Derbyshire County Council v AC, EC & LC [2014] EWCOP 38

In these proceedings, Derbyshire County Council asked the court to make a number of declarations relating to AC’s capacity to make significant welfare decisions, and a best interests decision regarding her residence.  The proceedings are ongoing, but the court gave an interim judgment.

 

AC was a 22 year old woman with a significant learning disability, as a result of which she was described by the consultant psychiatrist in the case as presenting as a “reception class child”.

 

AC suffered from depression and hyperthyroidism, and was known at times to be volatile, violent and extremely aggressive.  AC resided mostly with her parents EC and LC but also spent time each week with her boyfriend DU, who had convictions for assault and causing actual bodily harm against a former partner, and against whom AC made (but then retracted) allegations of assault.  The relationship between AC and her mother LC was said to be volatile, and LC’s conduct towards professionals was described as aggressive and a negative influence on AC.

 

AC had a history of volatile and abusive relationships with friends and sexual partners.  In 2012 she gave birth to a baby who became the subject of care proceedings and ultimately a Placement Order, allowing the local authority to place the baby for adoption.

 

The Court of Protection proceedings were started after AC disclosed what appeared to be sexual exploitation at the hands of a man known to the police to have a history of violent behaviour; she also alleged that she had been in a crash involving a stolen car driven by this man whilst he was drunk.

 

Specifically, Derbyshire asked the court to declare that AC lacked capacity to litigate, to make choices about her future care and to decide about contact with others.  It sought an interim declaration of incapacity in relation to informed decisions about her future residence, and a decision that it was in AC’s best interests to reside at an identified residential home local to her parents’ home.  Finally, Derbyshire asked the court to declare that AC had capacity to consent to sexual relations.

 

Mr Justice Cobb concluded fairly swiftly that AC lacked capacity to litigate, to make choices about her care package, and in relation to contact with others.  Not surprisingly, he spent considerably more time on the issue of capacity to consent to sexual relations and to decide on future residence.

 

After careful consideration of the views of the experts and parties, and of the relevant (and considerable) case law, Mr Justice Cobb appeared to accept with some trepidation the professional consensus that AC had capacity to consent to sexual relations.  Those views can be summarised as follows:

 

The psychologist considered that AC had a good understanding and retention of information relating to sexual relationships, was able to weigh this up and communicate her decisions, and demonstrated a reasonable understanding of consent and abuse.  However, he expressed his concern about AC’s ability to consent in complex situations where her emotional state may become more influential than when considering theoretical situations, and queried her ability to use her knowledge of potentially abusive relationships if in an exploitative relationship.

 

The psychiatrist considered that AC had a very limited understanding of the basic mechanics of sexual intercourse, including the risk of pregnancy and disease, but could not demonstrate that she would be able to refuse if she did not want sex.  The psychiatrist concluded that AC probably had fluctuating capacity in relation to consent but, on the evidence available, she concluded that AC was “currently probably capacitous in this domain”.

 

AC’s social worker told the court that she had struggled with this assessment of capacity but, whilst concerned about AC’s safety and her unwise decisions regarding her choice of partners, she considered that AC did have capacity to consent to sex.

 

Mr Justice Cobb urged the professionals to keep this particular issue under careful review due to the fluctuating nature of AC’s capacity in this regard.

 

As to capacity in relation to where she would live, the judge’s starting point was to consider what relevant information would inform this particular issue.  Counsel for both AC and Derbyshire put forward their suggestions for this, with Derbyshire’s Counsel submitting that some of the care aspects must be included.  The accepted list was as follows:

 

§         She will live with other people;

§         She will not live with her parents;

§         She will be supported by workers;

§         The location of the proposed home;

§         The age and gender of the other residents;

§         She will need to abide by the house rules;

§         Whether the placement is envisaged as long or short term;

§         One of the residential options has a therapeutic component.

 

It was acknowledged that AC was unable to weigh the pros and cons of any of the residential options.  An interim declaration of incapacity was sought, and was made, on the basis of a reasonable belief of lack of capacity ahead of an up to date capacity assessment being carried out.  That incapacity declaration having been made, the judge went on to find that it was in AC’s best interests to move to the identified residential home.

 

COMMENT

 

When considering capacity to consent to sexual relations, the judge carefully considered the views of the experts and the parties, then referred to the relevant case law on this issue that has flexed the minds of very senior judges.  The judge rightly identified the key elements of the test as being “general and issue specific, rather than person or event specific”, and the relevant information as being “relatively limited”.  Interestingly, Mr Justice Cobb goes on to identify an addition to the relevant information as being whether P understands “that she (or he) may at any time change her (or his) mind about consenting to sexual relations”.  This is an element of understanding not previously considered in the case law to date.

 

So, the result of this case was that AC lacks capacity regarding contact with others, but has capacity to decide about sexual relations.  The judge’s reluctance to reach this conclusion is evident in the judgment, but it is not necessarily surprising: sex is not likely to make you very, very unhappy for a long time, whilst being involved with someone who is manipulative, draining, and malevolent, very easily could.

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