Capacity and converging areas of decision-making

A council recently won an appeal over a ruling on whether a 20-year-old man had capacity in certain areas. Lucinda France-Hayhurst analyses the judgment.

Mrs Justice Theis (Vice President of the Court of Protection) heard the appeal of an earlier judgment of HHJ Burrows (reported as A Local Authority v ZZ [2023] EWCOP61) which revisited the overlap between converging areas of decision-making.

The appeal was allowed in ZZ (Capacity), Re [2024] EWCOP 21 (12 April 2024) on all three grounds in that the lower court had been wrong to find that ‘ZZ’ had capacity to (i) decide where to live; (ii) decide to engage in sexual relations; (iii) decide to marry. Theis J reiterated the need to avoid assessing decision-making in silos with respect to residence and care, and contact and sexual relations (citing Hull CC v KF at [24]); and to have in mind the overlap between different decisions so as to avoid incoherent decisions which make care planning impractical or impossible.

Acknowledging that the bar for capacity to engage in sexual relations must not be set too high, Theis J’s judgment reminds us that the court must also consider serious, grave consequences for P and others in assessing whether P has the capacity to engage in sexual relations. In the present case, P’s ability to use or weigh up information about consent (his own and that of a sexual partner) was the area of focus.  

ZZ was a young man of 20 years at the time of the appeal judgment with a diagnosis of mild learning disability, ADHD and possible OCD. He had been a victim of sexual abuse as a child and had himself been convicted of sexual abuse on a young relative resulting an Intensive Referral Order and Sexual Harm Prevention Order. He continued to display difficult and challenging sexualised behaviours throughout adolescence and now wished to have a sexual relationship with his girlfriend, ‘TD’. ZZ had been assessed in 2021 to pose a very high risk of committing harmful sexual acts towards others by virtue of his intrusive sexual thoughts. He was later assessed by Dr Rippon who ultimately concluded in a written report that ZZ lacks the capacity to decide whether to engage in sexual relations referring to his inability to control his behaviour or to stop himself from engaging in behaviour which he knew to be wrong which prevents him from weighing up the relevant information concerning sex. She considered that ZZ does “not have any insight into his own vulnerabilities and may potentially behave in public in a way which places him at significant risk of both sexual exploitation by others but also aggressive behaviour and potential reprisals”.

In oral evidence [39-43], Dr Rippon outlined the distinct character of ZZ’s urges in the context of his background, ‘…the history of quite obsessional sexual thoughts and sexual urges, I was concerned that this—that there was a degree of compulsion linked to his desires to have sexual relationships with others.’ At little later she said ‘…given ZZ’s background history and evidence of him acting inappropriately, I think there is evidence that even though he knows something is wrong, he finds it difficult to stop himself from doing that.’ Dr Rippon then related it to his mental impairment by stating ‘…there is evidence that ZZ does have compulsive and obsessional behaviours, which I believe is a disorder of—(inaudible) disorder of the mind, the brain, and I think it is that that drives behaviour, and makes it difficult for him to stop himself from doing something that he knows is wrong and inappropriate.’  In relation to contraception Dr Rippon accepted that ‘it’s the overwhelming urge to have sex that would prevent him from using a condom rather than necessarily a disturbance of the mind and brain…I think there is evidence though that ZZ in his history has (inaudible) compulsions and obsessions and sexual urges that go above and beyond a normal 19 year old’ and he needs to have insight into that in order to have capacity to consent to sex. More generally, Dr Rippon considered that ZZ was unable to demonstrate empathy due to both his learning disability and the impact of his executive dysfunction ‘he struggles to understand other people’s emotions, and how his actions will impact on them…It is a combination of factors with ZZ, I think it is his early life experiences, it’s his learning disability, it’s his ability to think through the consequences of his actions…he struggled to put himself into somebody else’s shoes and …think about how his behaviour impacted on them.’

Sexual Relations [82-84]

The court at first instance had fallen into a similar situation to that highlighted by Poole J in Hull v KF, namely that ZZ lacks capacity to have contact with his girlfriend but has capacity to have sexual relations with her. The Judge had been wrong to find that ZZ had capacity to engage in sexual relations because:

(1) The Judge did not properly deal with the evidence of Dr Rippon in relation to:

a. whether ZZ was able to use or weigh information about consent in the context of ZZ’s sexual impulsivity and the complexity of the causes of that, including his mental impairment;

b. that ZZ’s disinhibited sexual behaviour was due to a combination of his mental impairment, which included his cognitive functioning and executive functioning and gave disproportionate weight to the significance of ZZ’s ordinary sexual urges/desire.

The appeal judgment established that it is wrong to classify P’s control of or insight into his sexual urges or desire as an additional limb of the JB criteria. Rather, the court should consider first whether a person can make the decision about engaging in sexual relations (having regard to his/her understanding of consent as part of the relevant information), and thereafter, whether his/her inability to do so is caused by his/her mental impairment. The Judge had not dealt properly with the expert’s evidence about the link between ZZ’s urges and his mental impairment. Theis J noted [84(3)]: “The Judge erred in not following the approach set out in JB by asking himself first is the person unable to decide the matter for himself by reference to the matter and the relevant information, second is there a clear nexus between his inability to make a decision in relation to the matter and an impairment of, or disturbance in the mind or brain. If he had taken that structure it would have directed him to the relevant parts of Dr Rippon’s evidence”.

Theis J found that the Judge had wrongly equated ZZ’s sexual disinhibition with the usual risk-taking of a person of commensurate maturity (as Cobb J did in Re Z). The Judge failed to properly weigh in the balance the evidence that ZZ has a record of sex offending and has been assessed as manipulative and presenting a very high risk. His sexually disinhibited behaviour falls into a different category than that envisaged by Cobb J in Re Z, with the result that the ability to use or weigh the question of consent needs to considered in that context.

Marriage [86]

Concerning the question of capacity to marry, Theis J concluded that, “Turning, finally, to the issue of capacity to marry, whilst not reaching any conclusion as to whether such a declaration could stand irrespective of any conclusion about capacity to engage in sexual relations, I am satisfied that in the circumstances of this case that ground of appeal is also established. A consistent feature of the evidence is that ZZ wishes to marry TD and for them to have children”.

Residence [78-81]

In relation to residence, the court must grapple with and apply the evidence to the question of whether and to what degree receiving care forms part of the relevant information regarding a decision about where to live. P’s wishes and feelings were an important factor for consideration. If the care element is a prominent aspect of residence in the particular case (as was the case here), then it will be important to analyse the extent to which P can use or weigh information about his/her care package in the relevant settings. To do otherwise is to risk reaching decisions in silos, with implications for the local authority in being able to coherently manage a care plan.

Lucinda France-Hayhurst is a barrister at St John’s Buildings. Together with Joseph O’Brien KC, also of St John’s Buildings, she acted for the appellant council.