Alex RKIn A Local Authority v ZX [2024] EWCOP 30, HHJ Burrows was confronted, to his considerable (and understandable) disquiet, with the need to determine whether an 18 year old man had capacity to make decisions about engaging in sexual relations with others. His discomfort arose from the fact that the local authority was having to have recourse to the Court of Protection to respond to a situation where the man in question was posing a (largely self-reported, but on the face of it non-trivial) sexual threat to others, but whether neither mental health services nor the criminal justice system could respond.
The facts of the case make disturbing reading, and I do not set them out here. A particular concern of HHJ Burrows was that much of the evidence about the risk posed to others by ZX arose from self-reporting to therapists and social workers.
27. The Court has not been asked by either party to carry out a fact-finding exercise. Indeed, it is almost impossible to see how such an exercise would have been even remotely practicable. However, this does mean that this Court, as well as the LA, has to base its decision on a factual matrix that could potentially be largely illusory. The Court, however, has no option but to do so.
The evidence from the clinical psychologist who had known ZX for some three years summed up the position starkly, identifying:
A scenario of future harmful sexual behaviour by ZX where he is alone with a potential victim. The victim is likely to be of a similar age to him, no more than 3 years difference, but vulnerable individuals would be at greater risk regardless of age. The nature of such harmful sexual behaviour is likely to be due to a need to increase his self-worth, to remove negative mood states or sexual satisfaction. In regard to severity of harm, the psychological harm and physical harm to the victim would be expected to be high. The imminence of his risk is likely when ZX is experiencing heightened low self-worth, alongside experiencing a negative mood state or is seeking sexual release. This imminence is likely to escalate if he is struggling to manage his negative mood state. The frequency of his harmful sexual behaviour is likely to be on at least several occasions if the context presents and is expected to be chronic. The likelihood is expected to be common, and based on his history, and without intervention, it is likely to re-occur.
ZX had been subject to a set of intense restrictions upon him to respond to this threat, initially authorised by the High Court exercising its inherent jurisdiction over minors, and then by the Court of Protection on an interim basis. In order to decide whether they could continue to be justified, HHJ Burrows had to determine whether ZX had capacity to decide to engage in sexual relations and contact; the present judgment focused on the question of sexual capacity.
HHJ Burrows undertook a review of the case-law, including the emphasis placed by the Supreme Court in A Local Authority v JB [2021] UKSC 35, on the need for the person deciding to engage in sexual relations to understand, retain, use and weigh the fact that) the fact that the other person must have the capacity to consent to the sexual activity and must in fact consent before and throughout the sexual activity. Having done so, he observed that:
75. It seems to me the state of the law is clear. When making assessments of a person’s mental capacity concerning decisions across a range of domains, the Court (and any assessor, for that matter) must strike a balance between treating each domain as a distinct area of assessment without taking into account other domains ( the “silo” error) on the one hand, but on the other, approaching the assessment in such a general manner, taking into account too many diffuse issues, leading the assessor to lose sight of what is being assessed. Being stuck in a silo represents overly strict rigidity. The opposite however leads to flexibility that verges on arbitrariness. The former leads to extremely difficult management issues for P’s carers and care planners. The latter leads to a large number of people with difficulties in decision making in one area being found to lack capacity in others when they may not need to. The burden is on the assessor to strike a properly reasoned balance.
76. I would take this argument further when dealing with capacity to engage in sexual relations. By placing capacity to engage in sexual activity away from most other decision making domains by removing the possibility of a decision being made on behalf of P, Parliament has created its own statutory silo. By placing the threshold so low, as the caselaw does, the assessor is directed to ensure factors that would be relevant to one decision making area (such as contact, for instance) may not be relevant to sexual relations.
A problem for HHJ Burrows in applying the law to the facts of the case was that the expert had changed his mind, following the decision of Theis J in A Local Authority v ZZ [2024] EWCOP 21, in which the Vice-President of the Court of Protection had concluded that HHJ Burrows had fallen into a silo in his analysis of the individual’s capacity to make decisions about engaging in sexual relations and contact. At paragraph 110, HHJ Burrows, reflecting on the appellate judgment, identified that the question he had to ask himself was about ZX whether:
If ZX is engaged in sexual activity or is in a situation where sexual activity is anticipated/expected by him with a person and consent from the other party is either not forthcoming or is withdrawn will ZX be able to make a capacitous decision about whether to stop that sexual activity accordingly?
As HHJ Burrows continued:
112. The answer to that question must be based on the evidence I have read and heard. It seems quite likely that ZX may find himself alone with a vulnerable would-be sexual partner, quite likely by design.
113. Once in that position, the question is not whether he would respect the refusal of the other party to consent to sexual activity, or the withdrawal of consent once sexual activity had begun. The question is whether he would be able to respect that refusal, or whether, because of his mental disorder as described by Dr Ince he would not be able to use and weigh (or process) his understanding of their right to refuse being respected. That would be what Dr Ince refers to as “in the moment”.
HHJ Burrows then set out his route to the conclusion that ZX lacked the material decision-making capacity:
The evidence I have seen and read, leads me to conclude:
(1) ZX has developed a longstanding appetite for sexual experience in which the coercive nature of the experience is part of the appeal, the thrill. Indeed, due to his trauma it may have become a necessary part of the experience in order for him to feel fulfilled.
(2) Although Dr. Ince identifies impulsivity, or at least he infers the existence of impulsivity, I am not satisfied that impulsivity is what I see. I see in ZX a young man who is cunning and opportunistic but is also capable of planning sexual contact with other people within the context of such liaisons being forbidden. Hence the reference made about his waiting until adults are out of the way before initiating sexual contacts.
(3) ZX was able to satisfy the JB test in his assessments with Dr Ince.
(4) However, and on reflection in the light of Theis, J’s judgment in ZZ, he concludes that “there is sufficient evidence within the chronology and [ZX]’s recent acts to demonstrate that firstly what he says within an assessment setting cannot be relied upon, and also that he continues to display a range of behaviours that disregard the norms and education provided to him”. (see the exchange with the Judge).
(5) It is not clear to me whether Dr Ince only refers to “in the moment” here. In his first report (from 11.5.20) onwards, he refers to a ZX’s “range of deficits within his executive functioning- and causally- would rely upon the presence of a neurodevelopmental disorder as an explanation for his observed difficulties”, and then identifies the areas in which this affects. These are:
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- Impaired working memory (impacting upon his ability to retain and use information)
- Poor impulse control (as evidenced in the chronology and risk assessments)
- In attention (and the impact upon learning and decision-making)
- Difficulties with planning, organisation and consequential decision-making
- Cognitive flexibility (and the ability to transition between tasks and transfer learning from one situation to another)
- Emotional regulations (and the ability to transition between tasks and transfer learning from one situation to another)
(6) It seems to me these features would apply to any situation in which ZX had the urge to engage in sexual activity with another person. It may lead to him planning to enable him to be alone with that person. It would certainly apply where he was involved in sexual activity and there was an absence or withdrawal of consent by the other party.
(7) Dr Ince is a jointly instructed expert, and his expert evidence is not countered by another expert. Although it is for me as the Judge to reach a conclusion of his own, and not blithely to follow what the expert says, I need to give a good reason if I come to a different conclusion.
(8) In order for me to reach the conclusion that ZX lacks capacity to consent to sexual activity I need to be satisfied on the basis of all the evidence I have read and heard that ZX is not be able to satisfy the JB test and particularly “in the moment” in the real world, rather than in a mental capacity assessment with Dr Ince.
(9) I am concerned this may involve speculation on my part as to what ZX may do if those circumstances arose. As Ms Gardner put it both in her questioning of Dr Ince, but also in her closing submissions, there is no evidence base for this. In other words, the Court has no evidence of what ZX does or would do when confronted with the absence or withdrawal of consent during sexual activity.
(10) The response to that is twofold. First, there is a good deal of evidence from ZX himself and his brother that he has engaged in non-consensual sexual activity with other people over the years. Secondly, Ms France-Hayhurst would invite the Court not to allow ZX to engage in activity that provides an evidence base, at the expense of ZX’s liberty and the devastating experiences of his victims.
(11) In response to the first of these, my answer is that the evidence considered within Dr Ince’s conceptual framework (post ZZ, in any event) does allow me to conclude that ZX does not “pass” the test in JB at limb (2). I am extremely concerned about doing so. It seems to me this is an hormonal 18 year old man with a considerable sexual appetite. If I conclude he lacks the capacity to engage in sexual activity, he will be subjected to an extremely restrictive regime where his only sexual “outlet” will be masturbation whilst watching selected on-line pornography; censored, I would imagine, to avoid images of violent rape, children and animals.
(12) On the other hand, I have to avoid what has been called the protection imperative. I must not tailor my formulation of the capacity assessment to ensure a particular outcome. Normally, that means trying to protect a vulnerable person who would otherwise be exploited or harmed unless protective measures can be put in place. Here, the same applies except it is ZX’s potential as a perpetrator in a serious sexual offence, and the consequences that flow for him, rather than his potential victim is what he is being protected against.
HHJ Burrows made clear at paragraph 114(14) that:
At first glance, this is a somewhat perverse use of the MCA. However, it is explicitly sanctioned by the Supreme Court in JB. Naturally, I must follow that judgment.
He therefore found that:
115. […] At the moment this judgment is written, I am satisfied that his behaviour in connection with sexual activity in combination with his mental disorder [identified earlier in the judgment as conduct disorder, ADHD and attachment difficulties] means that he is unable to use and weigh relevant information concerning his would be or actual sexual partner’s refusal to, or withdrawal of, consent in in real time.
He then continued:
116. I would add that I am intensely uncomfortable about the need for the LA to have to resort to the Court of Protection in a case of this sort. In the absence of the ongoing and active involvement of mental health services, and the absence of anything it seems the criminal justice system is able to do, they are required to use this Court.
117. However, what now follows is the LA will have to comply with their positive obligation to ensure that ZX gains capacity (if he can) in this domain: see, for instance, CH v A Metropolitan Council [2017] EWCOP 12(Hedley, J.).
118. At the same time, they will have to implement a care plan that is restrictive enough to remove ZX’s opportunity for sex, with other people at least, whilst, at the same time ensuring he is able to engage in the normal activities of an 18 year old person. The Court will scrutinise both during the process.
HHJ Burrows concluded by observing that the parties would need time to consider his judgment and, potentially, to consider an application to appeal. At the time of writing, it does not appear that such an application has been made.
Comment
HHJ Burrows’ observations about the need for balance between salami slicing into silos and an over-broad approach to capacity at paragraph 75 are crisply put, and I would suggest of wider application.
When it comes to the question that was central to the case, however, it might be thought that the decision makes good the thesis of a chapter I have co-written in an edited volume due out shortly, namely that it is difficult to escape the impression that we have started to ask questions in the context of capacity and sexual relations that the law perhaps should not have asked. That is not to say that the issues posed are not serious and important. They engage extremely complex questions, amongst others how the State is expected to balance its positive obligations to secure individuals against non-consensual sexual activity, and its obligations not to intervene unnecessarily between consenting sexual partners. They also raise very difficult issues of the interaction between the concept of capacity underpinning the MCA 2005 and the different concepts underpinning criminal responsibility (as to which, see here).
However, it might be thought that this decision reinforces the point that looking at matters through the prism of capacity to decide to engage in sexual relations causes both practical and legal complexities of the highest order. An oddity of JB’s case, and one upon which it might have been thought that the Supreme Court would have alighted, was that there was agreement between the local authority and the Official Solicitor on JB’s behalf, that he lacked capacity to make decisions about contact, and that it was in his best interests for a care plan to be enforced which “include[d] restrictions on his access to the local community, on his contact with third parties and on his access to social media and the internet. Under his care plan, he ha[d] 1:1 supervision when out in the community and, in particular, when in the presence of women” (paragraph 11). On the face of it, and for so long as the care plan continued to be in force, JB would never have had the opportunity to engage in sexual relations, so the question of whether he had capacity to make decisions about it might have been thought to be academic.
Similarly, in the instant case, it might be thought that the absolutely mission-critical point to determine was ZX’s capacity to make decisions as to contact with others, where one of the purposes of that contact was to have sexual relations with them. Although the judgment does not say so expressly, the expert is recorded as saying that ZX lacked capacity to make decisions about contact, and the plan contemplated could only have been based upon a conclusion that he lacked that capacity.
However, if ZK lacked capacity to make decisions about contact, and if plans were being put in place to regulate that contact, then on one view the question of whether he had capacity (in isolation) to make decisions about engaging in sexual relations would not be of the first importance. After all, what would be the difference between a situation where ZX had capacity to make decisions about engaging in sexual relations and was choosing to impose himself on others irrespective of their consent, and the situation where he lacked that capacity and was seeking to do the same? From the perspective of the State’s obligation to secure against the risk that ZX might pose to others, arguably none. From the perspective of the criminal law seeking to resolve the question of whether criminal acts had been committed, there might be a difference, but the criminal law and the MCA are asking different questions, and the entire point of the framework being sought by the local authority was to stop such acts taking place in the first place.
Reading the judgment whilst in Belfast talking for the Royal College of Psychiatrists in Northern Ireland about capacity complexities, it was also striking to see how the regime in England & Wales is (or could be) moving by way of judicial interpretation towards a capacity-based public protection regime. Public protection is an express aspect of the MCA (NI) 2016, embedded in the DoLS provisions there (the main substantive part currently in force). But the Northern Irish legislation was intended to replace standalone mental health legislation, and the public protection aspect was always clearly understood to be necessary in consequence.
Conversely, there was never any stated Parliamentary intention in England & Wales that the MCA 2005 was to replace or in some way encompass the terrain of the MHA 1983 (hence the notorious interface between the two set out in Schedule 1A to the MCA 2005). Decisions such as this (and indeed JB) make clear that we may well be well on the way to creating a fused regime by the back door, where restrictions on the basis of public protection can be justified on the basis of a lack of capacity to make decisions about contact, and the argument that it is not in a person’s best interests to carry out acts that harm others. And, at the same time, we now regularly see difficult cases, above all those concerning anorexia where the risk is to the person alone and which were once looked at through the prism of the ‘appropriate treatment’ test in the MHA 1983, put before the Court of Protection to be determined on the basis of capacity and best interests. Both of these may well be necessary and important developments, limiting the scope of the MHA 1983 (in effect) solely to those who are identified as having capacity to take the relevant decisions, but pose a risk to themselves or others on the basis of mental disorder. But it might be thought that this was something Parliament would wish to consider.
In any event, we are certainly a long way from the talk of empowerment that accompanied the launch of the MCA 2005 (even if Lucy Series has done, and continues to do, vital work in teasing out whether that language was ever justified).
