Mental capacity: disentangling care, residence, sexual relations and marriage

A Court of Protection Appeal decision serves as a reminder that a conclusion on capacity is a difficult and intricate decision.

The case involved ZZ a 20-year-old man with diagnoses of mild learning disability and ADHD, who had previously been convicted of sexual assault on a 5-year-old family member.

In 2022, the Local Authority applied to the Court of Protection to authorise ZZ’s deprivation of liberty in a supported living placement consisting of a self-contained flat. ZZ wanted to enter into a relationship and have sexual relations with his girlfriend.

A report by Dr Rippon found that ZZ lacked capacity to have sexual relations or to marry. However, His Honour Judge Burrows, in his judgment, found that ZZ had capacity in respect of residence, sexual relations, and marriage. The Local Authority appealed this judgment, and the appeal was heard before Mrs Justice Theis, vice president of the Court of Protection in March of this year.

The grounds of appeal were that the judge in the initial proceedings was wrong to find that ZZ had capacity to make decisions (i) about residence; (ii) to engage in sexual relations; and (iii) to marry.

Issues

The judge had previously reached the conclusion that ZZ had capacity to decide upon residence, with the acknowledgement that there is not a decision for ZZ to make over whether he lives in a care setting. The judge found, on sexual relations, that the bar for capacity was set too high if capacity to consent was ruled out because the individual was unable to control their urge to carry on with the sexual act. In light of this, he found that ZZ also had capacity to enter into a marriage.

Mrs Justice Theis noted that it is not a test to see whether this court would have reached the same or different conclusions to HHJ Burrows, but rather whether HHJ Burrows was able to reach the conclusions he reached, on the evidence he had before him.

It was submitted by the Local Authority that the previous judge had failed to properly consider the evidence of Dr Rippon. Mrs Justice Theis felt that the evidence of Dr Rippon was at times confusing and confused, meaning HHJ Burrows’ task had been made even more difficult.

The decision

Mrs Justice Theis found that HHJ Burrows had been wrong to conclude that ZZ had capacity in respect of residence. The care and support ZZ required should have been considered as part of residence and was not.

Mrs Justice Theis further found that the judge’s conclusion on capacity around sexual relations was wrong. The judge had not dealt with various aspects of Dr Rippon’s evidence and wrongly equated ZZ’s ‘sexual disinhibition’ with a person of commensurate maturity’s usual risk-taking. ZZ has a history of sexual offences and is high risk, meaning his sexually disinhibited behaviour is in a different category.

Mrs Justice Theis found that the judge had not followed the approach set out in JB, namely that he should have asked 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’.

Finally, when considering the issue of marriage capacity, Mrs Justice Theis did not reach a conclusion on whether HHJ Burrows’ declaration could stand in the light of capacity on sexual relations but agreed that the ground of appeal in respect of this was also made out.

The case was remitted to reconsider the issue of capacity.

Comment

The case reminds us that a conclusion on capacity is a complex decision, particularly when considering the question of whether care and support, and residence, can be separated out or not, and there is not always a clear-cut answer, even for the Court of Protection.

It also serves as a reminder that if there are concerns that a judge has made the wrong decision, the relevant framework under the Court of Protection Rules 2017 rule 20.14(4)(a) can allow for grounds for an appeal to be made out.