by frustration at the regime itself, warrant a continuous status of lack of capacity, and the consequential inability to experience autonomy over many aspects of one’s life? To H it might seem she is being punished for not being able to evidence continuous self-control. In contrast, DY’s grasp of and ability to express how difficult it was for him to predict how he would react to triggers, having been under benign control for so long, if not under a DoLS was taken as indicative of his having matured, despite the risk to the public that he had no rational or practical strategies to offer up to manage these.
In this way, it might be said that the court has risked weakening the presumption of capacity in 1(2) of the Mental Capacity Act 2005, for those who suffer from complex psychological and psychiatric challenges to a mere starting point – and that this risks holding those subject to the MCA to an unattainable standard.
However, read in full, it is significant, we think that the judge said this: “The philosophy of the care plan, which is being amended in light of the evidence, is to focus upon developing H’s sense of agency, to use the psychiatrist’s words. In other words, the plan is geared to enabling H to develop her own autonomy.” It may be that DY was just further along that road than H, making the cases sit much better together.