In a previous hearing, a judgment was handed down in the Court of Protection that TZ, a 24-year-old man with mild learning disabilities, atypical autism and hyperactivity disorder, who lacked the capacity to litigate, had the capacity to consent to and engage in sexual relations. At that hearing, decisions on the two following issues had been adjourned: whether TZ had the capacity to –
1) make decisions as to his contact with other people; and
2) make decisions as to his care needs.
As the question of capacity to consent to sexual relations was being considered by the Court of Appeal in an unrelated case in which judgment was reserved, the Court decided to adjourn the immediate hearing until the Court of Appeal judgment was available, and to permit the parties to file addendum written submissions as to the impact of that decision on this case.
In his early twenties, TZ became involved in a relationship with another man (‘A’), during which he was significantly ill-treated. The local authority later filed an application in the Court of Protection seeking declarations as to his capacity and orders as to his welfare. TZ was placed in a residential unit (‘H Home’), which was run by an organisation that specialised in offering supportive accommodation for people with learning disabilities. TZ continued to live here, and was very happy and settled.
Later that year, a Court ordered that it was lawful and in TZ’s best interests to live at H Home until further order, and that it was lawful and in his best interests for his contact with A to be restricted. Other orders were made, including a direction giving permission for the parties to instruct an expert psychiatrist (‘Dr X’) to advise as to TZ’s capacity. Dr X concluded that TZ lacked capacity to litigate in these proceedings, make decisions regarding his residence and care, make decisions as to his contact with other people, or to consent to any sexual relationships. The proceedings were subsequently listed before this Court in order to determine the issue of capacity to consent to sexual relations, and further interim orders and declarations were made pending the hearing. At the conclusion of the hearing, this Court found and declared that TZ had the capacity to consent to and engage in sexual relations. Directions were then given for the preparation of supplemental assessments as to TZ’s capacity to make decisions regarding contact with others and his care needs, and for a further hearing when the aforementioned reports were available.
The principal focus of the latest assessments related to the forming of intimate relations. Both TZ and all the professionals involved believed that he should have had the opportunity to have these experiences. The question was whether he had the capacity in respect of decisions that may have to be made when that opportunity arose.
The issues now arising were as follows:
1) What is the relevant decision in respect of which the question of capacity arises?
As the ‘specific factual context’ related to when TZ came into contact with certain types of people, namely those with whom he wished or may have wished to have sexual relations, the relevant decision was not whether to have contact with people generally, or with a named individual, but whether or not an individual with whom TZ may have wished to have sexual relations was safe. The secondary decision was whether, in those circumstances, he then had the capacity to make a decision as to the support he required.
2) Does TZ lack capacity in respect of that decision?
As a result of TZ’s conditions, Dr X believed that TZ met the criteria for the diagnostic test under section 2(1) of the Mental Capacity Act 2005 (he had an impairment of, or a disturbance in the functioning of, the mind or brain). This was accepted by the Court.
Regarding the functional test, the Court found that TZ did not have the capacity to decide whether a person with whom he may have wished to have sexual relations was safe. In particular, whilst he had the ability to understand and retain information, he lacked the ability to use or weigh up the information, including the ability to assess risk and understand the foreseeable consequences of a decision. Rather than making unwise decisions, which he had a right to make, TZ had a tendency to make decisions which lacked an understanding of the risks, and was unable to weigh up the information concerning a decision.
And whilst section 1(2) of the Mental Capacity Act 2005 outlined that a person could not be treated as unable to make a decision unless all practicable steps to help him to do so were taken without success, the Court considered (on Dr X’s advice) that there was no immediate prospect of extending TZ’s capacity via a programme of education.
The Court also held that TZ did not have the capacity to decide what support he required when having contact with a prospective sexual partner. The Court drew upon TZ’s social worker’s (‘JS’) oral evidence which found that TZ’s understanding of why he needed support was dependent on his mood, and therefore his capacity was variable in this respect. They also noted Dr X findings, who stated that he did not think that TZ’s compliance with support showed an understanding of the need for that support. Dr X believed that it was likely that TZ would in due course ask the support worker to leave.
3) If he lacked relevant capacity, what orders should be made in TZ’s best interests?
Both parties agreed that the local authority should file a care plan. The remaining issues concerned:
i. the contents of that plan, and
ii. whether a welfare deputy should have been appointed.
The Court made the following proposals for the sort of measures that should have been included in the plan:
a. Basic principles
The basis for this plan was as follows:
– TZ would live at H Home, and in due course would move to a step-down facility, and then into supported living
– TZ would be entitled to a number of hours of one-to-one support every week (then fixed at 32 hours)
– TZ had the capacity to consent to and enter into sexual relations, establish relationships with others and meet with potential sexual partners
– TZ lacked the capacity to decide whether a prospective sexual partner was safe, and the capacity to make a decision as to the support he required when having contact with such an individual
– The local authority and the Court were under a positive obligation to ensure that he was supported in having a sexual relationship if he wished to do so, but also to ensure that he was kept safe from harm
– The purpose of the plan was to identify the necessary support for assisting TZ with developing a sexual relationship without exposing him to a risk of harm
b. Education and empowerment
When delivering this plan, the principal focus was on educating and empowering him to make these decisions, and any provisions in the plan directed at protecting him and restricting his contact were seen as interim measures until TZ acquired the necessary skills to make such decisions for himself. This should have included overseeing a programme of education and empowerment, seeking advice from LGBT groups and devising a programme of social activities to which TZ can be introduced.
The plan should have set out in practical terms the support TZ would have received when meeting potential sexual partners. The plan should have specified the level of one-to-one support that TZ will receive in the community and outline the steps to be taken to provide support in these circumstances. It was also stressed that TZ should have had some space to make decisions and mistakes for himself in order to help him to learn from the consequences of those decisions.
If TZ were to meet a stranger, the plan specified that he would be entitled to have private time with them and staff would only intervene where an identified risk was apparent. A risk assessment should be used to determine whether an intervention was necessary, and the least restrictive intervention necessary should have been used.
Where TZ decided to spend the night with someone, the care plan should have provided that a private space was made available.
The plan must have clearly delineated the circumstances in which care workers would need to intervene to protect TZ and the steps they were entitled to take when intervening. The Court held that it was not the role of the local authority staff to vet TZ’s sexual partners, nor deny TZ private time with proposed sexual partners simply because they were deemed unsuitable. Any assessment of abuse should have been ‘pragmatic, common sense and robust’ [Munby J, Re MM]. TZ should have been given the tools to assist him in light of his vulnerabilities, but they could not act in his best interests by attempting to eliminate all risks of harm given that even capacitous adults ran the risk of abuse and harm.
If TZ wanted to go off with someone he had just met, the plan detailed that the care worker should have tried to dissuade him, reminding him of the staged approach to new relationships that had been discussed and agreed. If he then refused to listen, and where there were concerns regarding the risk of harm, the care worker involved would have immediately had to alert management, who would ensure that legal representatives were informed. A further decision would then be taken as to whether police were informed, and/or whether an application was to be made to the Court of Protection.
e. Decision-making – should a deputy be appointed?
The Court decided that this was not an appropriate case for the appointment of a welfare deputy. In accordance with the Mental Capacity Act 2005 Code of Practice, they concluded that deputies were only required for the most difficult cases, as for most day-to-day actions or decisions, a decision needed to be taken by the person on the ground who was giving TZ the support. Otherwise it would have been impractical to refer the decision to anyone else (for example, either the Court or a deputy).
Further, where a support worker was unable to extract TZ from a situation where he was at an immediate risk of harm, whilst the MCA did permit a deputy to restrain the individual if certain conditions were satisfied, Parliament expressly provided that they could not make a decision involving an incapacitated individual and a named individual. In such instances, the individual who was the source of the risk would most likely have been identifiable, so a deputy would have been unable to lawfully prevent that contact with or without using restraint. If the situation could not have been resolved by the support worker, consideration must have then been given to applying to the court for injunctive relief. In an emergency, the police should have been called.
Long-term decisions, such as whether or not TZ should have moved out of his accommodation and cohabit with another man, were more appropriately to be decided by the Court.