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England and Wales Court of Protection Decisions
You are here: BAILII >> Databases >> England and Wales Court of Protection Decisions >> AA (Court of Protection: Capacity To Consent To Sexual Practices)  EWCOP 66 (15 December 2020)
Cite as:  EWCOP 66,  COPLR 14
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Strand, London, WC2A 2LL
B e f o r e :
| Re AA (Court of Protection: Capacity to Consent to Sexual Practices)
A Local Authority
|- and -
(By his litigation friend, the Official Solicitor)
Mr J McKendrick QC (instructed by MJC Law) for the Respondent
Hearing dates: 27th November 2020
Crown Copyright ©
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.
The Hon Mr Justice Keehan :
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.
"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  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  EWHC 144 (Fam)  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  EWHC 1704 (Fam) and CC v KK  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."
i) sexually explicit material has been found on his mobile telephone;
ii) he has advertised online his desire to be a submissive partner, be kidnapped and raped;
iii) he has posted graphic sexual content;
iv) the police had previously found that AA has sent hundreds of explicit messages and photographs to men around the world and asked to be kidnapped;
v) more recently, since the restrictions on the use of his mobile phone were relaxed, AA has been communicating with another male who shared sexually explicit pictures with AA and they have exchanged texts relating to 'My Little Pony', sexual preferences, submission and depression; and
vi) AA is sometimes on his mobile phone until 4:00am or 5:00am.
i) AA does not have a learning disability;
ii) he does have autistic spectrum disorder, Asperger's syndrome and paraphilic disorder;
iii) AA does have capacity to conduct these proceedings;
iv) he does have capacity to make decisions as to his residence, care, contact with others, the use of the internet and social media and to engage in sexual relations; and
v) AEA should be considered as a specific decision and a domain separate from engagement in sexual relations.
i) AA underestimates the extent and range of support he will require in relation to his care arrangements;
ii) despite his knowledge of the potential dangers of internet use, AA continues to expose himself to a high risk of harm; and
iii) he does not fully appreciate the dangerousness of engaging in AEA.
i) to make decisions regarding AEA; and
ii) to make decisions about the use of the internet and social media in the context of his contact with others whom he meets online.
i) the concept of AEA;
ii) the manner in which AA engages in AEA;
iii) the range of risks and harm associated with the practice of AEA and their likelihood; and
iv) knowledge and use of safety strategies and their effectiveness (recognising that AEA is an inherently dangerous practice and potentially life threatening).
Dr Burchess also included knowledge and experience of other strategies for obtaining sexual gratification. Dr Ince agreed but considered this was more complicated for AA because of issues relating to his diagnosis of ASD which were currently unassessed.
i) he had no knowledge of the risk of partial hypoxia and acquired brain injury;
ii) he was unable to cross-transfer skills and knowledge because of his autism;
iii) although he has a basic understanding of the risks in relation to plastic bags, he cannot transfer this knowledge to other similar mechanisms; and
iv) AA could not retain information related to specific breathing techniques and similar information provided to him with the educative work undertaken with him.
"9.5.3. In the case of [AA] the aetiology of his presentation is also worthy of consideration given that and as set out within the previous diagnostic criteria he further presents with the relevant circumscribed and specific interests as a component of his ASD.
9.5.4. It is additionally worthy to note his early upbringing and similarly the relevance of sensory factors and the possibility/likelihood that he experiences a degree of 'low registration' in that he has a pattern of sensory processing in which he has a high threshold to sensory stimulus, and either does not detect changes within the range of stimulus, or requires a higher level of sensory stimulus to achieve the same outcome both of these scenarios would be hugely pertinent in this case given the risks related to either a greater need for hypoxia for the same level of arousal or the failure to recognise changes in consciousness levels and the risk of hypoxic brain injury or death."
"9.6.10. Accordingly, I do not believe that [AA] truly understands the inherent risks related to all relevant practices, can transfer his knowledge between each practice (be it breathing techniques, use of dog collars, ligatures, plastic bags or other implements) and further does not have a broad knowledge of the ancillary risks aside from death, i.e. hypoxia, cognitive damage or the associated issues of being 'found' within such a position and thus the emotional and social impact upon others due to the behaviour itself rather than specifically his death.
9.6.11. As previously stated, it is also my view that there remains therapeutic assessment work that may firstly give a better understanding of the relevant aspects of AEA as a concept within [AA]'s sensory profile and thus alternative mechanisms by which interventions can be employed. I am also mindful that he referred to his interest in AEA as "an addiction" and whilst sublimated to more socially acceptable (and I use that as a concept accordingly) practices I again refer to the intrinsic compulsion related to the restrictive and circumscribed interests and thus the likelihood that they will be, in isolation, particularly difficult to extinguish.
9.6.12. As such, overall, it is my opinion that [AA] fails to understand and weigh the information relationship to the decision and thus lacks capacity to make decisions with regard to his engagement in AEA and associated practices for sexual gratification."
"9.7.12. I do, however, express significant concern with regard to [AA]'s ability to weigh the information relevant to the decision given his current actions and engagement with an individual of whom he has no confirmed information. I am similarly concerned that his circumscribed interests as a core component of his ASD drive his social interactions and use of social media and thus lead to engagement with a range of practices that are inherently risky and lead him to engage in behaviours, conversations, practices and the sharing of information that sits at the threshold between what would be considered rude and offensive and what would be considered illegal.
9.7.13. I also would suggest to the Court that [AA] demonstrates knowledge for scenarios upon which he has been taught, but cannot transfer these to current or future scenarios [AA], as a consequence of his ASD is, through necessity, an experiential learner, however in this area, such actions may cause him and others significant harm.
9.7.14. I would agree that [AA] is at significant risk of sexual exploitation and further at significant risk, perhaps inadvertently, of being a perpetrator of acts or sharing images/media that are illegal or would be considered under the umbrella of extreme pornography.
9.7.15. Overall, it is my opinion that [AA] continues to lack the ability to transfer skills from one specific scenario to another, continues to engage in similar practices and the sharing of interests and sexual fantasies albeit, currently, in a manner that is within the specific boundaries that have been set for him (although with evidence that these boundaries are being challenged and pushed)"
i) formulate an intervention plan;
ii) provide therapeutic support;
iii) psychological education; and
iv) a risk management plan.
He was concerned that AA had limited scope for social interaction.
i) one to one staffing at all times with visual checks every 10 minutes throughout the day and every 15 minutes when he is asleep;
ii) no unsupervised access in the community or social time;
iii) his mobile phone is checked every evening by a member of staff; and
iv) his bedroom is searched by the staff twice per day.
i) his residence;
ii) his care and support arrangements;
iii) his contact with others; and
iv) to consent to sexual relations.
The local authority agreed with these submissions.
i) In Aintree v James  UKSC 67 at paragraph 18 where she said "The Act is concerned with enabling the court to do for the patient what he could do for himself if of full capacity, but it goes no further"; and
ii) In N v A CCG  UKSC 22 where she held at paragraph 1 "The Mental Capacity Act 2005 established a comprehensive scheme for decision-making on behalf of people who are unable to make the decision for themselves. The decision-maker - whether a carer, donee of a power of attorney, court-appointed deputy or the court - stands in the shoes of the person who is unable to make the decision - known as P - and makes the decision for him. The decision has to be that which is in the best interests of P. But it is axiomatic that the decision-maker can only make a decision which P himself could have made."
"i) Information and images (including videos) which you share on the internet or through social media could be shared more widely, including with people you don't know, without you knowing or being able to stop it;
ii) It is possible to limit the sharing of personal information or images (and videos) by using 'privacy and location settings' on some internet and social media sites;
iii) If you place material or images (including videos) on social media sites which are rude or offensive, or share those images, other people might be upset or offended;
iv) Some people you meet or communicate with ('talk to') online, who you don't otherwise know, may not be who they say they are ('they may disguise, or lie about, themselves'); someone who calls themselves a 'friend' on social media may not be friendly;
v) Some people you meet or communicate with ('talk to') on the internet or through social media, who you don't otherwise know, may pose a risk to you; they may lie to you, or exploit or take advantage of you sexually, financially, emotionally and/or physically; they may want to cause you harm;
vi) If you look at or share extremely rude or offensive images, messages or videos online you may get into trouble with the police, because you may have committed a crime."
As the Court of Appeal observed, at paragraph 44 of the judgment, this list is only guidance which must be tailored to the individual case. Albeit on the facts of this case, the Official Solicitor submitted that Cobb J's list could be applied to AA without amendment.
"33. The following specific points must be made:
a. In as much as [AA] has unusual sexual interests and derives pleasure from those, as long as they remain within the law, these are private matters for him and all professionals must approach him and his interests in a non-judgemental fashion;
b. AEA is dangerous and [AA] is at risk of injury or death should he continue to practise it;
c. It is very important, whether he has or does not have capacity, that he is assisted to be offered, and accept, a package of sexual education that embraces his sexual interests and the safe(r) AEA practices;
d. his decision making should be seen in the context of Dr Burchess' cogent conclusions that [AA] has capacity in all areas of life and in particular he has capacity to consent to sexual relations, which incurs the risk of life altering sexually transmitted disease; and
e. [AA] is currently being deprived of his liberty because of the risks to his health of AEA - these are significant restrictions for a young man about to turn 19.
34. The following broader points are also made:
a. all adults, whether capacitous or not, are entitled to a zone of private life in which they can explore their sexuality and seek solitary pleasure, whether from masturbation, other self-stimulatory behaviour, watching pornography or using sex toys;
b. the state must be vigilant to afford those who are considered to be of borderline capacity, autistic or learning disabled a clear zone of privacy in respect of solitary sexual practices, the state has very limited role to assess capacity or make best interests decisions in these area: every incursion is an affront to human dignity and private life; and
c. professionals must be alive to the fact that unusual sexual practices may be difficult to assess from the perspective of capacity, because the mechanics of such acts and the pleasures derived from them are unchartered and/or unknown territory.
35. The Official Solicitor submits than in the vast majority of self-stimulatory sexual practices there is no role for capacity assessments and best interests decisions. That is because there are limits to the state's entitlement to interfere with adults' private lives. A failure to respect this boundary is a gross incursion into the dignity and humanity with which all adults are entitled to lead their lives. There is a risk of discrimination against the learning disabled and others with incapacity, should private practices become the subject of public assessment.
36. That being said, the state must also accept where those self-stimulatory sexual practices incur a risk of serious harm, the state has a role to protect adults who lack capacity to make such decisions. The Official Solicitor has considered, as a matter of public policy and statutory construction, whether the applicant, and this court, have any proper role to conduct a capacity assessment of [AA]'s decision making in respect of AEA. There is an argument that unlike sexual relations which involves another partner, the state's role should be limited and circumscribed. But, on balance, the risk of death/hypoxia of AEA leads to the conclusion that unlike most other self-stimulatory practices, a capacity assessment is not inconsistent with public policy and the language of the Act."
"48. First, it is submitted the court should not step into [AA]'s shoes to make a best interest decision for him. The court cannot weigh up and use the relevant information (pleasure versus risk of harm) on [AA]'s behalf as the court cannot weigh up the highly subjective factors of sexual pleasure and risk in an objective way to reach a decision.
49. Secondly, such an approach is consistent with section 27 MCA which imposes a statutory prohibition on best interests decisions being made in respect of P's consent to sexual relations. A solitary sexual practice, whilst very different from sexual relations, should be approached in broadly the same manner.
50. Thirdly, it would amount to a violation of [AA]'s Article 8 ECHR right to respect for a private life, for his intimate, private sexual life to be analysed in this way.
51. Overall, it is contrary to public policy for the court to make a best interests decision whether AEA is or is not in P's best interests, notwithstanding the fact that AEA is not unlawful.
52. Does this have the effect that the court is powerless to protect [AA] from serious harm if he lacks capacity to decide about AEA? It is submitted, that if he does lack that capacity, then the court must assess whether or not he has capacity to accept support, should he decide (incapacitously) to carry out AEA. The written evidence does not directly touch on this point and it may need to be explored in questioning."
i) AA potentially has a high threshold to sensory stimulus and thus may require a higher level of stimulus to achieve the same outcome; and
ii) AA's 'addiction' and intrinsic compulsion to engage in AEA, and other restrictive and circumscribed interests, are likely to render it difficult to change his behaviour.
Accordingly, in my judgment AA is at high risk of being unable to regulate his engagement with AEA and therefore at greater risk of serious harm or death.
i) enables the professionals and the court to be better informed about the impact of AA's ASD on his life and his functioning;
ii) enables the professionals and the court to better understand how AA can be supported to gain capacity to make decisions about these two issues; and
iii) permits AA sufficient autonomy of decision making and respects his right to a private life whilst balancing the need to protect him from harm.