Local Authority A v ZZ
[2023] EWCOP 61
PN (Capacity: Sexual Relations and Disclosure), Re
20 October 2023
[2023] EWCOP 44
Court of Protection
A man with learning difficulties who has a history of inappropriately touching women was found by a court to understand that he needs to get consent before touching anyone. Even though he sometimes doesn't follow this rule, he knows the rule. The court also said he can decide for himself whether to tell people about his past actions, but can't decide who to talk to in general because he struggles with social situations.
Key Facts
- •PN is a 34-year-old man with a mild learning disability and ASD.
- •He has a history of sexual offending, primarily opportunistic touching of women.
- •The court considered PN's capacity to make decisions regarding sexual relations, disclosing information about his sexual offending, and allowing the Local Authority to disclose such information.
- •There was no dispute about PN’s lack of capacity to conduct these proceedings; previous declarations established his lack of capacity in other areas.
Legal Principles
Test for capacity under ss2 and 3 of the Mental Capacity Act 2005 (MCA 2005), incorporating the principles in s1.
Mental Capacity Act 2005
The Supreme Court's decision in A Local Authority v JB [2021] UKSC 52 clarifies the approach to determining capacity to engage in sexual relations.
A Local Authority v JB [2021] UKSC 52
The question is not whether P has capacity to consent to sexual relations, but whether P has capacity to engage in sexual relations.
A Local Authority v JB [2021] UKSC 52
Relevant information for capacity to engage in sexual relations may include: the sexual nature of the act; the necessity of consent; P's ability to give or withhold consent; reasonably foreseeable consequences (including for others); health risks.
A Local Authority v JB [2021] UKSC 52
The relevant information may be tailored to the individual's circumstances, including their sexual orientation and practices.
A Local Authority v JB [2021] UKSC 52
The court must not allow the desire to protect others to unduly influence the capacity assessment.
Various case law discussed
A person is not to be treated as unable to make a decision merely because he makes an unwise decision.
MCA 2005 s1(4)
Outcomes
PN has capacity to engage in sexual relations.
PN understands the necessity of consent, even if he chooses to disregard it due to impulse rather than incapacity. His impulsive behaviour stems from his character, not his impairments.
PN has capacity to decide whether to disclose information about the risk of sexual harm he poses to others.
PN understands the information relevant to the decision, including the potential consequences of disclosure or non-disclosure, even if he chooses not to disclose due to embarrassment or fear.
PN has capacity to allow the Local Authority to disclose information about the risk of sexual harm he poses to others.
PN understands the information and can weigh up potential options, even if he opposes the disclosure.
PN lacks capacity to make decisions about non-sexual contact with others.
PN’s lack of understanding of social boundaries, stemming from his impairments, prevents him from understanding and weighing information regarding non-sexual interactions.