Nottinghamshire County Council v LM & Anor [2026] EWCOP 38 (T2)

This judgment will be handed down on 4 August 2026 at 2.00pm at the Nottingham Regional Court remotely by circulation of the approved judgment by email. The parties are reminded of the terms of the Transparency Order in this case. LM’s identity, residence and other personal details must remain confidential. The parties must take all reasonable steps to ensure that confidentiality is preserved.Case No 14230071[2026] EWCOP 38 (T2)
IN THE COURT OF PROTECTION
Date 4 August 2026
Nottingham Regional Court
Before
His Honour Judge Rogers(sitting in retirement)
Between
Nottinghamshire County CouncilApplicantLMRespondentsNottinghamshire Healthcare Foundation TrustRespondent
Ian Brownhill (instructed by Bevan Brittan LLP and Weightmans LLP) for public bodiesFrancesca Gardner (instructed by Irwin Mitchell LLP) for LMHearing Hearing dates: 14 May 2026
JUDGMENTApproved
[1]This judgment will address two controversial areas of capacity in these proceedings initiated in 2024 in respect of LM.[2]LM is a middle-aged man who lives in a residential placement and has done so since 2017. The documents in this case reveal a long and complex background personal history. My resolution of the issues will not depend to any great extent upon that history. Further it is inappropriate to set out in this public document the detail as many aspects are sensitive. Accordingly, I will content myself with a brief summary. The trial bundle contains the full detail and is accessible if necessary. Of course, I have the detail in mind even without express reference.[3]LM had a very troubled childhood, characterised by violence, abuse and trauma. He had partial deafness and speech delay. He attended both special and mainstream schools but did not thrive. Upon leaving school he attended a training college for some years where he obtained some skills in manual occupations. He was briefly employed but that was not sustainable. He misused alcohol and cannabis.[4]LM has had a number of relationships, with both men and women, some casual, some longer-term. Some are described as becoming highly intense very quickly. He is active online, not always in a positive way, and has formed relationships through that medium.[5]A number of allegations of criminal behaviour have been made against LM over the years. Some have not been pursued. Some have led to his conviction. By far the most serious is his conviction in 2009 for rape. Unfortunately, there is very little information available. I did not think it proportionate to adjourn the proceedings to obtain the case papers, but it is, in my judgment, unfortunate that we do not have a fuller picture. What is known is that the circumstances involved the anal rape and assault of a vulnerable man whom LM knew. LM pleaded guilty and was sentenced to a hospital order with restrictions under sections 37 and 41 of the Mental Health Act 1983. He is on the sex offenders register.[6]LM has a longstanding diagnosis of moderate learning/intellectual disability which will not change. His IQ has been assessed as between 52 and 60. Various records and opinions within the papers also speak of “global developmental delay”, “low working memory index”, “difficulty processing information”, “impulsivity due to reduced impulse control” and evidence of a “dysfunctional attachment style”. Dr Rebecca O’Donovan, the consultant forensic psychiatrist engaged in this case, to whose evidence I will refer in more detail later, regards the level of functioning described by others, alongside the IQ assessment as consistent with the existing diagnosis of moderate intellectual disability. No party in this case takes issue with the diagnosis and I am confident that it is correct and the descriptions of LM’s functioning are consistently indicative.[7]These proceedings were instituted by the local authority, principally because of concerns over LM’s online activity and increasingly dysfunctional approach to relationships. Progress has been slow, and it is a matter of regret that only now is it possible to resolve the outstanding issues of capacity. Fortunately, the majority of the areas of decision making are not in issue. The parties are agreed that LM lacks capacity in relation to litigation, care, residence, contact with others and internet and social media use. The evidence, in my judgment, supports the agreed position. The two controversial areas are engagement in sexual relations and the sharing of information in respect of sexual offences.[8]The public bodies submit that LM lacks capacity in the two areas. At the outset of the hearing the Official Solicitor was cautious as to her approach, wishing to hear the evidence and, particularly, that of Dr O’Donovan before expressing a concluded view. I reserved judgment, allowing the parties to take stock and provide written submissions. In due course Ms Gardner sent in her closing submissions, making clear that the Official Solicitor’s position is that she adopts Dr O’Donovan’s view and therefore invites me to find that the presumptions in each case have not been displaced and according that LM has capacity.[9]My starting point, as ever, is the Mental Capacity Act 2005. Its provisions are very familiar and do not require to be set out in full. Section 2(1) provides:
“For the purposes of this Act, 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.”
[10]In approaching this question and all the matters in section 2, the court is particularly required to have regard to the following in section 3(1):
“For the purposes of section 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).”
[11]Ms Gardner emphasises the importance of the statutory principles, particularly (3) in this case, contained in section 1 which provides, in part:
“(2) A person must be assumed to have capacity unless it is established that he lacks capacity. (3) 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. (4). A person is not to be treated as unable to make a decision merely because he makes an unwise decision.”
[12]By far the most important authority relevant to my decision is that of the Supreme Court in A Local Authority v JB (by his Litigation Friend, the Official Solicitor) [2021] UKSC 52. It is extremely well known to all practitioners and so I do not propose lengthy citation. I have reread it closely not only because of its direct application to some of the issues in this case but also because of its wisdom on the wider general and conceptual questions in this very difficult area.[13]In his introductory paragraph, Lord Stephens sets out in terms the profound significance of a finding of capacity, or lack of it, for an individual in the sphere of engagement in sexual relations. In her Position Statement for the hearing, from paragraph 16 onwards, Ms Gardner reinforces the point powerfully. She cites a series of authorities, which I need not reference individually, emphasising the profound, sensitive and far-reaching nature of the question in issue. She reminds the Court of the potential invasion of personal autonomy and cautions against a paternalistic or overly protective approach. The points are well made and I am very conscious that I must approach my task with these matters in the forefront of my mind when undertaking the essential close examination of the evidence and arguments.[14]In JB, from paragraph 67 onwards, Lord Stephens sets out the correct approach. Without detracting from his full analysis which would require very lengthy citation, I distil the following. Ther question is P’s capacity, or otherwise, to make a decision on a matter. The approach is “decision-specific”. The decision is contextual. However, particularly in relation to sexual relations it is normally non-specific to a particular person involving a forward-looking general evaluation. To require a bespoke decision in relation to every potential sexual partner would be impractical and intrusive. Lord Stephens does not exclude particular person-specific instances but regards the more general approach as “ordinarily” the preferred route.[15]From paragraph 72, Lord Stephens discusses in detail the additional considerations where the issue is regarded as person-specific. Subject to one proviso to which I will refer later, this case does not require a person-specific approach and so I need not dwell on this aspect.[16]Paragraph 77 may be relevant to part of Dr O’Donovan’s thinking and Ms Gardner’s submissions so it is worth reproducing. It reads:
“P’s ability under section 3(1)(c) MCA to use or weigh information relevant to the decision as part of the decision-making process “should not involve a refined analysis of the sort which does not typically inform the decision … made by a person of full capacity”: In re M (An Adult) (Capacity: Consent to Sexual Relations) at para 81. It would also derogate from personal autonomy to require a potentially incapacitous person to undertake a more refined analysis than persons of full capacity.”
[17]Paragraph 78 sets out the correct sequence in the Court’s analysis. The so-called “functional” element must be established first, looking, in particular, at the matters in section 3. If they establish an inability to make a relevant decision, then and only then does the diagnostic element come into play and crucially the “clear causative nexus” must be established before a finding of incapacity can be made.[18]The Supreme Court in JB endorsed the Court of Appeal’s reformulation of the correct issue as being the capacity to engage in sexual relations. At paragraph 84 Lord Stephens quoted with approval Baker LJ’s suggested approach which reads:
“… the information relevant to the decision [to engage in sexual relations] may include the following: (1) the sexual nature and character of the act of sexual intercourse, including the mechanics of the act; (2) 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; (3) the fact that P can say yes or no to having sexual relations and is able to decide whether to give or withhold consent; (4) that a reasonably foreseeable consequence of sexual intercourse between a man and woman is that the woman will become pregnant; (5) that there are health risks involved, particularly the acquisition of sexually transmitted and transmissible infections, and that the risk of sexually transmitted infection can be reduced by the taking of precautions such as the use of a condom.” (Emphasis added by Lord Stephens)
[19]Potentially relevant to the approach taken by Dr O’Donovan is the argument pursued by the Appellant and rejected by Lord Stephens in paragraph 96:
“Mr McKendrick also submitted that sexual activity, and decisions about engaging in sexual relations for a person of full capacity, are largely visceral rather than cerebral, owing more to instinct and emotion than to analysis. On this basis he argued that to include as part of the information relevant to the decision 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 imposes a discriminatory cerebral analysis on the potentially incapacitous. I reject that submission. As the Court of Appeal observed, at para 96, “amongst the matters which every person engaging in sexual relations must think about is whether the other person is consenting”
(emphasis added). If that is properly viewed as cerebral or as involving a degree of analysis, a decision to engage in sexual relations is necessarily cerebral or analytical to that extent.”[20]The ultimate disposal of the appeal in JB contains a neat summary in a few words at paragraph 121:
“The evaluation of JB’s capacity to make a decision for himself is in relation to “the matter” of his “engaging in” sexual relations. Information relevant to that decision includes the fact that the other person must have the ability to consent to the sexual activity and must in fact consent before and throughout the sexual activity. Under section 3(1)(a) MCA JB should be able to understand that information and under section 3(1)(c) MCA he should be able to use or to weigh it as part of the decision-making process.”
[21]Before the hearing began, Ms Gardner produced a Legal Framework document setting out comprehensively the statutory provisions and authorities which were potentially relevant. Additionally, counsel in their written submissions referred to a range of authorities. It is unnecessary to set out extensively the legal position beyond that which I have described already. However, I am grateful to them for their scholarship and, of course, bear very much in mind the points made.[22]The one exception is the case of PN (Capacity: Sexual Relations and Disclosure) [2023] EWCOP 44, a decision of Poole J. As a decision at first instance, it is fact specific and so not determinative of my approach. However, there are some significant parallels factually and His Lordship’s commentary and reasoning are, in my judgment, extremely helpful. I need not set out the facts, notwithstanding the parallels, but limit myself to two key passages. Poole J says:
“16. Given that, as Lord Stephens made clear, consent is a "necessity" condition for engaging in sexual relations, it is not really information to be weighed alongside other information when deciding whether to engage in sexual relations. At the hearing, there was a focus on PN's ability to use the relevant information, in particular in the moment when he initiates sexual activity by touching another person without their consent. After careful consideration of all the evidence but in particular the insights of Mr Curran, the opinion evidence of Dr Ince, and the witness evidence of Mr York, I am satisfied that in the moment when PN feels the impulse to touch a woman without her consent, he remains able to use the relevant information. He has sufficient understanding of the necessity of consent that he retains that understanding even at those moments. He chooses to surrender to the impulse but that does not mean that his ability to use the information is lost. To borrow a phrase used by Dr Ince during his oral evidence, PN knows that he should not touch, but thinks "Hang it! It is what I want to do." In any event, accepting as I do the expert opinion evidence of Dr Ince on this matter, I find that PN surrenders to his impulse because of his character and outlook not because of his impairments. His impairments do not cause him to lose his control in other fields of activity, or his sexual control in other settings. His sexual impulsivity is not a manifestation of his ASD and/or learning disability. There is no pattern of impulsivity due to his impairments of which his sexual offending is a part. When with his brother or others whose disapprobation he might want to avoid, he controls any impulses to sexually touch women. He disregards the need for consent but he remains able to use the information he retains, namely that the consent of the other person is necessary.”
[23]Later referring to JB:
“19.......Lord Stephens therefore acknowledged the argument that the potentially harmful consequences to the other person of sexual assault or even rape should be part of the relevant information P must be able to understand, retain, and weigh or use in order to have capacity to make a decision to engage in sexual relations. He then cautioned against requiring too much of P in relation to envisaging consequences, before concluding at [93] that it was not necessary to include the adverse consequences for others as part of the relevant information. Lord Stephens' view that the inclusion of the adverse consequences for others was not necessary because they would not arise, is open to argument. However, I am bound to follow the decision of the Supreme Court. The bar should not be set too high. The Supreme Court has determined that understanding of the necessity of consent is sufficient. If P is able to understand, retain, and weigh or use information that it is necessary for others to be able to consent, and to consent in fact to sexual relations with him, then the court need not enquire into whether P has the ability to understand or envisage the ramifications of initiating or continuing sexual relations without consent.”
[24]In her evidence Dr O’Donovan referred frequently to LM’s pre-occupation with sexual gratification and how, in her opinion, that would tend to override a conventional decision-making process. In addressing that issue, I must engage with the correct legal approach both in terms of general principles and looking at the example of PN.[25]I should also refer to Mr Brownhill’s reminder to avoid the pitfall of placing individual decisions or decision-making areas into silos where there is a genuine factual overlap. He relies, of course, on B v A Local Authority [2019] EWCA Civ 213. It is an apt reminder, since, as I have mentioned, it is agreed that LM lacks capacity in a number of key areas, not least in importance, contact.[26]The only oral evidence called was from Dr O’Donovan. However, the trial bundle contains much other useful material which I must take into account. Specifically drawn to my attention by both counsel, as part of my prereading, is the capacity assessment of Zoe Hodgson, an occupational therapist (who also provided a witness statement at Bundle reference E353), assisted by Michelle Anderson, a speech and language therapist (E71). The assessment comprised the provision in advance of educational material and then two discursive sessions. The therapists were both already known to LM in their therapeutic roles. I am satisfied that the practical steps described (E72) were entirely appropriate and facilitated LM’s best responses.[27]I set out, without further comment at present, the salient elements of the assessment:[28]“Mr M understood some aspects of the decision being asked, he understood the mechanics of sex, and what consists of a sexual act although struggled in recognising and associating the terminology used to describe these acts with the actual act itself, e.g. when asked to name sexual acts Mr M was unable to use the correct terminology for oral and anal sex, when shown pictures of oral and anal sex Mr M could identify that these were sexual acts but could not consistently label the name of these acts. Mr M is aware that a woman can become pregnant following sexual intercourse and that the use of a condom can prevent this. Mr M is aware that a woman can pass on a disease when having sex but had no further understanding of this concept of sexually transmitted disease. Within the visit in November Mr M spoke of ‘hating’ the word capacity, when Miss Anderson explored why this was with Mr M he was unsure why, education around capacity was discussed with Mr M. In visits in January Mr M was unable to fully understand and discuss how the other person needs to have capacity to be able to consent to a sexual act and how to fully check that capacity and consent is present and ongoing throughout the sexual act. When given multiple choice options that were read to him, he was able to pick the correct answers, although he did not elaborate on their meanings and said ‘double and group orgy’ which had no relevance to the questions being asked and Mr M was unable to relate this to conversation. Mr M does not understand the concept of age (for example he requires reminders that he is 41) and how this relates to the law around sexual acts. When he was given ages of individuals Mr M was aware after education that the legal age for sex is ‘a one and a six’ but was unaware if a 14-year-old and a 18 year old having sex was legal. On 04.01.2024 - When asked what can happen if you do a sexual act with someone younger than 16, Mr M responded ‘its being a nonce’, Mr M did not identify any information about breaking the law, he was only able to identify this when given three options of ‘it’s fine, not sure and it’s illegal’. When asked about capacity Mr M said ‘I don’t know I’m not a lawyer’.” “Mr M retained some information after completing the education pack. On 04.01.2024 Mr M originally thought that the age of consent was eighteen, and pointed to this number when given visual options, he was later able to retain that this was actually a ‘one and a six’ on 11.01.2024. Mr M was unable to retain vital information about receiving consent from other people and the importance of that person having capacity to make their own decisions and withdraw consent. On 11.01.2024 Mr M answered questions around capacity with answers around consent he was unable to recall information specific to capacity. Mr M needed further visual options to select the correct answers although he also chose the wrong answer before correcting himself. Without the additional accessible information being given to him, he was unable to retain and recall previous educational information shared with him.” “Mr M was unable to understand and retain all information needed about entering into a consensual sexual act with another person. Mr M stated ‘no means no’ and ‘yes means yes’, and that if someone said no then you could get in trouble with the police, although Mr M used the terms capacity and consent synonymously and was unable to weigh up the information needed to identify if the other person has capacity themselves to make an informed decision about engaging in a sexual act.” (E73) “Mr M has a moderate intellectual disability which is a lifelong diagnosis. The NHS website describes that "a learning disability affects the way a person learns new things throughout their life. A person with a learning disability might have some difficulty: understanding complicated information, learning some skills, looking after themselves or living alone". Mr M has had exposure to educational conversation around sex, sex education, safe sex, healthy relationships, safe masturbation, safe online access to masturbation, consent, capacity and sexual disclosure at varying points throughout his adult life including in college (self-reported) as part of his treatment whilst detained in hospital and by multiple professionals over the last 5 years whilst residing in the community including from CFIDD, Social Care and the Police. This exposure to language associated with sex has enabled Mr M to be able to demonstrate recognition of topic vocabulary and phrases that have been used, however he has been unable to demonstrate understating (sic) of meaning to this vocabulary or elaborate on statements made and the statements meaning and implications to himself or others. In the moment, with verbally and pictorial guided support from a professional Mr M is able to provide surface level answers that are largely correct to engaging in safe sex, however unless Mr M has this professional guidance and is focussed to think about all aspects required in engaging in a sexual act to ensure he is engaging in safe consensual sex with another person that has capacity, Mr M becomes easily confused and has overlooked some of the key elements required to ensure safe sex. From the above information it is felt on the basis of probability Mr M lacks capacity to engage in sexual acts with another person.” (E74 and 75)[29]I will not set it out, but the lengthy capacity assessment (E36) of Hannah Bonser, advanced social work practitioner, in relation to LM’s contact with others is revealing and paints a picture of a man struggling to navigate this very difficult area of everyday life. It is unsurprising that she assessed him as lacking capacity, a conclusion which is not in dispute.[30]Dr Rebecca O’Donovan is a consultant forensic psychiatrist based as Arnold Lodge Secure Unit. She has an extensive CV (G2) and experience in criminal and family cases as well as in this Court. She was jointly instructed in 2025 and has provided her report of 10 September 2025 (G1) and addendum of 9 January 2026 (G37). Naturally, the reports must be considered carefully in their entirety, which I have done, but certain passages stand out.[31]Dr O’Donovan took a very detailed history from LM and compared that with extant records. LM’s description of his relationship history (G6) is fairly bland whereas the records available show a tendency towards rapid intense relationships, often with a sexual element (albeit sometimes through online contact). The telephone discussion with support worker, K (G18) is also, in my judgment, revealing. It shows that LM prioritises the establishment of sexual relationships, with an emphasis on sexual gratification, a tendency to be tactile inappropriately, a difficulty in thinking about the intentions of others and the need for reassurance in certain circumstances. In her mental state examination of LM, Dr O'Donovan found him reliant on staff and seeking reassurance. (G20)[32]As a consequence of LM’s diagnosis, Dr O’Donovan found LM: “experiences difficulty processing information, reduced working memory and cognitive rigidity; in addition to impulsivity due to reduced impulse control. In addition to LM’s intellectual disability, there is also evidence that he experiences a dysfunctional attachment style. This is a consequence of the abuse he experienced as a child and the emotional unavailability of his mother.” (G21) and in relation to risks, she commented: “LM has previously been convicted for the rape of a vulnerable adult male. His understanding of his offending behaviour has been limited and thus his ability to independently moderate his risks of further offending is considered to be limited. It is noted that LM prioritises his experience of sexual gratification and whilst his pursuit of this does not parallel his offending behaviour, due to the supervision he is subject to, his opportunities for such behaviour are limited. In the absence of an understanding of this behaviour or a clear strategy for the internal regulation required to moderate the risks of such offending, in the absence of external controls, and the sense of containment he experiences from having access to staff at all times, LM’s risks of further offending are increased. Vulnerability LM finds it difficult to interpret the actions of others and to consider that their motivation for behaviour may be different to his own. In addition, LM has a tendency to prioritise access to food and sexual gratification above his other needs, therefore if the opportunity to meet these needs was presented to him, he would not be able to consider information that would be in conflict with this.” (G21)

and in relation to risks, she commented:

[33]Paragraph 15.13 of her report (G29) deals with Dr O’Donovan’s conclusions on sexual engagement. Her opinion is that LM has much of the basic knowledge and can retain, use and weigh it as appropriate. In the crucial passage she says: “In regard to his ability to use and weigh the necessary information, I have given this careful consideration, noting LM’s inability to interpret information about prospective partners and his tendency to prioritise sexual gratification. Whilst LM’s inability to make decisions about contact with others could impact on his ability to consent to have sexual relations with them; it is understood from the case law that the issue of consent relates to the individual’s ability to consider if they want to engage in sexual activity and can consider information relating to the associated risks, rather than their ability to consent to sexual activity with a specific person/persons. It could be argued that LM’s pursuit of sexual gratification impacts on his ability to use and weigh information about sexual relations as he may not consider the associated risks and an individual’s ability to consent due to his motivation for sexual activity. However, in my view it is not that he is unable to use and weigh this information but due to his impulsivity and need for sexual gratification, he prioritises his sexual urges above these other aspects of the decision. Whilst LM is able to recognise and understand the risks associated with sexual relations and to consider matters of consent. This is evidenced by LM’s reflections of index offence. LM did not indicate that he had not understood that the victim was not consenting to sexual relations, and it is noted that his guilty plea was accepted, indicating that he was able to recognise that the individual was not consenting. However, it is recognised that LM does have difficulties interpreting and processing information about others and therefore, he may find it difficult to determine if an individual was unable to consent to sexual relations in the absence of overt visual and verbal cues. However, after giving consideration to a range of factors, on balance it is my view that as LM’s decision to engage in sexual relations largely relies on the interpretation of his own internal world, he is able to process the necessary information to make this decision. Therefore, it is my view that he is able to use and weigh the necessary information to make decisions about sexual relations and thus has capacity to make this decision.” (G30 and 31)[34]Dr O’Donovan herself specifically referenced the position in relation to contact with others and in her assessment of that aspect says: “LM had some understanding the different types of relationships, however he found it difficult to understand how and why types of relationships differ. He particularly struggled to understand the difference between friendships and intimate relationships, whilst also conflating caring relationships with parental roles. Due to the nature of LM’s intellectual disability, he experiences difficulty processing and interpreting information about the actions of others. As a result, LM relies on his feelings about others to determine the nature of the relationship he will have with them. This in the context of his dysfunctional attachment style impacts on his ability to use and weigh information about his contact with others as LM is motivated to seek relationships that provide him with psychological containment or sexual gratification. His ability to use and weigh information in this regard is further impaired by LM’s reduced impulse control, which further exacerbates his need to fulfil his contacts with others. Thus, he is unable weigh up the necessary information about others to consider the pros and cons of the contact. This inability is further exacerbated by LM’s cognitive rigidity, which is a consequence of his intellectual disability. Consequently, he is unable to consider information that conflicts with his firmly held views.” (G29)[35]Dr O’Donovan’s addendum report is in fact her response to six specific questions posed by the parties. Her conclusions to the first three questions need to be cited in full as they represent the core of her opinion and inform her conclusion that LM has capacity in respect of engagement in sexual relations. She states: “In respect of paragraph 15.13.13 of your report, is it your opinion that LM would only understand that his partner had withdrawn their consent for the sexuality (sic) activity if they explicitly said so? Would, in your opinion, LM understand common responses to unwanted sexual contact, for example, other person freezing? LM does find it difficult to interpret the behaviour and emotions of others and therefore he may not recognise that a person freezing indicated that a person had withdrawn their consent. However, due to his preoccupation with experiencing sexual gratification, it is my view that such information would make little difference to his pursuit of sexual activity as his decision making is driven by his internal needs rather than the experience of others. Thus, once he had committed to engaging in sexual activity, new information that was in conflict with this would be unlikely to influence his behaviour. In respect of paragraph 15.13.11 of your report, is it your opinion that LM would prioritise his own sexual gratification over the consent of the other party to the sexual activity? If so, does that prioritisation arise from a disorder of the functioning of the mind or brain? It is my opinion that LM would prioritize his own sexual gratification over the consent of the other party to engage in sexual activity. Such a preoccupation is not a feature of LM’s intellectual disability. Research exploring the risk of sexual offending perpetrated by individuals with intellectual disability has not shown that intellectual disability alone, increases the risk of such behaviour. Thus, in my view LM’s preoccupation with sexual gratification is not a consequence of a disorder of the mind or brain. In respect of paragraph 15.13.11 of your report, is it your opinion that LM would prioritise his own sexual gratification over the risks related to the sexual activity, in particular sexually transmitted infections? If so, does that prioritisation arise from a disorder of the functioning of the mind or brain? In the pursuit of sexual gratification, it is unlikely that LM would consider the risks of sexually transmitted infections due to the intensity of his sexual arousal. This is common for many individuals with a history of sexual offending and is thus in my view an aspect of his offending behaviour rather than his intellectual disability. However, it is acknowledged that LM’s limited ability to process conflicting information simultaneously would further exacerbate his pursuit of sexual activity whilst excluding other information such as the risk of sexually transmitted infections.” (G39 and 40)[36]In her oral evidence, Dr O’Donovan expanded upon and broadly confirmed her reports. She was asked about LM’s lack of clear understanding of the transmission of sexually transmitted infections. He had previously said that the oral contraceptive pill was the protection and had not relied upon the condom for that purpose. She said that she had discussed this and, with assistance, LM has understood the barrier point, although later in her evidence she confirmed the extensive sex education provided which did not seem to have sunk in. She felt it was not uncommon for a misunderstanding of this sort to be made by the capacitous, particularly when anxious. She was satisfied that LM was capable of understanding this. Whether he was able to retain such information was not discussed or tested.[37]Dr O’Donovan was content with LM’s answers on the issue of consent. She said he used the word itself, accepted and adopted the example of intoxication negating consent and recognised that a change of mind on the part of the other person could occur at which point he would have to stop.[38]In terms of LM’s sexual drive, Dr O’Donovan explained that extreme urges or impulses tend to be visceral and can be overwhelming. Her view is that the intellectual functioning of an individual is irrelevant to that. Similarly, an individual with trauma, sexual or otherwise, in his history may experience angry or sexual impulses leading to extreme behaviour, even criminal, and that would be so equally as regards capacitous and incapacitous individuals.[39]Dr O'Donovan was asked about her first answer in the addendum report and, in particular, her acknowledgment that LM has difficulty in interpreting behaviour and emotions, for example in the context of withdrawing consent. Her response was that this is not uncommon and to rely upon that in determining capacity would be “quite a leap”.[40]In terms of the conviction, Dr O’Donovan accepted that there was limited information but concluded from what she knew that LM must have been regarded as fit to plead and, by virtue of his plea of guilty, must have accepted the relevant mens rea, in other words had processed the issue of consent or lack of it.[41]Dr O’Donovan spoke at some length and somewhat beyond the content of her report on the issue of LM’s comprehension of age, both purely in chronological terms but also in evaluating age generally. It has an obvious relevance to the question of consent with a potentially underage partner or one whose age is uncertain but may be, for example, in late teenage. I need to stress that there is no evidence that LM targets young, especially impermissibly young, sexual partners but it is a legitimate area for discussion in this case given his sexual urges and historically wide use of the internet to meet a range of people. Dr O’Donovan confirmed that LM does not know his own age or that of other people in purely chronological terms. Also, he is, at best, confused about or, more seriously, unable to understand the age of consent in anything other than superficial terms. When asked to expand upon her view, Dr O’Donovan emphasised LM’s lack of literacy and limited cognition but she was clear that LM easily distinguished adults from children but was at a disadvantage when dealing with older children/young adults. She indicated the difficulties the wider population would has in assessing the precise age of a person in this category, a point I have no hesitation in accepting, but she went on to say that LM has the additional problem of being unable or less able to interpret social cues that to a person without intellectual deficit would provide additional evidence, over and above mere appearance, to assess age and/or maturity.[42]Dr O’Donovan, very fairly in my judgment, acknowledged the acute difficulty of this case and accepted that some of the evaluations to be made were legal rather than purely psychiatric. Nevertheless, on balance, and despite her acknowledged concessions that some of the evidence pointed the other way, she adhered to her opinion that LM has capacity in this crucial area of decision-making.[43]At the conclusion of the evidence, it was clear to me that this is a difficult and sensitive decision. Counsel were keen to have time to reflect and to provide focussed written submissions and so I reserved judgment and gave them the time they needed. The result has been two very well argued and persuasive closing submissions. Taken together with the opening Position Statements, I have submissions of the highest quality. I cannot say that they have made my decision easier but undoubtedly, they have set out the competing points with great precision and focus.[44]The briefest summary of the submissions will suffice for this judgment, but I have, of course, paid very close attention to their contents with the many important nuances.[45]Mr Brownhill, for the public bodies, urges me to take a rigorous approach to the evidence and to the law. He says that LM does not understand the implications of sexually transmitted infections and, specifically, fails to understand the protective function of a condom. To attribute protection in this regard to the oral contraceptive pill is obviously wrong. He does not accept that LM is capable of achieving understanding and, importantly, retention of this information simply by education or reminder. He points to the evidence of Ms Hodgson and to the extensive provision of sexual education previously. He invites me to reject Dr O'Donovan's analysis that this is not a point of substance, is not uncommon in the capacitous and is capable of remedying any event. He submits that this deficit alone in understanding is sufficient to show LM lacks capacity in this regard.[46]Mr Brownhill submits that the issue of consent is even more problematic. A range of evidence, including Ms Hodgson's assessment, the observation of others and Dr O'Donovan's own inquiries shows that, whilst, with support, LM can articulate some of the basics, in reality, he has no understanding of the concept of consent, the concept of age or, if appropriate, the age of consent itself. Mr Brownhill submits that LM does not really understand the matter theoretically, but, perhaps more importantly, in the moment, he would struggle because his very great difficulty of interaction with others and his inability to spot cues would be a significant impediment. He submits that this is the obvious conclusion of the evidence as a whole, including Ms Hodgson's assessment. He questions whether Dr O'Donovan has really engaged with the point. He submits that even on her own evidence, and including concessions, she discounts obviously significant points and misleads herself by an unnecessary concentration on the criminal law.[47]Mr Brownhill submits that Dr O'Donovan is wrong in her conclusion that LM understands consent but in any event that is to some extent irrelevant, since his behaviour at any particular moment is likely to be driven by his overwhelming urge for sexual gratification. He submits that she has misapplied the legal test and thereby has come to an erroneous conclusion. In legal terms, Mr Brownhill submits that this case is squarely governed by JB principles and that comparison with PN is misleading. He submits that the presumption in this area of decision-making is clearly displaced and that I should find LM lacks capacity.[48]Miss Gardner, for LM, through the Official Solicitor, informs me that the Official Solicitor, having earlier taken a cautious view, now firmly invites me to hold that LM has capacity and that the presumption has not been displaced. She confirms that the Official Solicitor accepts the evidence of Dr O'Donovan with the obvious consequences.[49]Whilst accepting the somewhat ambiguous evidence about sexually transmitted infections, Miss Gardner submits that Dr O'Donovan is correct to regard that as insignificant or, in any event, capable of remedy by instruction.[50]On the issue of consent, Miss Gardner argues that LM has demonstrated a sufficient level of conceptual understanding in all of the relevant aspects of consent. She submits that LM’s acknowledged difficulty in the assessment of age should not enter the equation as it is merely an inability to assess chronological age in terms of actual numbers, given his lack of numeracy. She argues that Dr O'Donovan is right to say that LM has all of the basic tools and there is no contraindication of capacity in this regard. She goes on to support Dr O'Donovan's analysis of the impact of LM’s intense sexual urge, arguing that this arises, not from any intellectual deficit, but from his innate character, perhaps affected by his earlier life experiences and trauma. Her conclusion, which she commends to the court, therefore, is that LM understands consent, but and in any event any perceived difficulties, in the moment, are attributable to his innate urges not to intellectual deficit, so that, applying the legal test, the essential causal nexus is not there. In terms of authority. Miss Gardner submits that this case is akin to PN and should be dealt with similarly.[51]Against this very substantial background of evidence and argument, the decision for me is stark. I set out earlier and at some length the legal basis for my decision. I reiterate that I start from the proposition that LM is presumed to have capacity and that any finding of incapacity is only to be made where the evidence justifies a displacement of that presumption. I remind myself of the profundity of the decision and the potential interference with LM’s autonomy in this most sensitive area. I remind myself not to take an overprotective paternalistic approach but to apply rigorous forensic principles.[52]I have found this a most difficult decision, not so much evidentially as conceptually. There is no doubt that LM understands the mechanics of sexual intercourse, the foreseeable consequence of pregnancy and that he can say yes or no. The outstanding issues are those identified by Mr Brownhill, namely in respect of sexually transmitted infections and of consent.[53]LM’s comments about the oral contraceptive pill being a protector against sexually transmitted infections and his lack of knowledge of the condom are worrying. In my judgment, it is an entrenched view. The evidence of Ms Hodgson in the assessment and at E359 persuades me that this was not a minor or insubstantial lacuna. Neither am I satisfied that it is capable of remedy by instruction, given the extensive background provision of information. Even if prompted, I am not satisfied LM would retain the correct information. I am satisfied this is because of his intellectual deficit. I respectfully disagree with Dr O’Donovan that this is a relatively minor matter and is typical of the sort of confusion which is likely to exist in the wider capacitous community. I agree with her that, taken in isolation, it would be a profound step to find incapacity on this alone, but, that said, it is an important element of the whole picture and must not be glossed over.[54]I also accept Mr Brownhill’s submission that this element of the case must be viewed pragmatically. I agree that it would be totally impractical, quite apart from being intrusive, to expect LM to be prompted or reminded about the use of condoms as a precaution against sexually transmitted infection. There was no evidence about the situation where pregnancy was not an issue, for example in a same sex encounter, where the use of a condom as a contraceptive was not relevant but might still have a protective use. In my judgment, LM’s intellectual difficulties would place him at a disadvantage in weighing up such a situation.[55]On the issue of consent, I have to say that I respectfully but profoundly disagree with the opinion of Dr O’Donovan endorsed by the Official Solicitor. I accept that in the context of a clinical interview LM was able to articulate a broadly accurate account of the basics of consent. Significantly, in my judgment, he seems to have been less able to do so in his assessment with Ms Hodgson, requiring the provision of multiple-choice options, plainly not a viable expedient in a dynamic real-life situation. However, merely providing accurate basic answers in a controlled environment is not the same as demonstrating real understanding. Unfortunately, as the totality of the evidence demonstrates, LM is a man who finds great difficulty in negotiating relationships in general, not just sexually. As noted by Dr O’Donovan, in commenting on the issue of contact with others, LM has difficulty differentiating between types of relationship, for example friendship and intimate. Although a comment made in relation to a different area of capacity, it clearly resonates when considering consent.[56]The conclusions of Ms Hodgson’s assessment and the comments of support worker K give cause for concern as to LM’s intellectual ability to negotiate this difficult area. However, most strikingly, in my judgment, are Dr O’Donovan’s own comments. Variously, as set out above, she describes LM as having difficulty processing information, cognitive rigidity and reduced impulse control, all consistent with his diagnosis. She notes his limited insight into his offending and his difficulty in interpreting the actions of others. In her analysis section in G30, Dr O’Donovan notes LM’s inability to interpret information about prospective partners. She recognises the difficulty in interpreting and processing information and says in terms “he may find it difficult to determine if an individual was unable to consent to sexual relations in the absence of overt visual and verbal cues.” In conclusion, Dr O’Donovan’s view is that “as LM’s decision to engage in sexual relations largely relies on the interpretation of his own internal world, he is able to process the necessary information to make this decision.”[57]I confess to being unclear precisely what Dr O’Donovan means when referring to LM’s internal world but to the extent she is regarding consent as irrelevant to LM’s thinking in the moment as he is overwhelmed by his desires, that may be true in the moment for him, but it is no answer, in my judgment, to the question of whether he is able to understand, retain, use and weigh the points relevant to consent.[58]Therefore, for reasons which are not entirely obvious, I am satisfied that Dr O’Donovan’s conclusion on this aspect is flawed. I find much of her analysis to be sound. It seems to me to tend towards the opposite answer to that she alighted upon. In my judgment, she focussed too much upon LM’s reaction to the offence of rape. She is correct, of course, in a strict criminal law sense that his plea of guilty to rape must mean that the Crown Court was satisfied as to his fitness to plead and the mens rea. Without more information and aware that the strict criminal law position does not always demonstrate the precise practical nuances, I am loathe to draw such a firm conclusion as to LM’s understanding of consent. The disposal by way of a hospital order does not undermine the correctness or implications of the conviction but shows the complexity of the situation.[59]I agree with Mr Brownhill’s submission that Dr O’Donovan appears to have taken a sequential approach, in discounting questions of consent given her view that the driving forces would overwhelm LM to act as he chose to do so. In my judgment, as Mr Brownhill submits that is a misunderstanding of the law as set out in JB. Just because a particular outcome in a real-life situation may in the end be determined by an overwhelming need for sexual gratification, driven not by intellectual deficit but by personality or early life experiences, that does not mean that the test relating to the issue of consent in the overall assessment of engaging in sexual activity does not arise. That first stage may not be dispensed with. I agree with Mr Brownhill that to do so would run directly counter to the approach dictated by JB.[60]The same points arise in respect of Dr O'Donovan's addendum report. Strikingly she acknowledges that LM might not recognise that a sexual partner freezing is consistent with withdrawal of consent and yet, as before, discounts that in terms of relevance because of LM’s need for sexual gratification which she believes will override other thoughts. That, in my judgment, is a misunderstanding of the legal text to be applied and a further example of sequential thinking.[61]I agree with Dr O’Donovan that LM’s sexual drive is not attributable to his intellectual deficit. Where I respectfully disagree is where she concludes that the essential casual nexus is not established. The relevant nexus is not with the sexual drive and therefore the overriding feelings in the moment but in relation to LM’s inability to negotiate the elements of consent which the evidence demonstrates, and I find, is plainly and directly because of his intellectual deficit.[62]My findings in respect of sexually transmitted diseases and the general issue of consent are sufficient to resolve the issue. However, there is a further significant point which reinforces my view. LM does not understand the concept of age. I find it goes beyond a mere problem with numeracy. He can readily distinguish the concepts of adult and child but is unable to attribute a chronological age to the concepts. On the evidence, I find that he has no real comprehension of the age of consent. The discussions recorded by Ms Hodgson show, at best, LM is confused. In my judgment, unfortunately, he simply does not have the intellectual equipment to understand and navigate this complicated area.[63]I accept that this element would only come into play in certain circumstances. Were LM to contemplate sexual engagement with a person of his own age that person would plainly be an adult and he would know that. There would be no need for him to factor in age or the age of consent. However, were he to encounter a much younger potential partner the issue could be live. He lacks the ability accurately to assess age, not as an exact figure, but in the general sense. He is further handicapped by his inability to recognise behavioural cues which might indicate, for example, that an apparently mature looking teenager was in fact much younger. In the decision-specific analysis of consent being able to judge whether a potential partner is sufficiently old to be able to give valid consent is, in my judgment, a crucial ingredient.[64]In the light of my findings and analysis, a further point does not now arise but I confess to have been deeply troubled by the age question. Had the entire issue come down to the age of consent, I was concerned as to the proper approach. Indeed, I delayed judgment to seek counsels’ further submissions. What I wondered would be the position if the potential sexual partner was obviously an adult? Would it be permissible to carve out a class or cohort of people in respect of whom it might be argued that LM had capacity, whilst at the same time finding he lacked capacity where the age of consent was very much in play because of the actual or perceived age of the partner? Clearly JB anticipates most analyses would be decision-specific, without ruling out individual person-specific instances in particular factual circumstances. What JB does not, in my judgment, contemplate and counsel were unable to help me on this, is the unusual but foreseeable case of a requirement for a cohort-specific answer. I see no reason in principle why this should not be so, but happily the issue does not fall for resolution in this case. It may generate a difficult piece of litigation in another.[65]It follows from my analysis that, notwithstanding the superficial similarities, this case is not to be compared to PN. In that case crucially PN had capacity and could evaluate all aspects of consent but chose to ignore them because of his desire for sexual gratification.[66]I have not dealt with every piece of evidence or argument advanced, but I have taken them into account and have no hesitation in concluding that LM lacks capacity to engage in sexual relations.[67]The second issue which falls for resolution is whether LM has capacity to share information regarding his sexual offending. The evidence is very limited and the hearing dealt with the question shortly. Similarly, I can express my conclusion much more succinctly.[68]I share the concern of the public bodies that this issue has been raised in something of a vacuum without a factual context. It is not clear that any decision is required. Simply resolving the question of capacity in case a particular best interests situation arises is rarely desirable. It is not suggested there is a looming problem and the evidence before me is that LM is relatively measured in respect of information and so is unlikely to share information spontaneously and potentially detrimentally to his own or others’ interests. It is accepted on all sides that certain disclosures are mandatory in law and so they are unaffected by any issue of personal capacity.[69]The issue, such as it is, arises from Dr O’Donovan’s evidence. She was asked to comment and I do not criticise her for engaging with the point. Her key finding is that: “Whilst it was not possible to explore LM’s approach to decision making in depth, it was possible to determine that he was able to understand that the purpose of sharing information about his offending was to allow others to make decisions about their contact with him. He further understood that sharing such information may result in this information being shared with others.” (G33)[70]Dr O’Donovan’s assessment is that LM has capacity and that is certainly an arguable view on the limited material available.[71]It seems that there is no definitive authority on this area and I can understand why the Official Solicitor is keen for the Court to give guidance. It is not usually the role of a Tier 2 Judge to set out guidelines and since, in my judgment, the point does not in fact arise in a tangible sense in this case, I respectfully decline to do so. A similar situation in fact arose in PN before Poole J. In that case PN had capacity and so understandably His Lordship was reluctant to say much. What he did say at paragraph 25, albeit not as definitive guidance, was:
“However, for present purposes I assume that the relevant information will include the risks to others that arise from the previous offending, how the disclosure of information might be given so as to allow others to avoid or mitigate such risks and prevent P from committing offences which could have adverse consequences, and the reasonably foreseeable consequences of sharing or not sharing the information. In PN's case there are a large number of possible ways in which he might share information, from providing strangers with a long list of previous behaviour, to saying to someone with whom he has formed a relationship, "I have been accused of touching women inappropriately before, but I will not do so with you."”
Respectfully, I agree with His Lordship's view.[72]I note from Ms Gardner’s closing submissions that, in fact, the Official Solicitor prefers to reserve her position on the question of best interests until a specific factual situation arises for determination. In my judgment, that tends to reinforce the point that a capacity decision made on relatively limited evidence and in a vacuum is not the correct way forward. In those circumstances, it seems to me right not to make a determination at all, at any rate at this stage.[73]Finally, having made the decisions I have, I step back for one final time and ask myself whether I have been driven by undue caution or an unnecessarily paternalistic approach. LM’s circumstances, particularly bearing in mind the offending history, naturally give serious cause for concern for him and others. I recognise that, but am satisfied in my mind that the conclusions reached are forensic and firmly evidence based.[74]I express my gratitude to counsel and the legal teams for their enormous assistance and for their patience in responding to my additional queries which has somewhat delayed the handing down of judgment. I very much hope this can be explained sympathetically to LM who may be disappointed and frustrated. It goes without saying that I wish him well and I am sure that, with support, he can live a fulfilled life.