A Local Authority v TZ (No. 2) [2014] EWCOP 973

This judgment was delivered in private. The judge has given leave for this version of the judgment to be published on condition that (irrespective of what is contained in the judgment) in any published version of the judgment the anonymity of the respondent and members of his family must be strictly preserved. All persons, including representatives of the media, must ensure that this condition is strictly complied with. Failure to do so will be a contempt of court.Case No 11948023
IN THE COURT OF PROTECTION
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 01/04/2014
Before
The Honourable Mr. Justice Baker
Between
A LOCAL AUTHORITYApplicantTZRespondent
IN THE MATTER OF THE MENTAL CAPACITY ACT 2014
AND IN THE MATTER OF TZ (NO. 2)
(by his litigation friend, the Official Solicitor)
Michael Dooley (Local Authority Solicitor) for ApplicantJohn McKendrick (instructed by CVC Solicitors for Official Solicitor) for the RespondentHearing Hearing dates: 6 th and 9 th December 2013
JudgmentThe Honourable Mr. Justice Baker :Introduction
[1]On 31st July 2013, I handed down a judgment in these proceedings in the Court of Protection explaining my reasons for declaring that TZ, a 24-year-old man with mild learning disabilities, atypical autism and hyperactivity disorder, who lacks the capacity to litigate, has the capacity to consent to and engage in sexual relations. That judgment is reported under neutral citation number [2013] EWHC 2322 (COP). At that hearing, I adjourned two further issues, namely whether he has the capacity(1) to make decisions as to his contact with other people, and(2) to make decisions as to his care needs. After further assessments, those issues, and others consequential issues, were listed for a further hearing in early December 2013.[2]At that point, it was generally known that the question of capacity to consent to sexual relations had been considered by the Court of Appeal in a case in which judgment had been reserved. I therefore decided, with the agreement of the parties’ representatives, to adjourn the hearing until after 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. I was concerned that, if the Court of Appeal took a different view as to the legal test for capacity to consent to sexual relations from that adopted in my earlier judgment, it might be necessary to revisit the issues considered in both hearings. In the event, the Court of Appeal judgment, reported as IM v LM and others [2014] EWCA Civ 37, upheld the interpretation of the law concerning capacity to consent to sexual relations that I (following other judges at first instance) had adopted in these proceedings. As a result, the supplemental submissions delivered by the parties were brief. However, due to pressure of other cases, there has been a further delay in the delivery of this judgment, for which I apologise.

Background

[3]The detailed background to this case is set out in full in my earlier judgment. I therefore propose only to recite the salient facts.[4]After being removed from his birth mother at the age of two, TZ was adopted, together with his brother. In his teenage years, there were various reports of inappropriate sexual behaviour between TZ and his brother. In his early twenties, he became involved in a relationship with another man, hereafter referred to as A, by whom he was significantly ill-treated. In 2011, the local authority 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, hereafter referred to as H Home, run by an organisation specialising in offering supportive accommodation for people with a learning disability. TZ has continued to live at H Home since that date and is by all accounts very happy and settled there.[5]On 31st March 2011, Her Honour Judge Susan Darwall-Smith ordered that it was lawful and TZ’s best interests to live at H Home until further order, and further 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. In a series of reports, 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 sexual relations, whether heterosexual or homosexual. The proceedings were subsequently listed before me to determine, in particular, the issue of capacity to consent to sexual relations. Further interim orders and declarations were made pending the hearing.[6]That hearing took place in July 2013. At the outset, I concluded that, as TZ was currently content to continue to live at H Home, no decision as to residence was required so it was unnecessary to make any determination of his capacity to make decisions as to his residence. I proceeded to hear evidence from professional witnesses, including Dr X, and I also had the benefit of meeting TZ and speaking to him about the issues. In that conversation, summarised at paragraphs 45 to 49 of my earlier judgment, he confirmed to me that he had come out as gay about a year ago, having previously been uncertain as to his sexuality. As already stated, at the conclusion of the hearing I found and declared that TZ has the capacity to consent to and engage in sexual relations. I then gave directions for the preparation of supplemental assessments as to TZ’s capacity to make decisions as to contact with others and as to his care needs, and for a further hearing when those reports were available.[7]After that hearing, assessments as to his capacity to make decisions as to his care and as to contact with others were prepared by his social worker, hereafter referred to as “JS”, together with a draft support plan. Dr. X also prepared a further report, dated 18th October 2013. Those documents were before me at the adjourned hearing in December, together with a number of other documents, including progress reports from H Home.

The Issues

[8]In the event, the hearing in December took a slightly different course from that anticipated in July because of a refinement of the issues as identified by the parties. The principal focus of the latest assessments has been the issues that may arise as TZ endeavours to meet, and form intimate relations with, other men. TZ is clear that he wishes to have the opportunity to have these experiences, and all professionals involved in supporting him agree that he should be given that opportunity. The question is whether he had the capacity in respect of decisions that may have to be made when that opportunity arises.[9]Following discussion at the hearing, it was agreed that the issues now arising can be summarised as follows(1) What is the relevant decision in respect of which the question of capacity arises?(2) Does TZ lack capacity in respect of that decision?(3) If yes, what orders should be made in TZ’s best interests?(4) Should the court appoint the local authority to act as TZ’s welfare deputy?

What is the relevant decision?

[10]Under s. 2(1) of the Mental Capacity Act 2005, (“the MCA”), “a person lacks capacity in relation to a matter if at the material time he is unable to make a decision for himself in relation to the matter because of an impairment of, or a disturbance in the functioning of, the mind or brain”. It is therefore necessary, first, to identify the relevant decision before proceeding to consider whether the person has the capacity to make the decision.[11]In PC and NC v City of York Council [2013] EWCA Civ 478, at paragraph 35, McFarlane LJ (with whom the other members of the court agreed) said; “The determination of capacity under MCA 2005 Part 1 is decision specific. Some decisions, for example agreeing to marry or consenting to divorce, are status or act specific. Some other decision, for example whether P should have contact with a particular individual, may be person specific. But all decisions, whatever their nature, fall to be evaluated within the straightforward and clear structure of MCA 2005, sections 1 to 3, which requires the court to have regard to “a matter” requiring “a decision”. There is neither need nor justification for the plain words of the statute to be embellished. I do not agree with the Official Solicitor’s submission that absurd consequences flow from a failure to adopt either an act-specific or a person-specific approach to each category of decision that may fall for the consideration. To the contrary, I endorse [the local authority counsel]’s argument to the effect that removing the specific factual context from some decisions leaves nothing for the evaluation of capacity to bite upon.”[12]On behalf of the local authority, Mr Dooley argued initially that the relevant decision in this case was whether TZ had the capacity to make decisions regarding contact with others, either generally or with one or more named individuals. The difficulty with this formulation is that it does not focus on what McFarlane LJ described as the “specific factual context” arising at this stage, namely the prospect of future contact of a personal and intimate nature between TZ and an individual or individuals as yet unidentified. It is not asserted that TZ lacks capacity generally to make decisions as to contact. Equally, there are at present no named individuals who can be identified with whom he may have contact of a personal intimate nature.[13]As a result, in closing submissions, Mr Dooley reformulated his argument so as to contend that the relevant decision arising at this stage is the decision concerning risk around contact. Mr. Dooley submitted that TZ lacked the capacity to assess risk to himself from contact with others. Developing this argument in oral submissions Mr Dooley pointed out that a “decision” is defined as “a conclusion or resolution reached after consideration”. He submitted that risk is the live issue in this case, given the current situation in which the court has determined that TZ has capacity to consent to sexual relations and that TZ now wishes to have contact with other men which may include intimate sexual relations. Mr Dooley submitted that the key question in this context was whether TZ lacked capacity to assess risks to himself from such contact.[14]In reply, Mr McKendrick on behalf of the Official Solicitor characterised the relevant decision arising at this stage in a different way. He submitted that the key question was whether TZ could decide what support he requires when meeting unfamiliar adults. Like Mr. Dooley, he rejected the suggestion that the relevant decision could be characterized simply as a decision about contact in general or with any specific individuals. He submitted that the better analysis is that the relevant decision at this stage was whether TZ can make a decision about whether or not to receive care and support when meeting unfamiliar adults. Mr McKendrick argued that assessment of risk is not, as Mr Dooley contends, the decision in question but rather part of the information relevant to making the decision.[15]I find myself unable to accept either submission without some qualification. On the one hand, I do not agree with Mr. McKendrick and the Official Solicitor that the relevant decision can be characterised merely as whether TZ can decide what support he requires when meeting unfamiliar adults. The question of support required when meeting unfamiliar adults only arises if he lacks capacity in making decisions when meeting unfamiliar adults.[16]On the other hand, I do not accept Mr. Dooley’s formulation. I agree with Mr McKendrick that the assessment of risk is not the decision but rather part of the information relevant to making the decision This is indeed expressly set out in s. 3(4) of the MCA which provides that information relevant to a decision includes information about the reasonably foreseeable consequences of(a) deciding one way or another, or(b) failing to make the decision. It seemed to me that Mr Dooley in fact acknowledged this point himself in the course of his oral submissions when he observed that the decision must include consideration of the benefits and disbenefits arising from that decision. Thus the analysis of risk is part of the decision-making process, not the decision itself.[17]That analysis is required in situations when TZ comes into contact with certain types of people, namely those with whom he wishes or may wish to have sexual relations. That is the “specific factual context” in this case. Thus the relevant decision is not the decision whether to have contact with people generally. That is too broad. It is not a decision whether to have contact with a named individual. Since no individual has been named, that is too narrow. The primary relevant decision is whether or not an individual with whom TZ may wish to have sexual relations is safe. The secondary relevant decision is whether, in those circumstances, he then has the capacity to make a decision as to the support he requires.[18]Accordingly, the questions arising here are:(1) whether TZ has the capacity to make a decision whether or not an individual with whom he may wish to have sexual relations is safe, and, if not,(2) whether he has the capacity to make a decision as to the support he requires when having contact with an individual with whom he may wish to have sexual relations.

Does TZ have these capacities?

[19]Section 1 of MCA stipulates three principles relating to capacity.[20]First, a person must be assumed to have capacity unless it is established that he lacks capacity: s. 1(2). The burden of proof therefore lies on the party asserting that P does not have capacity. In this case, therefore, the burden of proof lies on the local authority to prove that TZ lacks the capacities identified above. The standard of proof is the balance of probabilities: s. 2(4).[21]Secondly, a person is not to be treated as unable to make a decision unless all practicable steps to help him to do so have been taken without success: s. 1(3). The Mental Capacity Act 2005 Code of Practice stresses in paragraph 4.16 that “it is important not to assess someone’s understanding before they have been given relevant information about a decision”. “Relevant information” is said in paragraph 4.19 to include “what the likely consequences of a decision would be (the possible effects of deciding one way or another) – and also the likely consequences of making no decision at all”. Paragraph 4.46 of the Code of Practice adds that “it is important to assess people when they are in the best state to make the decision, if possible”.[22]Thirdly, a person is not to be treated as unable to make a decision merely because she makes an unwise decision: s. 1(4). Paragraph 4.30 of the Code of Practice emphasises the importance of acknowledging the difference between, on the one hand, unwise decisions and, on the other hand, decisions based on a lack of understanding of risks or inability to weigh up the information about a decision.[23]As set out above, the Act provides that a person lacks capacity in relation to a matter if at the material time he is unable to make a decision for himself in relation to the matter because of an impairment of, or disturbance in the functioning of, the mind or brain: s. 2(1). Thus the test for lacking capacity involves two stages. The first stage, often called the “diagnostic test”, is whether the person has such an impairment or disturbance. The second stage, often known as the “functional test”, is whether the impairment or disturbance renders the person unable to make the decision. S. 3(1) provides that, for the purposes of s. 2, a person is unable to make a decision for himself if he is unable(a) to understand the information relevant to the decision;(b) to retain that information;(c) to use or weigh that information as part of the process of making the decision, or(d) to communicate his decision whether by talking, using sign language or any other means.[24]In addressing the issues of capacity in this case, I bear in mind a number of other points of law.[25]Importantly, capacity is both issue-specific and time specific. A person may have capacity in respect of certain matters but not in relation to other matters. Equally, a person may have capacity at one time and not at another. The question is whether, at the date on which the court is considering capacity, the person lacks the capacity in issue.[26]Next, as Macur J (as she then was) observed in LBL v RYJ [2010] EWHC 2664 (Fam) (at paragraph 24), “it is not necessary for the person to comprehend every detail of the issue … it is not always necessary for a person to comprehend all peripheral detail .…” The question is whether the person under review can “comprehend and weigh the salient details relevant to the decision to be made” (ibid, paragraph 58).[27]Furthermore, in assessing the question of capacity, the court must consider all the relevant evidence. Clearly, the opinion of an independently-instructed expert will be likely to be of very considerable importance, but in addition the court in these cases will invariably have evidence from other professionals who have experience of treating and working with P, the subject of the proceedings, and sometimes from friends and family and indeed from P himself.. As Charles J observed (in the analogous context of care proceedings) in A County Council v KD and L [2005] EWHC 144 (Fam) [2005] 1 FLR 851 at paras 39 and 44, “it is important to remember(i) that the roles of the court and the expert are distinct and(ii) it is the court that is in the position to weigh the expert evidence against its findings on the other evidence… the judge must always remember that he or she is the person who makes the final decision”. Thus, when assessing the ability of a person to (a) understand the information relevant to the decision (b) retain that information, and (c) use or weigh that information as part of the process of making the decision, the court must consider all the evidence, not merely the views of the independent expert.[28]Finally, I reiterate the further point, to which I have alluded in earlier decisions, including PH v A Local Authority, Z Ltd and R [2011] EWHC 1704 (Fam) and CC v KK [2012] EWHC 2136 (COP). In a case involving a vulnerable adult, there is a risk that all professionals involved with treating and helping that person – including, of course, a judge in the Court of Protection – may feel drawn towards an outcome that is more protective of the adult and thus, in certain circumstances, fail to carry out an assessment of capacity that is detached and objective.[29]With those principles in mind, I turn to the question whether TZ has the capacities identified above, namely to make a decision whether or not the individual with whom he may wish to have sexual relations is safe, and, if not, to make a decision as to the support he requires when having contact with an individual with whom he may wish to have sexual relations. The principal evidence on which I must decide whether TZ has these capacities is set out in the reports and oral evidence of JS, who is TZ’s allocated social worker and Dr X, the consultant psychiatrist who has carried out assessments of TZ’s capacity.[30]In his supplemental report for the purposes of this hearing, Dr X reiterated his opinion that TZ suffers from a complex neuro-developmental disorder consisting of mild learning disabilities, autistic spectrum disorder and hyperactivity disorder in partial remission. In his opinion, as a result of these conditions, TZ meets the criteria for the diagnostic test under s. 2(1) of the MCA, that is to say that he has an impairment of, or a disturbance in the functioning of, the mind or brain. I accept his opinion on this issue. The diagnostic test is therefore satisfied. The question, therefore, is whether the functional test is satisfied.[31]JS carried out her assessment of TZ in September 2013. The issues covered in this assessment were somewhat wider than those which, as explained above, I now consider to be relevant, but her reports do contain important information on which the court can rely in determining whether he has the capacities currently under review.[32]JS sets out the results of her assessments in two reports, one addressing TZ’s capacity regarding his contact with other people and, separately, regarding his care and support. So far as contact capacity was concerned, JS found that TZ had the ability to understand and retain information relating to the decision to be made, but that he did not have the ability to use or access that information whilst considering the decision. He told JS repeatedly that he wanted to find a partner and was not good at knowing whether they were okay or not. JS observed that he appeared to have strong perceptions that other males show an interest in him when this may not in fact be the case. She observed that there also appeared to be some variability in his consistency at taking in, remembering and interpreting information. His process of taking in information about how a person presents, what they say, how they are with him, is coloured by his learning disability, impulsivity and autistic features. JS concluded that; “based on these issues, I believe [TZ] is unable to weigh up the pros and cons of anyone he comes into contact with. He is unable to recognise anyone who might cause him harm. Being able to risk assess another person’s integrity is an abstract concept which TZ is unable to do.”[33]In her further assessment as to capacity to make decisions regarding his care and support, JS concluded that TZ had the ability to understand and retain the information and also to use or access the information whilst considering his decision. She found that he was able to relate the need for support to keep himself safe regarding his contact with others. He acknowledged he was not good about knowing who is okay and who is not okay. However he understands in general terms what the support is for and that he needs it for good relationships to keep himself safe. He said that he was happy to accept support with practical tasks and relationships.[34]In her report, JS concluded that, taking everything into account, TZ does have capacity with regard to support and services. In her oral evidence, however, there was some shift in her view on this point. She said that, if TZ was in the right mood, he can understand why he needs support. She thought, however, that his capacity in this respect was variable. A lot depends on how he is feeling at the time and his frame of mind. She thought that TZ tended to rely on his support worker when making decisions about safety.[35]In his report, Dr X observed that recognising risky situations and identifying potentially risky individuals requires a degree of social awareness and an ability to “read between the lines” in an attempt to recognise situations that may be risky. He observed that TZ is socially naïve and has concrete thinking both as a result of his autism and his learning disabilities. In addition, he lacks the ability to interpret subtle details in a person’s communications, either verbal or non-verbal. Dr X gave an example of TZ telling him that, in order to tell whether a person is “nice or nasty”, he would ask the person concerned. He concluded that TZ lacked the capacity to make decisions about his contact with others, because he is unable to understand the relevant information. He thought that there was the potential for an education and training programme and care plan, over a period of years, to assist him in gaining these capacities.[36]Dr X was further asked to consider whether TZ has capacity to make decisions about how to manage risks to himself from contact with others including, inter alia, by seeking guidance and support from his carers. Dr X observed that, as the ability to assess risk is a prerequisite to managing risk, it was his opinion that TZ’s main difficulty in managing risk to himself from contact with others arises from his difficulty in assessing risk as described above. He noted that TZ’s history demonstrated that he has been compliant with the regime of support in the community. He added, however, that this had been whilst a member of staff was escorting him. Given his impulsivity and intellectual impairment, he thought he would be unlikely to seek such help if a member of staff is not immediately available. Cross-examined in oral evidence by Mr McKendrick, Dr X said that he did not think that the fact that TZ is currently complying with support means that he understands the need for that support. The fact that he says that he knows he is no good at knowing who is or is not safe does not mean that he would always accept the need for support. In addition, Dr X thought it quite likely that in due course TZ would ask the support worker to leave. In his view, TZ lacks the capacity to decide what support he requires.

Further discussion and conclusion on capacity

[37]I find on a balance of probabilities that TZ does not have the capacity to decide whether a person with whom he may wish to have sexual relations is safe. I base that finding on the detailed assessments of TZ carried out by JS and Dr X, both of whom have had an opportunity to assess him over a period of time. These assessments include extensive conversations with TZ in which he has himself acknowledged that he lacks this capacity. In particular, while he has the ability to understand and retain information, he lacks the ability to use or weigh up the information, including the ability to assess risk and, in the language of s. 3(4), to understand the reasonably foreseeable consequences of the decision. This is, in my judgment, a good example of the distinction identified in paragraph 4.30 of the Code of Practice between, on the one hand, unwise decisions, which a person has the right to make, and, on the other hand, decisions based on a lack of understanding of risks and the inability to weigh up the information concerning a decision.[38]I have also borne in mind s. 1(2) – that a person is not to be treated as unable to make a decision unless all practicable steps to help him to do so have been taken without success. Having regard to Dr X’s advice, however, I consider that there is no immediate prospect of extending TZ’s capacity via a programme of education. Such a programme must, of course, be an integral part of the best interests care plan which would be put in place as a result of a declaration of incapacity.[39]The evidence therefore establishes that he lacks the capacity to decide whether or not any individual with whom he may wish to have a sexual relationship is safe. As to the second capacity in issue, JS concluded in her report that he did have the capacity to make decisions regarding his care and support. In oral evidence, however, JS qualified this opinion, saying that TZ can understand why he needs support “if he is in the right frame of mind”, and that his capacity in this respect is variable. She said that sometimes he is more open about taking things on board than at other times. Dr X concluded that TZ lacked this capacity. He thought that TZ’s current compliance with support did not mean that he understands the need for that support and thought it quite likely that at some stage he would ask a support worker to leave.[40]Notwithstanding the view set out in JS’s written assessment, I conclude after close analysis that TZ does not have the capacity to decide what support he requires when having contact with an individual with whom he may wish to have sexual relations.[41]In reaching these conclusions as to capacity, I have reminded myself, again, of the need to avoid what could be called the vulnerable person’s protective imperative – that is to say, the dangers of being drawn towards an outcome that is more protective of the adult and thus fail to carry out an assessment of capacity that is detached and objective. I do not consider that I have fallen into that trap in this case.

What orders should be made in TZ’s best interests?

[42]Section 16(1) to (3) of the MCA provides: “(1) This section applies if a person (“P”) lacks capacity in relation to matter or matters concerning(a) P’s personal welfare or(b) P’s property and affairs. (2) The court may (a) by making an order, make the decision or decisions on P’s behalf in relation to the matter or matters, or (b) appoint a person (a “deputy”), to make decisions on P’s behalf in relation to the matter or matters. (3) The powers of the court under this section are subject to the provisions of this Act, and in particular, to sections 1, (the principles) and 4 (best interests).” (a) P’s personal welfare or (b) P’s property and affairs. (a) by making an order, make the decision or decisions on P’s behalf in relation to the matter or matters, or (b) appoint a person (a “deputy”), to make decisions on P’s behalf in relation to the matter or matters.[43]Section 1 identifies two principles to be applied whenever an act is done, or decision made, on behalf of a person who lacks capacity. First, the act or decision must be done or made in his best interests: s.1(5). Secondly, before the act is done, or decision made, regard must be had to whether the purpose for which it is needed can be as effectively achieved in a way that is less restrictive of the person’s rights and freedom of actions: s.1(6).[44]Section 4 sets out a checklist of relevant factors when determining for the purposes of the Act what is in a person’s best interests. Of particular relevance in this case,(1) the determination must not be made merely on the basis of a condition of his, or an aspect of his behaviour, which might lead others to make unjustified assumptions about what might be in his best interests: s.4(1)(b);(2) the person making the determination must, so far as reasonably practicable, permit and encourage the person to participate as fully as possible in any act done for him or decision taken affecting him: s.4(4);(3) the person making the determination must consider, so far as reasonably ascertainable, the person’s wishes and feelings and the beliefs and values that would be likely to influence his decision if he had capacity: s.4(6).[45]On this last point, Mr. McKendrick reminds me of the dicta of Munby J in ITW v Z [2009] EWHC 2525 (Fam) at paragraph 35:
“First, P’s wishes and feelings will always be a significant factor to which the court must pay close regard …. Secondly, the weight to be attached to P’s wishes and feelings will always be case-specific and fact-specific …. Thirdly, in considering the weight and importance to be attached to P’s wishes and feelings, the court must … have regard to all the relevant circumstances … [which] will include … (a) the degrees of P’s incapacity … (b) the strength and consistency of the views being expressed by P; (c) the possible impact on P of knowledge that [his] wishes and feelings are not being given effect to … (d) the extent to which P’s wishes and feelings are, or are not, rational, sensible, responsible and, pragmatically capable of sensible implementation in the particular circumstances; and (e) crucially, the extent to which P’s wishes and feelings, if given effect to, can properly be accommodated within the court’s overall assessment of what is in [his] best interests.”
[46]Mr. McKendrick further submits, rightly, that in applying the principle in s.1(6) and generally, the Court must have regard to TZ’s human rights, in particular his rights under article 8 of ECHR to respect for private and family life. As the European Court of Human Rights observed in Niemitz v Germany (1993) 16 EHRR 97 at para 29, “private life” includes, inter alia, the right to establish relationships with other human beings. This has been reiterated on a number of occasions, see for example Pretty v UK (2002) EHRR 1 at paragraph 61 and in Evans v UK (2008) 46 EHRR 34 at paragraph 71. There is a positive obligation on the state to take measures to ensure that his private life is respected, and the European Court has stated that “these obligations may involve the adoption of measures designed to secure respect for private life even in the sphere of the relations of individuals between themselves”: Botta v Italy (1998) 26 EHRR 241 paragraph 33.[47]These principles plainly apply when considering what steps should be taken to protect someone, such as TZ, who has the capacity to consent to sexual relations but lacks both the capacity to make a decision whether or not an individual with whom he may wish to have sexual relations is safe and the capacity to make a decision as to the support he requires when having contact with such an individual. In such circumstances, the state through the local authority is under a positive obligation to take steps to ensure that TZ is supported in having a sexual relationship should he wish to do so.[48]In passing, it should be noted that this is consistent with the provisions of the United Nations Convention on the Rights of Persons with Disabilities, (ratified by the UK in 2009 although not yet incorporated into English law) and in particular article 23 which requires states to “take effective and appropriate measures to eliminate discrimination against persons with in all matters relating to marriage, family, parenthood and relationships, on an equal basis with others”.[49]In addition, the state is under an obligation to take steps to protect TZ from harm. In this context, as so often, the way forward is illuminated by observations of Munby J, as he then was, on this occasion in Re MM (An Adult) [2007] EWHC 2003 (Fam). In that case (decided under the inherent jurisdiction), the Court was concerned with the approach to be adopted in a case of a person who had capacity to consent to sexual relations but lacked the capacity to make decisions about contact with a long-term partner. In such circumstances, Munby J held that “the court … is entitled to intervene to protect a vulnerable adult from the risk of future harm – the risk of future abuse or future exploitation – so long as there is a real possibility, rather than a merely fanciful risk, of such harm. But the court must adopt a pragmatic, common sense and robust approach to the identification, evaluation and management of perceived risk” (paragraph 119).[50]The following much-quoted paragraph is particularly relevant:
“A great judge once said, ‘all life is an experiment’, adding that ‘every year if not every day we have to wager our salvation upon some prophecy based upon imperfect knowledge (see Holmes J in Abrams v United States (1919) 250 US 616 at 630). The fact is that all life involves risk, and the young, the elderly and the vulnerable, are exposed to additional risks and to risks they are less well equipped than others to cope with. But just as wise parents resist the temptation to keep their children metaphorically wrapped up in cotton wool, so too we must avoid the temptation always to put the physical health and safety of the elderly and the vulnerable before everything else. Often it will be appropriate to do so, but not always. Physical health and safety can sometimes be brought at too high a price in happiness and emotional welfare. The emphasis must be on sensible risk appraisal, not striving to avoid all risk, whatever the price, but instead seeking a proper balance and being willing to tolerate manageable or acceptable risks as the price appropriately to be paid in order to achieve some other good – in particular to achieve the vital good of the elderly or vulnerable person’s happiness. What good is it making someone safer if it merely makes them miserable?”
[51]In the light of these principles and dicta, what steps should this court now take in TZ’s best interests?[52]On behalf of the Official Solicitor, Mr. McKendrick asserts that the challenge for the parties and the court is to develop a best interests framework which permits TZ sufficient autonomy of decision-making and respects his right to a private life whilst balancing the need to protect him from harm. He identifies three options:(1) take no best interests decision at this stage but react should TZ find himself in a situation when he is the subject of harm or at risk of harm;(2) require the applicant local authority to draft a care plan and submit it to the court for approval;(3) appoint a welfare deputy to make decisions on TZ’s behalf. Neither party is advocating for the first option. Both parties agree that the court should direct the local authority to file a care plan. The issues are, first, as to the contents of that plan and, secondly, whether a welfare deputy should be appointed.[53]The local authority has filed a draft care support plan. The Official Solicitor has made a number of observations about that plan. There is considerable common ground between the two parties, but some differences remain.[54]What follows are some proposals by the court for the sort of measures that should be included in the plan. Decision-making for incapacitated adults should, as far as possible, be a collaborative exercise. The observations as to the contents of the plan should be seen as part of that process.[55]I propose that the plan should contain the following elements:(a) basic principles;(b) education and empowerment;(c) support;(d) intervention;(e) decision-making. Under this last heading, I shall consider the local authority’s application for the appointment of a deputy.

(a) Basic principles

[56]The basis for the plan is uncontroversial and can be summarised as follows.(1) TZ lives at H Home. In due course, he may move to a step-down facility and, in the long run, into supported living.(2) He will have available to him a number of hours of 1 : 1 support every week. Currently that is fixed at 32 hours.(3) He has capacity to consent to and enter into sexual relations. He has the right to establish relationships with other human beings and wishes to meet other men with whom he may have sexual relations.(4) He lacks the capacity to make a decision whether or not an individual with whom he may wish to have sexual relations is safe and the capacity to make a decision as to the support he requires when having contact with such an individual.(5) The local authority and the Court are under a positive obligation to ensure that he is supported in having a sexual relationship should he wish to do so, but also to ensure, as far as possible, that he is kept safe from harm.(6) The purpose of the plan is therefore to identify the support to be provided to assist him in developing a sexual relationship without exposing him to a risk of harm.

(b) Education and empowerment

[57]When delivering a plan to address TZ’s lack of capacity to decide whether someone with whom he may wish to have sexual relations is safe, the principal focus should be on educating and empowering him to make these decisions. Any provisions in the plan directed at protecting him and restricting his contact should be seen as interim measures until the time when he acquires skills to make such decisions for himself.[58]To that end, the plan should contain the following features.[59]First, a named worker should be identified and tasked with the specific role of overseeing a programme of education and empowerment. That professional should be someone suitably trained and equipped in these matters. He or she should identify all resources available for the assessment of risk and educating persons with limited capacities to identify and assess risk. TZ should be supported in accessing these education programmes and ways should be identified to assess and check the development of his understanding of these issues. At present, this support is provided by GB, a learning disabilities nurse, who has been assisting TZ to develop his social and interpersonal skills. Evidence to date suggests that TZ does respond to education of this type. Dr X thought it might take 4 to 5 years for TZ to acquire capacity by these means, but the local authority believes that this may be unduly pessimistic.[60]Secondly, advice and assistance should be sought from LGBT groups, who are likely to have resources which TZ and his support workers will find helpful. It would be particularly helpful to identify someone within the lesbian and gay community who can provide TZ with peer support.[61]Thirdly, his support worker should devise a programme of social activities to which TZ can be introduced. This will involve visiting pubs, cafes, clubs and other venues, checking to see if the milieu is likely to be of interest to TZ, and one in which he is likely to be safe.

(c) Support

[62]Alongside these measures of education and empowerment, the plan should set out in practical terms the support TZ will receive when he goes out with a view to meeting individuals with whom he may wish to have sexual relations.[63]First, the plan should specify the level of one to one support that TZ will receive in the community, currently fixed at 32 hours a week.[64]Secondly, the plan should specify in detailed terms the steps to be taken to provide some support for TZ in these circumstances. Some of these practical measures are set out in the draft support plan prepared by JS. This provides, for example, that, prior to going out, the support worker will remind TZ of appropriate behaviour which would include: not staring at people; not using exaggerated body language and posture to try to attract the attention of a man he might ‘fancy’; not to make comments about sex and sexuality that can be easily heard or are directed at certain men. Support workers need to remind TZ of these points whenever required. The plan should provide, as set out in the draft plan, that the aim of the support should be to assess and step back when they feel that TZ is managing himself appropriately and is safe. In this way, the support will become gradually more ‘light touch’. The overall aim of the stepping back is to enable TZ to develop his independent skills and to have the least restrictive level of support possible.[65]Mr McKendrick submits, and I agree, that TZ must have some “space” to make decisions for himself, even if this involves making mistakes, to assist him to learn (as far as he can) from the consequences of those decisions. Mr Dooley indicated that the local authority agreed that learning through experience is critical for TZ.[66]Mr McKendrick further submits, and I accept, that, should TZ meet a stranger, he is entitled to have private time with that person and support staff should intervene only if there is an identified risk of that person being abusive towards TZ. I agree with the Official Solicitor that the local authority and its support staff cannot interview or ‘vet’ anyone with whom TZ wishes to communicate and cannot assume that everyone he speaks to is likely to present a risk of abuse. Mr Dooley stated that the local authority’s position is that, if there is a problem in these circumstances, there will need to be a risk assessment to determine whether intervention is required. Having identified that intervention is required, the next step would be to consider the least restrictive intervention necessary to ensure that TZ is safe.[67]In the event that TZ decides he wishes to spend the night with someone, the care plan must provide that a private space can be made available. H Home has now indicated that he will be permitted to have a visitor to stay subject to the proviso that any visitor would have to be subject to safeguarding checks to protect other residents. A similar provision would be made in the event that TZ moved to a step-down facility.[68]If TZ meets someone and develops a relationship, or if he says he wishes to leave H Home and cohabit with another person, a specific capacity assessment will be required to determine whether he has the capacity to make a decision about contact with that person. If the outcome is that he has capacity, the sexual relationship should be facilitated, unless it is concluded that there is a significant risk of harm. If the assessment concludes that he lacks that capacity, or that there is a likelihood that he will suffer significant harm as a result of a relationship, a further application will have to be made to the court. If the court accepts that he lacks capacity, a best interests decision will then be made. If the court concludes that he has capacity, but that he is at risk of harm, it may be that the court would resort to protective powers under its inherent jurisdiction as to vulnerable adults. At all stages, of course, TZ must be assisted to participate in the decision-making process.

(d) Intervention

[69]In addition to identifying the support to be provided, the plan must clearly delineate the circumstances in which care workers may intervene to protect TZ and the steps they are entitled to take when intervening.[70]On behalf of the Official Solicitor, Mr McKendrick submits, and I accept, that it is not the role of the local authority staff to vet TZ’s sexual partners. They must not deny him private time with a proposed sexual partner simply because they consider that partner is unsuitable, unless there is a clearly identified risk that the proposed partner poses a real risk of abuse to TZ during their contact. As the Official Solicitor submits, the assessment of abuse must be rigorous and evidence-based, or, adopting the phrase used by Munby J in Re MM, (supra) “pragmatic, common sense and robust”. As the Official Solicitor points out, capacitous adults also run the risk of abuse and harm. The adults protecting TZ must be given the tools to assist him, because of his vulnerabilities, but they cannot act in his best interests by attempting to eliminate all risks of harm. (“What good is making someone safe if it merely makes them miserable?”)[71]As JS has set out in her draft support plan, if TZ says he wants to go off with someone he has just met, the care workers would try to dissuade him, reminding him of the staged approach to new relationships previously discussed and agreed. In the event that he refused to listen to support workers in those circumstances, and where there were concerns regarding the risk of harm, the care worker involved should immediately alert management, who would in turn ensure that legal representatives were informed. A decision would then be taken as to whether the police should be informed, and/or whether an application should be made to the Court of Protection. (e). Decision-making - should a deputy be appointed?[72]Plainly, there are a number of decisions that may need to be taken on behalf of TZ under the care plan. Broadly, they fall into two categories – immediate decisions, for example in the event that TZ finds himself in a situation that is unsafe, and long term decisions, for example, in the event that he wishes to co-habit with another man.[73]The local authority proposes that immediate decisions could be made by a welfare deputy appointed under the MCA and that a senior official employed by the local authority, namely the Director of Adult Care Health and Wellbeing, should be appointed as TZ’s deputy. The Official Solicitor does not agree with this application. His proposal, as I understand it, is that immediate decisions can be taken by members of TZ’s support staff. Both parties are of the view that long term decisions should taken by the Court of Protection.[74]Section 16 of the MCA makes further provision about the appointment of a deputy in subsections (4) and (5):
“(4) When deciding whether it is in P’s best interests to appoint a deputy, the court must have regard (in addition to the matters mentioned in section 4) to the principles that (a) a decision by the court is to be preferred to the appointment of a deputy to make a decision and (b) the powers conferred on a deputy should be as limited in scope and duration as is reasonably practicable in the circumstances. (5) The court may make such further orders or give such directions, and confer on a deputy such powers or impose on him such duties, as it thinks necessary or expedient for giving effect to, or otherwise in connection with, an order or appointment made by it under sub-section (2)” (a) a decision by the court is to be preferred to the appointment of a deputy to make a decision and (b) the powers conferred on a deputy should be as limited in scope and duration as is reasonably practicable in the circumstances. (5) The court may make such further orders or give such directions, and confer on a deputy such powers or impose on him such duties, as it thinks necessary or expedient for giving effect to, or otherwise in connection with, an order or appointment made by it under sub-section (2)”
[75]It is also important to note the restrictions on deputies imposed by s.20. S.20 (2) (a) provides that “nothing in s.16(5) or 17 permits a deputy to be given power … to prohibit a named person from having contact with P”. S.20 (7) permits a deputy to do an act that is intended to restrain P but only if four conditions, set out in subsections (8) to (11), are satisfied.[76]The Code of Practice contains relevant guidance on the appointment and role of deputies. Under the heading “Who can be a decision-maker?” the Code gives further guidance as follows:
“5.8 Under the Act many different people may be required to make decisions or act on behalf of someone who lacks capacity to make decisions for themselves. The person making the decision is referred to throughout this chapter and in other parts of the Code as the “decision-maker”, and it is the decision-maker’s responsibility to work out what would be in the best interests of the person who lacks capacity. • For most day to day actions or decisions, the decision-maker would be the carer most directly involved with the person at the time. • Where the decision involves the provision of medical treatment, the doctor or other member of health care staff responsible for carrying out the particular treatment or procedure is the decision-maker. • Where nursing or paid care is provided the nurse or paid carer will be the decision-maker. • If a Lasting Power of Attorney (or Enduring Power of Attorney) has been made and registered, or a deputy has been appointed under a court order, the attorney or deputy will be the decision-maker, for decisions within the scope of their authority.” • For most day to day actions or decisions, the decision-maker would be the carer most directly involved with the person at the time. • Where the decision involves the provision of medical treatment, the doctor or other member of health care staff responsible for carrying out the particular treatment or procedure is the decision-maker. • Where nursing or paid care is provided the nurse or paid carer will be the decision-maker. • If a Lasting Power of Attorney (or Enduring Power of Attorney) has been made and registered, or a deputy has been appointed under a court order, the attorney or deputy will be the decision-maker, for decisions within the scope of their authority.”
[77]Under the heading “What are the rules for appointing deputies?” the Code next gives the following guidance inter alia:
“8.31 Sometimes it is not practicable or appropriate for the court to make a single declaration or decision. In such cases, if the court thinks that somebody needs to make future or ongoing decisions for someone whose condition makes is likely they will lack capacity to make some further decisions in the future, it can appoint a deputy to act for and make decisions for that person. A deputy’s authority should be as limited in scope and duration as possible…”
[78]Under the subheading “Personal welfare (including health care)” the Code states: “8.38 Deputies for personal welfare decisions will only be required in the most difficult cases where:• important and necessary actions cannot be carried out without the court’s authority or• there is no other way of settling the matter in the best interests of the person who lacks capacity to make particular welfare decisions. 8.39 Examples include when:• someone needs to make a series of linked welfare decisions over time and it would not be beneficial or appropriate to require all of those decisions to be made by the court. For example, someone (such as a family carer) who is close to a person with profound and multiple learning disabilities might apply to be appointed as a deputy with authority to make such decisions.• the most appropriate way to act in the person’s best interests is to have a deputy, who will consult relevant people but have the final authority to make decisions• there is a history of serious family disputes that could have a detrimental effect on the person’s future care unless a deputy is appointed to make necessary decisions• the person who lacks capacity is felt to be at risk of serious harm if left in the care of family members. In these rare cases, welfare decisions may need to be made by someone independent of the family, such as a local authority officer. There may even be a need for an additional court order prohibiting those family members having contact with that person”.• important and necessary actions cannot be carried out without the court’s authority or• there is no other way of settling the matter in the best interests of the person who lacks capacity to make particular welfare decisions. 8.39 Examples include when:• someone needs to make a series of linked welfare decisions over time and it would not be beneficial or appropriate to require all of those decisions to be made by the court. For example, someone (such as a family carer) who is close to a person with profound and multiple learning disabilities might apply to be appointed as a deputy with authority to make such decisions.• the most appropriate way to act in the person’s best interests is to have a deputy, who will consult relevant people but have the final authority to make decisions• there is a history of serious family disputes that could have a detrimental effect on the person’s future care unless a deputy is appointed to make necessary decisions• the person who lacks capacity is felt to be at risk of serious harm if left in the care of family members. In these rare cases, welfare decisions may need to be made by someone independent of the family, such as a local authority officer. There may even be a need for an additional court order prohibiting those family members having contact with that person”.[79]Thus the Act and Code create a hierarchy of decisions and decision makers. The vast majority of decisions are taken by those individuals involved in the care, treatment and support of P, either individually, or collaboratively, without application to the court and without any individual or group of individuals being given any special status such as deputy. More serious decisions may be referred to the court which, under s. 16, may either make the decision itself or appoint a deputy to do so. The terms of section 16(4) are clear. A decision by the court is to be preferred to the appointment of a deputy to make the decision and the powers conferred on a deputy should be as limited in scope and duration as is reasonably practicable in the circumstances. In certain cases, as explained in paragraphs 8.38 and 8.39 of the Code, it will be more appropriate to appoint a deputy. But because it is important that such decisions should wherever possible be taken collaboratively and informally, such appointments must be as limited in scope and duration as is reasonably practicable.[80]On behalf of the local authority, Mr Dooley submitted that the purpose of the appointment of a personal welfare deputy would be to authorise those elements in the plan that may need to be exercised to safeguard TZ in the event that the reduced levels of support and supervision of his contact with others may lead him to situations of risk. In cases where the risk arises from contact with named individuals, so that s. 20 precluded any powers to prevent contact being exercised by a deputy, it would be necessary to make an application to the court for an injunctive order, but in cases where the concerns arose because of unnamed individuals, such an application might not be possible. The local authority sees the appointment of a deputy as in keeping with the greater flexibility required in these circumstances, and also as part of the support being offered to TZ to provide greater independence of living and the means to acquire through experience the skills that will address the deficits in his functional capacity to make decisions about risk in his contact with others.[81]On behalf of the Official Solicitor, Mr McKendrick submits that the appointment of a welfare deputy is both an unnecessary and disproportionate intrusion into TZ’s right to respect for his private life, and contrary to his best interests.[82]I do not consider that this is an appropriate case for the appointment of a welfare deputy. The Code clearly provides that deputies for personal welfare decisions will only be required in the most difficult cases (paragraph 8.38) and that, for most day to day actions or decisions, the decision-maker should be the carer most directly involved with the person at the time (paragraph 5.8). That is simply a matter of common-sense. If a situation arises in which TZ is perceived to be at risk, a decision needs to be taken by the person on the ground who is giving him support. It would be impractical to refer the decision to anyone else, either the Court or a deputy. Any decision that has to be taken arising out of an immediate risk of harm should be taken, so far as possible, collaboratively and informally by TZ’s care worker.[83]The question arises as to the course to be followed if the support worker is unable to extract TZ from a situation where he is at immediate risk of harm. The MCA does permit a deputy to restrain P if certain conditions are satisfied: see s.20 (8) to (11). Parliament has expressly provided, however, that a deputy cannot make a decision preventing contact between an incapacitated adult and a named individual. By the time action is needed to remove TZ from a situation where there is a risk of harm, the individual or individuals who are the source of the risk will in all probability be identified or identifiable, so a deputy would be unable lawfully to prevent that contact with or without using restraint. If the situation cannot be resolved by the support worker, consideration must then be given to applying to the court for injunctive relief. In an emergency, the police should be called. To my mind, the appointment of a deputy to be given the power to make decisions for the removal of TZ from such situations, enforceable by acts of restraint under s.20, would be inconsistent with the provisions of the Act and Code.[84]Long-term decisions, such as whether or not TZ should move out of his accommodation and cohabit with another man, are plainly matters more appropriately decided by the Court, given the scheme of the legislation.[85]The appointment of a deputy to take such decisions is therefore both impractical and, in my judgment, inconsistent with the scheme of the Act and Code. It is also arguable that it would run counter to the principal focus of the plan, which should be to educate and empower TZ to make these decisions for himself.[86]Accordingly, I conclude that the care plan should provide that any immediate decisions concerning risk, for example whether TZ is safe in a social setting, should be made by his support worker. Long-term decisions should be referred to the Court of Protection.[87]I hope the observations set out in this judgment provide some helpful guidance to the local authority in drawing up a final care plan. I have deliberately not set out a draft plan in detail. That is a matter for the local authority support team to prepare in collaboration, of course, with TZ himself and his litigation friend the Official Solicitor. I look forward to receiving the final plan. If there are any issues on which my assistance is sought, I anticipate that they can be decided by the court following further written submissions.[88]I would also be grateful if the parties’ legal representatives could agree and submit a draft order incorporating the decision set out in this judgment.

Cited in 19 later judgments

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