Re AA (Court of Protection: Capacity to Consent to Sexual Practices) v A Local Authority

JurisdictionEngland & Wales
JudgeMr Justice Keehan
Judgment Date15 December 2020
Neutral Citation[2020] EWCOP 66
Docket NumberCase No: 13408216
CourtCourt of Protection
Date15 December 2020

[2020] EWCOP 66

IN THE COURT OF PROTECTION

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

Mr Justice Keehan

Case No: 13408216

Re AA (Court of Protection: Capacity to Consent to Sexual Practices)
Between:
A Local Authority
Applicant
and
AA (By his litigation friend, the Official Solicitor)
Respondent

Mr N Allen (instructed by Local Authority) for the Applicant

Mr J McKendrick QC (instructed by MJC Law) for the Respondent

Hearing dates: 27th November 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.

Mr Justice Keehan

This judgment was delivered in private. The judge has given leave for this version of the judgment to be published on condition that (irrespective of what is contained in the judgment) in any published version of the judgment the anonymity of the children and members of their family must be strictly preserved. All persons, including representatives of the media, must ensure that this condition is strictly complied with. Failure to do so will be a contempt of court.

Mr Justice Keehan

The Hon

Introduction

1

I am concerned with AA, a 19 year old man, who has been diagnosed as having autism (‘ASD’) and Asperger's Syndrome. He has interests relating to certain sexual practices including autoerotic asphyxiation (‘AEA’). He has posted material about himself on the dark web, advertising his wish to be a submissive partner and his desire to be kidnapped and raped.

2

The issues for me to determine are:

i) AA's capacity to conduct proceedings and make decisions regarding AEA, internet and social media, consent to sexual relations and contact with others;

ii) AA's best interests in those domains where he lacks capacity to decide; and

iii) Whether I should authorise AA's deprivation of liberty.

The Law

3

In the case of A Local Authority v. TZ (No 2) [2014] EWCOP 973 Baker J, as he then was, encapsulated the principles to be applied when determining whether a person had or lacked capacity to make a decision in the following terms:

“19. Section 1 of MCA stipulates three principles relating to capacity.

20. First, a person must be assumed to have capacity unless it is established that he lacks capacity: s. 1(2). The burden of proof therefore lies on the party asserting that P does not have capacity. In this case, therefore, the burden of proof lies on the local authority to prove that TZ lacks the capacities identified above. The standard of proof is the balance of probabilities: s. 2(4).

21. Secondly, a person is not to be treated as unable to make a decision unless all practicable steps to help him to do so have been taken without success: s. 1(3). The Mental Capacity Act 2005 Code of Practice stresses in paragraph 4.16 that “it is important not to assess someone's understanding before they have been given relevant information about a decision”. “Relevant information” is said in paragraph 4.19 to include “what the likely consequences of a decision would be (the possible effects of deciding one way or another) – and also the likely consequences of making no decision at all”. Paragraph 4.46 of the Code of Practice adds that “it is important to assess people when they are in the best state to make the decision, if possible”.

22. Thirdly, a person is not to be treated as unable to make a decision merely because she makes an unwise decision: s. 1(4). Paragraph 4.30 of the Code of Practice emphasises the importance of acknowledging the difference between, on the one hand, unwise decisions and, on the other hand, decisions based on a lack of understanding of risks or inability to weigh up the information about a decision.

23. As set out above, the Act provides that a person lacks capacity in relation to a matter if at the material time he is unable to make a decision for himself in relation to the matter because of an impairment of, or disturbance in the functioning of, the mind or brain: s. 2(1). Thus the test for lacking capacity involves two stages. The first stage, often called the “diagnostic test”, is whether the person has such an impairment or disturbance. The second stage, often known as the “functional test”, is whether the impairment or disturbance renders the person unable to make the decision. S. 3(1) provides that, for the purposes of s. 2, a person is unable to make a decision for himself if he is unable (a) to understand the information relevant to the decision; (b) to retain that information; (c) to use or weigh that information as part of the process of making the decision, or (d) to communicate his decision whether by talking, using sign language or any other means.

24. In addressing the issues of capacity in this case, I bear in mind a number of other points of law.

25. Importantly, capacity is both issue-specific and time specific. A person may have capacity in respect of certain matters but not in relation to other matters. Equally, a person may have capacity at one time and not at another. The question is whether, at the date on which the court is considering capacity, the person lacks the capacity in issue.

26. Next, as Macur J (as she then was) observed in LBL v RYJ [2010] EWHC 2664 (Fam) (at paragraph 24), “it is not necessary for the person to comprehend every detail of the issue … it is not always necessary for a person to comprehend all peripheral detail .…” The question is whether the person under review can “comprehend and weigh the salient details relevant to the decision to be made” (ibid, paragraph 58).

27. Furthermore, in assessing the question of capacity, the court must consider all the relevant evidence. Clearly, the opinion of an independently-instructed expert will be likely to be of very considerable importance, but in addition the court in these cases will invariably have evidence from other professionals who have experience of treating and working with P, the subject of the proceedings, and sometimes from friends and family and indeed from P himself.. As Charles J observed (in the analogous context of care proceedings) in A County Council v KD and L [2005] EWHC 144 (Fam) [2005] 1 FLR 851 at paras 39 and 44, “it is important to remember (i) that the roles of the court and the expert are distinct and (ii) it is the court that is in the position to weigh the expert evidence against its findings on the other evidence… the judge must always remember that he or she is the person who makes the final decision”. Thus, when assessing the ability of a person to (a) understand the information relevant to the decision (b) retain that information, and (c) use or weigh that information as part of the process of making the decision, the court must consider all the evidence, not merely the views of the independent expert.

28. Finally, I reiterate the further point, to which I have alluded in earlier decisions, including PH v A Local Authority, Z Ltd and R [2011] EWHC 1704 (Fam) and CC v KK [2012] EWHC 2136 (COP). In a case involving a vulnerable adult, there is a risk that all professionals involved with treating and helping that person – including, of course, a judge in the Court of Protection – may feel drawn towards an outcome that is more protective of the adult and thus, in certain circumstances, fail to carry out an assessment of capacity that is detached and objective.”

4

I respectfully agree.

Background

5

AA was removed from his mother's care and was placed in the care of his father until he was 15. On 23 rd November 2017 he alleged his father had asked him for oral sex. His father was arrested but the police took no further action. AA went to live with his paternal aunt but she was unable to cope and therefore on 27 th November 2017 he was voluntarily accommodated by the local authority pursuant to s.20 Children Act 1989. AA was placed in a children's home.

6

The local authority issued an application for a care order. On 26 th November 2018, AA was made the subject of a care order.

7

These proceedings in the Court of Protection were brought seeking incapacity declarations and a decision that it was in AA's best interests to move from the children's home to a supported living placement where his deprivation of liberty was to be authorised. On 3 rd August 2020, AA moved to his new property where he has support 24 hours per day, seven days per week.

8

He is studying an animal care course at a college local to his placement which he attends every Wednesday and Friday. AA maintains contact with some members of his family, but his father does not wish to speak to him.

9

As I have mentioned, AA engages in or has an interest in various sexual practices, namely, AEA, cross dressing, abduction, rape and ‘My Little Pony’. The local authority submitted that because of AA's autism these interests are at risk of becoming all consuming. Without appropriate intervention and support, it was admitted that there is a high risk of unintentional death. Members of AA's family are further concerned that he could not only be a victim of sexual abuse and assault but also become a perpetrator.

10

His interest in AEA started at the age of 13 or 14. Whilst living with his father, he was found to have AEA videos on his phone and on one occasion fell asleep with a plastic bag over his head. His aunt had previously noted red marks around AA's neck. In March 2018, it was noted that he had made a noose with swimming goggles.

11

AA has reported that he has been ‘dizzy’ when practicing AEA. He has described how cutting off his circulation is ‘just a nice feeling to have’ and that he is addicted to it. He has said that he had a bag over his head until ‘getting to a point I couldn't breathe and masturbating…didn't know the real reason I was doing it’.

12

In respect of his use of the internet and social media, I note the following:

i) sexually explicit...

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