A Local Authority v H
| Jurisdiction | England & Wales |
| Judge | The Hon. Mr. Justice Hedley |
| Judgment Date | 27 January 2012 |
| Neutral Citation | [2012] EWHC 49 (COP) |
| Date | 27 January 2012 |
| Court | Court of Protection |
| Docket Number | Case No: COP11895254 |
[2012] EWHC 49 (COP)
IN THE COURT OF PROTECTION
SITTING AT LEEDS
CIVIL JUSTICE HEARING CENTRE
Royal Courts of Justice
Strand, London, WC2A 2LL
The Hon. Mr. Justice Hedley
Case No: COP11895254
Ms Nicola Greaney (instructed by Weightmans LLP) for the Applicant
Ms Jenni Richards, Q.C. (instructed by Hogans Solcitors) for the Respondent
Hearing dates: 15 th December 2011
On 15 December 2011 I made an order declaring H's incapacity in many respects and making best interests declarations as to her future care. In particular I made an order declaring that H lacked capacity to consent to sexual relations and a consequential order to protect her best interests which was very restrictive and undoubtedly amounts to the deprivation of liberty. In those circumstances I reserved my reasons for making these orders with a view to handing them down without the need for attendance of any party. This I now do.
Moreover, having regard to the nature of the findings and restrictions consequent upon them, I think it right to deliver these reasons in open court. This judgment has been anonymised accordingly. It will, however, remain a contempt of court for anything to be published that might reasonably be expected to lead to the identification of H.
It is important to set the context of these proceedings and it is to be found in the history of H herself. The records available are very extensive and I therefore propose to be selective with the intention of both producing a balanced picture and including only those aspects that bear relevantly upon the issue in question.
H is aged 29. She was born in a northern city and lived with her parents and younger brother. She attended a special school from the age of 5 until 17 when she transferred to a community college until 19. She was by then living in the area of the current local authority. Her parents had separated and she was living at home with her father and younger brother. Sadly her father died in 2007; in the meantime her mother remarried. She retains, and wishes to retain, links with her family. Since her father's death, H has led a rather itinerant lifestyle until admission in August 2009 to a psychiatric hospital initially as an informal patient.
Dr. Xenitidis, a consultant psychiatrist, was jointly instructed to provide an expert opinion on capacity. He confirmed the working diagnoses in relation to H: mild learning difficulties and atypical autism with a full scale IQ of 64. Clearly those conditions have been (and will continue to be) lifelong though there remain prospects of improvement in function.
H's history demonstrates both a very early and a very deep degree of sexualisation. Her family and social services records (both authorities and adult as well as children services) bear powerful and consistent testimony to this. She had been consecutively on the child protection register of the authorities as well as there being extensive entries in the adult records of the current authority. Whilst some detail must be set out in the run up to the hospital admission in 2009, it is not necessary to recite in public the detailed history on which these general observations are based. It is set out in detail in the chronology.
Two comments do, however, require to be made. The first is that for all the concerns that were repeatedly and consistently expressed from about 1990 until 2009, it was never judged necessary for a formal statutory intervention in her life to take place. With the benefit of hindsight that may seem surprising though when each individual incident is examined and her age and the support available are considered, one can see why. What in fact happened might reasonably have done so. The second is this: given the very restrictive regime now authorised, it is essential that the authority remain pro-active. As will appear herein, the local authority has satisfied me that that would be so though that may not always have been the case.
It is now therefore necessary to come to 2009. H was then 27; she had learning difficulties, was highly sexualised and, given her autistic condition, was highly vulnerable. At least one man had been convicted in respect of a sexual offence against her—attempted rape in 2003—and others were engaging in sexual behaviour which, whilst consented to by her, could have been seen as unconventional and exploitative. In her attempts to live independently she had incurred debts in excess of £10,000 and she had suffered some harassment in her attempts at work. Matters came to a head when she sought refuge in the home of a man called R.
Now R was not a man with an enviable background but he clearly acted quickly and responsibly to see that H's interests were safeguarded. He drew the attention of the authorities to H's sexual activities, vulnerability and disinhibition. This resulted in a domiciliary visit by a psychiatrist. The local authority records confirm this –
"During this interview she gave an extensive, if confused, history of the willingness to have sex with anyone who asked her including strangers. She indicated that she was engaging in sex with multiple partners at the same time, including a group of much older men, considered that she was bi-sexual, and had engaged with oral and anal sex and that she had attempted to have sex with dog".
Subsequent enquiries revealed that she saw herself as obligated to submit to that which was in fact rape. She was admitted to hospital on the day of that domiciliary visit.
In the event she remained in hospital until August 2011. Her behaviour in hospital often displayed highly sexualised and bizarre features. Her admission became compulsory under Section 3 Mental Health Act 1983 on 20 th November 2009 and thereafter authorisation was renewed until her ultimate discharge. Attempts were made both to ascertain what she understood about sexual relations and to give some education in issues of self protection. It is fair to say that those entrusted with her care found her case perplexing and on 16 th October 2010 proceedings were issued in the Court of Protection. The hearing on 15 th December 2011 was hoped to be a final hearing.
A number of issues were obvious from the evidence which itself provided clear and, and in the event, uncontroversial answers. H lacks capacity to litigate. Her interests have been attended to throughout the proceedings by the Official Solicitor who in turn has instructed experienced local solicitors. H lacks capacity to determine her residence, her care and support arrangements, contact and her finances. Those matters require no further elucidation in this judgment. I have also found that she lacks capacity to consent to sexual relations but that it is not necessary to make declarations as to capacity to marry or deal with contraception. Those matters do require further treatment in this judgment. The order contains a number of detailed provisions relating to the appointment of a financial deputy, disclosure and costs that need no further comment here.
It is, however, necessary to set out the current care and living arrangements for H because they follow on from and depend on the court's conclusions about capacity to consent to sexual relations. It is intended that these arrangements in any event should continue during the better part of next year.
H lives in accommodation provided by a private agency in contract with the local authority. There are some three other residents living in the same building. At least 1:1 supervision is provided during the day and waking supervision is required overnight. H is supervised on a 1:1 basis at all times whether in or out of the property and she is not free to leave it on any other basis. Those who may enter the property are also carefully regulated. It is not that H does not have much to do, (she has a number of outside activities including two part time jobs) but that she cannot do it without 1:1 supervision. This highly regulated regime evokes two observations: first, that it clearly constitutes a deprivation of liberty and indeed a DOLS standard authorisation under Schedule A1 of the Mental Capacity Act 2005 is in force and its renewal will be sought; and secondly, the purpose of these restrictions is to prevent H from engaging in sexual relations (which she would otherwise willingly do) because she does not have capacity to consent and they will be potentially exploitative and damaging.
These are considerable incursions into personal autonomy and freedom. They depend on a best interests judgment as to her needs and have their legal foundation in a finding of incapacity to consent to sexual relations. All parties accept that if the legal foundation is secure, the best interests judgment is sound. It will be subject to a major review by the local authority in September and by the court in November 2012 both as to capacity and best interests. Although the best interests regime is highly restricted, a reading of even a cursory history set out in this judgment renders it justifiable at least on the present basis whilst further learning takes place on H's part both as to sexual and personal safety and as to life skills generally. It is to the soundness of the legal foundation that I must now turn.
The principal source of the law is the Mental Capacity Act 2005. Thereunder, there is a presumption in favour of capacity (Section 1(2)) and a prohibition against inferring incapacity from unwise decisions (Section 1(4)) as well as a requirement to act in the best interests (Section 1(5)) and by Section 1(6) to...
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