PN (Capacity: Sexual Relations and Disclosure), Re
[2023] EWCOP 44
Local Authority A v ZZ
1 August 2023
[2023] EWCOP 61
Court of Protection
A young man with a learning disability and history of sexual offences needed a court to decide if he could make his own decisions. The court said he can decide where to live (for now) and get married, but he needs help deciding about things like using the internet, having sex, and who he talks to, because he doesn't always understand the risks.
Key Facts
- •ZZ (Peter), a nearly 20-year-old man with a history of sexual offending against children and vulnerable adults, is the subject of capacity proceedings.
- •Peter has a mild learning disability, ADHD, and possible OCD.
- •He is in a relationship with a vulnerable young woman, Jenny (JX), and their contact is supervised.
- •The case concerns Peter's capacity to make various decisions, including those relating to care, internet use, sexual relations, contact with others, and property.
- •The court considered evidence from a jointly instructed psychiatrist, Dr Rippon, and other mental health assessments.
Legal Principles
Presumption of capacity; burden of proof rests on those asserting incapacity.
Mental Capacity Act 2005 (MCA)
Functional test for capacity: understanding, retaining, using/weighing information, communicating decision.
MCA
Capacity is decision and time-specific.
Case law
Unwise decisions do not equate to lack of capacity.
Case law
Court must consider all evidence, but decision rests with the court.
Case law
Relevant information for residence decisions (LBX v K): type of property, location, proximity to family/friends, activities, cost, and CARE.
LBX v K [2013] EWHC 3230
Capacity to consent to sexual relations focuses on the individual's ability to make the decision, considering their unique circumstances (A Local Authority v JB [2021] UKSC 52).
A Local Authority v JB [2021] UKSC 52
Lack of capacity to consent to sexual relations means no one can make a best interests decision on their behalf; the individual cannot engage in sexual activity.
A Local Authority v JB [2021] UKSC 52
Ordinary risk-taking, even if unwise, does not automatically indicate lack of capacity (Re Z [2016] EWCOP 4).
Re Z [2016] EWCOP 4
Incapacity in one area (e.g., care) may impact decision-making in another area where capacity exists (Manchester City Council v LC & KR [2018] EWCOP 30).
Manchester City Council v LC & KR [2018] EWCOP 30
Outcomes
Lacks capacity to conduct proceedings.
Due to learning disability and executive functioning difficulties.
Lacks capacity to make decisions about care.
Lacks understanding of why support is needed and the risks of inadequate supervision.
Lacks capacity to make decisions about internet and social media use.
Unable to understand the associated risks.
Lacks capacity to consent to sexual relations.
Lack of insight into his ability to control his behaviour and stop himself from engaging in harmful sexual behaviour.
Lacks capacity to make decisions about contact with others (except his mother and Jenny).
Poses a risk to others due to sexual impulsivity and inability to understand that risk.
Lacks capacity to make decisions about contact with his mother and Jenny.
Inability to understand and mitigate risks associated with his sexual impulsivity.
Has capacity to decide where to reside (currently).
Only viable options involve appropriate care; if presented with a choice lacking adequate care, capacity would need reassessment.
Capacity to enter into a tenancy agreement and manage property and affairs requires further assessment.
Insufficient evidence to displace the presumption of capacity.
Has capacity to enter into marriage.
Understands the nature of marriage, its responsibilities, and the need for mutual love and commitment.
Capacity regarding contraception needs further consideration.
Potential for sexual urges to override decision-making regarding condom use; however, with planning and support, contraception can be implemented.