https://caselaw.nationalarchives.gov.uk/ewcop/2023/44
Summary
This judgment concerned whether PN – a man living in the care of Durham County Council – had the capacity to make decisions about engagement in sexual relations. PN had significant care needs as a result of his mild learning disability and autistic spectrum disorder (ASD). He requires support in relation to many activities of daily living and was receiving one to one care 24 hours a day. His ASD limits his ability to empathise and presents as persistent difficulties with social communication. Previous declarations had been made that he lacks capacity to make decisions about his residence, care, contact with others, and use of social media and the internet.
The issues in this hearing were (1) whether he lacked capacity to make decisions about engaging in sexual relations; (2) whether he lacked capacity to consent to disclosing information about the risk of sexual harm he posed to others, and (3) and whether he lacked capacity to consent to 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 in relation to the second and third issue only.
After hearing evidence, Counsel for all three parties submitted that PN had capacity to make decisions with regard to all three issues and Poole J agreed, but noted that the determination of PN”s capacity in relation to decisions about engagement in sexual relations was not straightforward.
PN has a history of offending behaviour, some of it violent, and a long history of reported sexual offending, though PN has largely escaped the attentions of the criminal justice system other than a warning in 2006 for sexual assault. The judge was presented with a long list of episodes dating back to 2001 which included multiple examples of sexual assault by unwanted touching, typically of women’s breasts or legs. The assaults were described by the judge as ‘opportunistic’, and there was no evidence that P had ever committed rape or had sexual intercourse with consent. The most recent incident occurred in August 2023, where PN grabbed the breasts and leg of a female carer while on an outing.
PN’s ability to make decisions about sexual relations appeared to have been considered over many years by a number of different professionals, but PN seemed to have a consistent understanding of what sexual assault and consent were, and what conduct was illegal. The main issue was that despite this apparent understanding, PN continued to behave impulsively around women. He accepted that he had touched women without their consent but said that the incidents were ‘not serious’ [para. 6]. PN also said to his social worker Mr Curran that other people might want to know about his behaviour for their own protection, suggesting that PN grasped that it posed a risk of sexual harm to others.
Legal Framework
Poole J cited the Supreme Court’s decision in A Local Authority v JB [2021] UKSC 52, [2022] 3 All ER 697 (“JB”) and the Court of Appeal judgement of Baker J in the same case, [2020] EWCA Civ 735, as providing a ‘definitive guide’ to applying the test for capacity to make decisions to engage in sexual relations.
Poole J stated at para. 10 that in JB:
[…] 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” [72]. 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” and warnings from the Court that the imperative should not drive the capacity assessment towards an outcome that protects P’s safety rather than their autonomy. Poole J found that there may be a ‘natural desire’ to protect those with whom P might want to have sexual relations. However, some capacitous individuals might commit sexual assault or rape, but also have consensual sexual relations.
The Court of Protection may interfere only where an individual lacks capacity to make decisions about engaging in sexual relations. If P would otherwise have capacity, then the court should not allow the desire to protect others to drive a finding that P lacks capacity.
Poole J distilled this issue as follows:
“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.”
Capacity issue 1 – make decisions about engaging in sexual relations
Applying this analytical framework to PN and his circumstances, Poole J noted that PN had no history of being propositioned to engage in sexual activity and did not fixate on any particular person. He continued that 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.’
In light of these facts, Poole J argued that some of the factors identified by Lord Justice Baker and subsequently approved by Lord Stephens in JB did not apply, but nevertheless the evidence was clear in showing PN has an understanding of and is able to retain, and weigh or use the relevant information within that formulation, namely an understanding of the bilateral nature of consent.
Poole J, in accepting the expert evidence of Dr Ince on PN’s impulsive behaviour, found that PN surrenders to his impulses ‘because of his character and outlook not because of his impairments’ and also noted that ‘his impairments do not cause him to lose his control in other fields of activity, or his sexual control in other settings.’ (para.16). Poole J and Dr Ince were mindful of the fact that PN could be found capable of committing criminal offences if it found that PN chooses to disregard the consent of others to sexual touching, rather than being unable to understand, retain and use information that consent is necessary, but the judge restated that his role was to make decisions on capacity according to the evidence and applying the tests within the MCA 2005 (para.17).
The judge was also satisfied that PN understands and retains the information that there are likely serious repercussions from his decisions to engage in non-consensual sexual touching, as shown by the fact that he did not engage in such behaviour around authority figures like his older brother. Poole J concluded that PN had the necessary capacity to give consent to sexual relations and to initiate sexual activity.
Capacity issue 2 – consent to disclosing information about the risk of sexual harm posed to others
The judge then turned to the questions of disclosing the risk of sexual harm PN poses to others. Poole J noted that at times PN would deny his past behaviour, but his social worker, with whom PN had a close relationship, attributed this to embarrassment and a desire to avoid getting into trouble. PN understood that he has a history of sexual offending which others might wish to know about.
Poole J also queried the practicalities of how disclosures of PN’s offending history might be made, and also pointed out that people with capacity who had histories of sexual offending might also struggle with deciding when and how to share that information with others. He also reiterated the limits of the ‘protection imperative’, and that any decision about sharing information would need to be taken with PN’s interests at heart, not those to whom his behaviour might pose a risk. (para.23).
Poole J took care to note that his findings should not ‘be wrongly taken as guidance for future decision-makers’ but set out his assumptions 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). On that basis, Poole J was satisfied that PN has capacity to make decisions about sharing information about his offending history with others, emphasising that ‘the bar must not be set too high’ and that while it was ‘[d]esirable’ to protect others from the risk PN presents, Poole J ‘could not allow that to detract from a clear-eyed application of the statute.’’ (para. 26).
Capacity Issue 3 – capacity to consent to allowing the local authority to disclose information about the risk of sexual harm posed to others
PN was opposed to the Local Authority disclosing his offending history. Poole J noted that PN understood why the Local Authority might wish to do so, namely to protect others and to ‘cover their own backs’ and that PN recognised the consequences of the Local Authority doing so. Poole J found the assessment of PN’s social worker to be ‘extremely helpful’ and cited with approval Mr Curran’s assessment conclusion:
“PN was able to demonstrate that he understood the information relevant to the decision [to allow the local authority to share information with others] including his history of offending, that disclosing this information would likely lead to a breakdown in any potential relationship and that professionals may share this information on his behalf. PN was able to retain this information and use it to weigh up potential options. He was then able to communicate this decision verbally.
Poole J agreed with this conclusion and found that PN has capacity to make this decision.
Poole J then turned to the question of whether these determinations were consistent with other determinations in relation to PN’s capacity to make decision, in particular the previous determination by the Court that he does not have capacity to make decisions about contact with others.
On the facts of the case, Poole J was satisfied that there was no inconsistency: PN understands sexual boundaries but he does not understand social boundaries. He does retain the understanding that consent is required to touch another person and can weigh or use that information even when the urge takes him to touch another person, but 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 does understand the consequences of touching them without consent. Sexual boundaries are, suggested Poole J, clearer than social boundaries to PN, which are not understood fully because of his impairments.
The relevant information in respect of contact, which coloured Poole J’s consideration of the consistency of various determinations, was set out by Theis J in LBX v K, L and M [2013] EWHC 3232 (Fam). Poole J concluded this section of his judgement with the observation that a refinement should be made to the previous finding that PN lacks capacity to make decisions about contact with others, namely that his lack of capacity is in relation to non-sexual contact with others.
Poole J also considered the outcome if he found that PN lacks capacity in relation either to disclosing information about his offending history, or to allowing the Local Authority to disclose that information and wondered “what practical steps could be taken to share information with others”. The judge also was concerned that it is not necessary or appropriate for the court even to consider the second and third decisions at issue. Having determined the first issue, it did not appear, borrowing the wording of Lord Stephens, “necessary to consider whether he has capacity to make decisions about sharing information relevant to consent with others. Indeed, as mentioned, earlier in this summary, Poole J was hesitant to set out the relevant information regarding the second and third decisions lest they wrongly be taken as guidance for future decision-makers.
Observations
This case is notable in respect of the weight placed by the Court and parties on PN’s ability to control his impulses in certain circumstances, and his ability to use and weigh up information about the consequences of his behaviour.
Poole J’s careful analysis also emphasised ensuring – where possible – an individual’s autonomy and not simply succumbing to the understandable impulse to ensure public protection. The judgment recognised that people will sometimes freely choose to behave in ways which are not in their best interests, or in the interests of others, and freedom to choose means occasionally the freedom to make bad or even harmful decisions. Bad decisions should not be conflated with an inability to make those decisions.
Poole J also emphases that the 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.
He suggested that rather than seeking to identify specific types of decision-making, it may be simpler to and more practically useful to focus on core decision-making areas such as residence, care, contact, marriage, or sexual relations, while also applying the principles involved in assessing capacity to an individual’s characteristics and circumstances.
Comment
This corresponds with training that our trainers have been delivering for over 15 years since the Mental Capacity Act came in, that in the end capacity will come down to providers doing the day-to-day thinking and care planners – public officers acting under statute – needing to the Big Six, to do their jobs properly and lawfully compliantly. These we see as follows:
- Property and finance decisions, because of Best Interests not extending to decisions in that regard and covering only the question of where one could well live and with whom
- Self-harm – through any source of risk including gluten, sugar, alcohol and drugs – because of article 8 and autonomy and views of relatives potentially with deputyship
- Medication – because of the need to administer it covertly impinging on article 8
- Wandering or moving around the community unescorted as opposed to purposeful absconding – because of article 5 and
- The internet, online and physical contact and sex – because of articles 5 and 8
Information sharing – because of article 8 and the fact that confidentiality is a private law issue to which MCA thinking could well be a defence