HD (by the Official Solicitor as her Litigation Friend) v A County Council
| Jurisdiction | England & Wales |
| Judge | Mr Justice Cobb |
| Judgment Date | 23 February 2021 |
| Neutral Citation | [2021] EWCOP 15 |
| Court | Court of Protection |
| Docket Number | Case No: 13508128 |
| Date | 23 February 2021 |
[2021] EWCOP 15
IN THE COURT OF PROTECTION
IN THE MATTER OF SECTION 21A OF THE MENTAL CAPACITY ACT 2005
Royal Courts of Justice
Strand, London, WC2A 2LL
THE HONOURABLE Mr Justice Cobb
Case No: 13508128
John McKendrick QC and Mary-Rachel McCabe (instructed by Irwin Mitchell LLP) for the Applicant
Richard Alomo (instructed by Local Authority Solicitor) for the Respondent
Hearing date: 13 January 2021
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
THE HONOURABLE Mr Justice Cobb
This judgment was delivered in public. The judge has given leave for this version of the judgment to be published. A transparency order is in place.
Introduction
This application, which was issued on 2 September 2019, concerns one young woman in her late 20s, who I shall refer to as HD. She has a learning disability of at least mild severity, which it is accepted amounts to an impairment of, or disturbance in the functioning of the mind or brain 1. She also suffers from epilepsy and diabetes. She is represented in the proceedings by the Official Solicitor as her litigation friend. The Respondent to the application is the local authority (‘the Local Authority’) which has responsibility for her adult care services.
These proceedings began as an application by HD, pursuant to section 21A Mental Capacity Act 2005 (hereafter “ MCA 2005”), to challenge the deprivation of her liberty at her placement (‘Kingsbridge House’ 2). The proceedings have now expanded (per CC v KK and STCC [2012] EWCOP 2136 3) to include consideration of a number of issues related to HD's capacity and best interests. HD presents the case (per her application) on the basis that:
“It is appropriate for the Court of Protection to review the provisions and lawfulness of the authorisation and consider the applicant's best interests in relation to care, contact and residence to ascertain whether the best interests' requirement is met in this case”.
In relation to the deprivation of liberty, it is agreed that HD will, within a few days of the hearing, leave Kingsbridge House, and the standard authorisation will fall away; I need to say very little about this. The focus has therefore been drawn to other issues relevant to the way in which she lives her life.
Taking the written evidence as a whole, there is in fact no controversy that the diagnostic test under the MCA 2005 is met in this case, nor is there any challenge to the functional 4 test of her capacity:
i) to conduct the litigation,
ii) to make decisions about residence,
iii) to make decisions about support and care,
iv) to make decisions about contact with others,
v) to make decisions about finances,
vi) to make decisions about the use of social media and internet use.
As the hearing began, there was, however, a dispute as to whether HD has capacity to decide to engage in sexual relations. The Local Authority was of the view that the presumption of capacity 5 in this regard was not displaced. The Official Solicitor was more circumspect; she posited the view that, on the basis of the written evidence, the presumption of capacity in this regard was, or was likely to be, rebutted. The specific issue on which the Official Solicitor focused my attention was that HD did not appear to understand that a sexual partner “must in fact consent before and throughout the sexual activity” and further “must have capacity to consent to sexual activity” 6.
The court therefore heard oral evidence. This exercise helpfully clarified the issue beyond reasonable doubt, and by the conclusion of the hearing both parties shared (albeit reluctantly) the conclusion that HD does indeed currently lack capacity to decide to engage in sexual relations. This judgment sets out my views on this issue.
For the purposes of reaching my conclusions, I have read an extensive bundle of documents; I heard oral evidence from Miss A (the Local Authority's safeguarding co-ordinator), from Miss B (HD's social worker), and from Dr. Joshua Carritt-Baker, a jointly instructed Chartered Clinical Psychologist who had undertaken an assessment of HD over three meetings in 2020. HD was represented by Mr McKendrick QC and Miss McCabe; the Local Authority by Mr Alomo. I was greatly assisted by all counsel.
I was delighted to welcome HD to the hearing, and she remained throughout, listening to the evidence, discussion, and arguments.
Background facts
As I have indicated earlier, HD has a mildly severe learning disability, epilepsy, and Type 2 diabetes. She has long standing behavioural problems; at one time, it was thought that she may have a borderline personality disorder, but there is no clear evidence of this on the papers before me. She has a history of self-neglect. Until the spring of 2019, she lived at home with her parents.
Around March 2019 HD started seeing a man, Y, of whom her family did not approve; this was entirely understandable as he is described by HD's social worker as a “very high-risk sex offender”. Y had been made the subject of Sexual Harm Prevention Orders in 2009 and 2019; he is also said to be learning disabled. There were wider concerns expressed by the family and professionals regarding Y's physical and financial abuse of HD. HD's family ultimately concluded that she could not continue living at home whilst continuing her relationship with Y. HD denied any concerns about Y, or his status as a Registered Sex Offender.
Therefore, in April 2019, HD moved from her home to an emergency residential placement, and in the following month (May 2019), she moved to Kingsbridge House (a 24-hour supported residential placement) where she remains. While there, she has been the subject of assessment and monitoring. She requires prompting to undertake personal care; she is considered to be at serious risk were she to have liberty to come and go as she pleased.
Through a successful programme of education and assistance, HD has been supported to prepare to move on from Kingsbridge House. Shortly after the hearing, she was to move from Kingsbridge House, to her own ‘supported living’ 1-bed flat with full-time support staff; she has seen this property and is excited by the forthcoming move.
Materially for present purposes, HD dreads the notion of being single, and becomes “visibly distressed” 7 when this is raised with her as a possibility. She craves male relationships, and has sought adult male relationships in the community and on-line. She has expressed sexual interest in male agency care workers at Kingsbridge House. HD has a history of making what appear to be unfounded allegations of sexual assault, including rape, against men; she also has been known to share naked photographs of herself on the internet. These issues have been problematic for those responsible for her care and support.
HD remained in a relationship with Y until around the spring of 2020. They had sexual relations; HD made allegations that Y had sexually assaulted and raped her. Y was imprisoned for assault (unrelated to HD) and released in March 2020, he committed a further assault on a female and was recalled by probation and further imprisoned. HD nonetheless continued to discuss her intention to marry Y on his release from prison. She remained in contact with him when he was in prison by way of ‘love letters’ and weekly telephone calls. Fortunately, HD ended this relationship in or around May 2020. Y was understood to be released in December 2020.
HD is currently in a relationship with Z; he has a learning disability and lives with his mother. HD and Z speak most evenings on the phone, the current Covid-19 lockdown restrictions prevent them seeing each other in person. Staff at Kingsbridge House have at times listened in on these calls; the conversations are sometimes mildly sexual in content. HD wears a ring on her wedding finger and reports that Z gave it to her and asked her to wear it; she says they have discussed marriage. Her support plan describes him as her “partner”. HD has stated that she wishes to live with Z, and that when she is in her own flat she will want unsupervised (i.e., private) time with him.
HD currently is fitted with a contraceptive implant. There is some uncertainty about how this procedure was achieved in 2018 given her apparent lack of capacity to have been able to consent to it 8. I have not been invited to consider this point, but as the implant is due for replacement imminently, these issues may well soon arise for consideration.
Capacity to decide to engage in sexual relations: the current law
As is, I hope, apparent from my comments above, I have firmly borne in mind the ‘first principles’ set out in sections 1–4 MCA 2005 which are applicable in considering/determining capacity and best interests in the Court of Protection. A person must be assumed to have capacity unless it is established that she lacks capacity: section 1(2) MCA 2005. The burden of proof therefore lies on the party asserting that P does not have capacity. The standard of proof is the balance of probabilities: section 2(4) MCA 2005.
The law in relation specifically to sexual relations was recently clarified by the Court of Appeal in A Local Authority v JB [2020] EWCA Civ 735 (hereafter “ Re JB”). The decision of the Court of Appeal in Re JB marks an evolution in the Court of Protection's approach to this difficult issue. JB was a 36-year-old man with a complex diagnosis of autistic spectrum disorder and impaired cognition. He lived in a supported living placement with restrictions...
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