Local Authority A v ZZ
[2023] EWCOP 61
A Local Authority v ZX
6 June 2024
[2024] EWCOP 30 (T2)
Court of Protection
An 18-year-old with a history of sexual misconduct and ADHD was found by the court to lack the capacity to consent to sex. Even though he understands the concept of consent, his impulsiveness prevents him from using this understanding in real-life situations. The court ordered restrictions to keep him and others safe, while emphasizing that he should be allowed the normal life of an 18-year-old, as much as possible.
Key Facts
- •ZX, an 18-year-old, has a history of harmful sexual behaviors involving himself, other people, and animals.
- •Allegations of sexual abuse against ZX's adoptive parents are under police investigation.
- •ZX has displayed concerning behaviors, including risky online activity, absconding, and contact with a 15-year-old girl.
- •The Local Authority seeks restrictions on ZX's activities due to the risk of serious harm to others.
Legal Principles
Mental Capacity Act 2005 (MCA): Presumption of capacity, obligation to take all practicable steps to help P make a decision, unwise decisions do not automatically equate to lack of capacity, decisions must be in P's best interests, and the principle of least restriction.
Mental Capacity Act 2005
MCA Section 3: A person lacks capacity if unable to understand relevant information, retain it, use/weigh it, or communicate their decision.
Mental Capacity Act 2005, Section 3
MCA Section 27(1)(a): Prohibits best interest decisions enabling P to consent to sexual relations if lacking capacity.
Mental Capacity Act 2005, Section 27(1)(a)
A Local Authority v JB [2021] UKSC 35: Defines relevant information for capacity to engage in sexual activity, including understanding the sexual nature of the act, the need for the other person's capacity and consent, and reasonably foreseeable consequences.
A Local Authority v JB [2021] UKSC 35
PN (Capacity: Sexual Relations and Disclosure) [2023] EWCOP 44; Distinguishes between impulsivity in general and within the sexual arena, emphasizing the need to avoid the 'protection imperative' and consider a pattern of impulsivity linked to impairment.
PN (Capacity: Sexual Relations and Disclosure) [2023] EWCOP 44
Capacity decisions must be coherent and allow for practical care arrangements, avoiding 'silo' thinking where different decision-making domains are inappropriately separated.
Hull CC v KF [2022] EWCOP 33, A Local Authority v. ZZ [2024] EWCOP 21
Outcomes
ZX lacks capacity to engage in sexual activity.
ZX's history of harmful sexual behavior, coupled with his neurodevelopmental disorders (particularly ADHD) leading to impulsivity, prevents him from reliably using and weighing information regarding consent in the moment, specifically failing to meet the requirements of A Local Authority v JB [2021] UKSC 35 (limb 2).