A Local Authority v RS (by his Litigation Friend the Official Solicitor)
| Jurisdiction | England & Wales |
| Judge | Mr Justice MacDonald |
| Judgment Date | 22 June 2020 |
| Neutral Citation | [2020] EWCOP 29 |
| Docket Number | Case No: 13448414 |
| Date | 22 June 2020 |
| Court | Court of Protection |
[2020] EWCOP 29
IN THE COURT OF PROTECTION
Sitting Remotely
THE HONOURABLE Mr Justice MacDonald
Case No: 13448414
Mr Sam Karim QC (instructed by the Local Authority Solicitor) for the Applicant
Ms Sophia Roper (instructed by the MJC Law) for the Respondent
Hearing dates: 2 and 3 June 2020
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.
INTRODUCTION
In this matter the question before the court is whether RS, a man in his mid-twenties, has capacity to make the following decisions concerning his welfare:
i) To decide where he resides.
ii) To decide on the care he receives.
iii) To decide to have contact with others.
iv) To decide on accessing the Internet and social media.
If RS is found by the court to lack capacity to make one or more of these decisions, the court is invited by the local authority to go on to determine:
i) Whether it is in RS's best interests to reside at his current placement under the arrangements set out in the local authority's evidence.
ii) Whether it is in RS's best interests to receive care at his current placement pursuant to the arrangements set out in the local authority's evidence.
iii) Whether it is in RS's best interests to the subject of monitory by local authority and his care provider with respect to his contact with others for the purposes of assessment of risk.
The application under the Mental Capacity Act 2005 with respect to RS, dated 17 June 2019, is brought by the local authority, represented by Mr Sam Karim QC. The application is resisted on RS's behalf by the Official Solicitor, represented by Ms Sophia Roper of counsel At the outset of these proceedings, and having heard evidence from the jointly instructed expert Dr Lawson on the issue, I satisfied myself that RS continues to lack capacity to conduct these proceedings and that, accordingly, it remained appropriate for the Official Solicitor to act. Dr Lawson had originally opined that, in addition to having capacity in all of the decision making domains with which the court is concerned, RS had capacity to conduct these proceedings. However, having seen an attendance note dated 13 May 2020 and a statement dated 29 May 2020 provided by RS's solicitor, Dr Lawson changed his position in oral evidence. The local authority does not dispute that RS lacks capacity to conduct these proceedings. The local authority also seeks a declaration that it is lawful to deprive RS of his liberty, asserting that the regime applicable in RS's current placement amounts to a deprivation of liberty.
To determine the question of RS's capacity with respect to the decisions set out at paragraph 1 above I have had the benefit of reading the bundle of documentary evidence prepared for this hearing and of hearing oral evidence from Dr Lawson, the jointly instructed expert psychiatrist, and from Ms G, the allocated social worker for RS. At his request, I also had the opportunity to meet RS (via a remote connection) prior to the hearing and to hear his views during the course of the hearing itself. Finally, I have had the benefit of extensive and helpful written submissions from Mr Karim and Ms Roper.
During the course of the hearing the local authority also sought to advance an oral application for a declaration under the Mental Capacity Act 2005 concerning RS's capacity to manage his financial affairs and an oral application for relief under the Inherent Jurisdiction of the High Court should the court conclude that RS is capacitous with respect to the decisions in issue but nonetheless is a vulnerable adult. Having heard submissions I declined to deal with either of these applications. In respect of both applications no formal application had been issued on notice to the Official Solicitor by the local authority, with respect to both applications the jointly instructed expert had not been asked to assess capacity to manage finances or to address the question of RS's vulnerability to exploitation. Within this context, I was satisfied that it would not be appropriate to embark on determining the oral applications the local authority sought to advance at this hearing. In the circumstances, the issue before the court remains that articulated in paragraph 1 above.
BACKGROUND
RS is in his mid-twenties. He has a diagnosis of autism and mild learning disability. During the course of his childhood, RS was exposed to a number of difficult life events, including domestic and alcohol abuse, bereavement and inappropriate sexual activity. RS has been known to social services since 2012 and to mental health services prior to that. RS currently resides in a supported placement funded by the local authority.
RS has a sexual fetish, namely paraphilic infantilism, also referred to as ABDL (an acronym for adult baby / diaper lovers). This fetish involves adults role-playing a regression to an infant-like state, including the wearing of nappies. Such conduct is not, subject to the ordinary boundaries delineated by the criminal law, unlawful. The local authority contends however, and the Official Solicitor accepts that his fetish leads RS, in the exploration of his sexuality, to engage in risky behaviour, including contacting males on the Internet and thereafter going to meet them. The local authority relies on a number of instances of such alleged behaviour as evidence that RS lacks capacity to make decisions with respect to his contact with others. In particular:
i) On 26 February 2018 RS went to stay with a male in Scotland and revealed, some weeks later, that the man was a registered sex offender who had forced RS to engage in sex.
ii) Between April and May 2018 RS made contact with a number of men not previously known to him and expressed a wish to visit them. RS does not appeared to have visited any of those men but did purchase tickets with a view to doing so.
iii) In July 2018 RS went to stay with a male and engaged in further contact with unknown men.
iv) In August 2018 RS was the victim of alleged financial abuse, sending money to men that he had met online.
v) In January 2019 RS brought a sixteen year old young man back to his flat.
vi) On 14 February 2019 it was discovered that RS had been scammed resulting in him handing over a substantial amount of money to a couple via a fetish website, continuing to send money without receiving a service in return. RS reported the matter to the police and attempted to locate the couple but without success.
vii) On 27 April 2019 concerns were raised by support staff that RS was the subject of financial abuse online by persons he had not met. RS conceded he had paid money in return for pictures relating to his sexual fetish.
viii) On 15 June 2019 RS informed a support worker that he intended to go to the north of England for a week after messaging a person on Facebook. RS later confirmed that he went with the intention of doing ‘adult baby minding’ and had done that once.
ix) On 24 June 2019 RS was the subject of a safeguarding alert arising out of an allegation that he was involved in child sex offences with the male he was staying with in the north of England. RS was arrested but released without charge. The male with whom RS was staying was alleged to have been messaging a 13 year old girl.
x) On 31 July 2019 RS went to Darwen to stay with a male with whom he had stayed before. He gave support staff details of his whereabouts and returned later having been asked by the man to leave.
It will be noted that it has now been nearly a year since an incident relied on by the local authority as demonstrating that RS lacks capacity with respect to decisions about contact with others has taken place, albeit that the statement of the allocated social worker dated 20 August 2019 does make the unparticularised assertion that RS continues to meet men via the Internet in connection with his fetish. During cross-examination by Ms Roper, the allocated social worker Ms G stated that there had been some further incidents since the lockdown consequent upon the COVID-19 pandemic had come into force (which incidents related to financial conduct) but conceded that there had been a long gap between the last incident in July 2019 and these recent concerns about RS's management of his finances.
In 2014 a specialist psychological assessment was completed on RS by Dr Lesley Taylor, Chartered Clinical Psychologist, a copy of which is in the bundle. Dr Taylor noted that RS's “ability to offer information with absolute certainty means that he presents with a cloak of competence” and that RS “sometimes misunderstands what is happening around him and does not always understand the requirements of him.” However, it is clear from the report that Dr Taylor did not assess RS with a view to considering his capacity to make identified decisions within the criteria set out in the Mental Capacity Act 2005. Within this context, I note in particular that Dr Taylor came to the following conclusions:
“Throughout his childhood, RS has had to experience some extremely difficult life events, such as domestic violence, bereavement, loss and inappropriate sexual experiences. It is likely that he has coped with these events without appropriate care and direction and he may not have realised that some of his experiences have been abusive or inappropriate. As a result he may have an altered sense or benchmark for what is acceptable behaviour, especially masturbation, sexuality and in coping strategies. He may have been reliant on extreme family views, behaviour or the media as a guide to what is acceptable and as a result may be misinformed.”
And:
“RS understands sexual abuse as being...
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