England and Wales Court of Protection Decisions

IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION

		Royal Courts of Justice Strand, London, WC2A 2LL
		24/10/2018

The Honourable Mr Justice Hayden :

1. LC is a 23 year old woman. She is referred to in the case papers by anonymised initials, which reflect her unmarried status at the commencement of the proceedings. During the course of the case she married. She has asked me, directly, if she can be referred to in court by her married name. Her marital status is important to her, she is entirely right to make this request. I have respected it. However, the same initials will continue in the formal headings of the documentation not least because to retain them assists in guarding her privacy.
2. LC has significant learning disabilities which impair her 'social and generally adaptive functioning.' In addition to this she has been diagnosed as suffering from Autism Spectrum Disorder (ASD). More broadly, in terms of her physical health, she is fit and well.
3. It was a challenge for her family, who are present in court today, to care for her, particularly in her adolescence. She eventually found herself in a care home. Like so many others in that situation she recoiled from it and would frequently abscond, in effect 'voting with her feet', I suspect to return to her family. But as she reached maturity she began to develop an obsessional interest which was sexual in motivation in relation to men. This it requires to be said, in unambiguous terms, is a feature of her Autism. As such, it should not attract censure of any kind. Her behaviour is characterised, in this context as 'socially inappropriate', exhibited when she is out in the community. I do not need to amplify what is meant by that term. To do so adds little to my analysis of the issues and, I am aware, causes LC distress and embarrassment.
4. Now as long ago as 2013, proceedings were initiated in the Court of Protection because it was felt that LC was at very significant risk of sexual harm if she were permitted unfettered liberty or, in fact, to be unescorted in the community generally. The existence and extent of that threat is well established on the evidence. The Local Authority tried a variety of interventions which were all focussed on improving LC's understanding of how her interpersonal relationships with men could be made safer. This is a facet of the Local Authority's obligations, pursuant to the Mental Capacity Act 2005 (MCA), namely to promote a pathway to capacity in LC's decision-making on these issues.
5. A number of judges have heard this case during the course of its lengthy history. LC told me when she, at her request, addressed me in private, that this made it more difficult for her. Again, I appreciate her anxiety and I have told her that in future I will do my very best to see that the case is reserved to me.
6. A significant landmark in the chronology of this case was a hearing before Mr Justice Peter Jackson, as he then was, in November 2016. Having heard expert evidence Jackson J made declarations that LC had capacity to: engage in sexual relations; marry; make decisions in relation to contraception. It is also important to record that the Court determined that LC lacked capacity to; conduct the proceedings; make decisions on her contact with men; make decisions about care and residence; make decisions as to whether to enter or terminate a tenancy; decide whether or not she should access mobile phones or social networking sites. As I have indicated above LC went on to get married and her husband, on his application, is now a party to the proceedings.
7. Self-evidently the evidence presents the court with a complex legal and factual matrix. LC is considered to lack the capacity to decide whether to have contact with men or as it has evolved, to make decision whether or not a man with whom she may wish to have sexual relations is safe. It is axiomatic that the risks posed to her are physical in a real sense, not only from her exposure to disease, but from the nature of the men she may encounter. Rather more insidious is the risk of emotional harm to LC by interacting in this way.
8. In the Mental Capacity Act 2005 there are a number of core principles. They require to be stated here:

i) a person must be assumed to have capacity unless it is established he has a lack of capacity;

ii) a person must not be treated as unable to make a decision unless all practicable steps have been taken to assist in decision making and to have failed;

iii) a person is not to be treated as unable to make a decision merely because he makes a decision that is unwise (this requires particular emphasis here);

iv) an act done on behalf of a person who lacks capacity must be made in his best interests. Before the act is done, regard must be had as to whether the purpose for which it is needed can be as effectively achieved in a way which is less restrictive of the person's rights and freedoms of action.

9. I have reminded myself of the core principles of the Act because they provide the framework in which I have considered this case today.
10. Jackson J's approach to the issues of capacity is well established in law (see R: M (An Adult) (Capacity: Consent to Sexual Relations) [2014] EWCA Civ 37; Sheffield City Council v E [2005] Fam 326; X City Council MB [2006] 2 FLR 968; Local Authority v H [2012] 1 FCR 590). Thus, though it may not be intuitive, it is perfectly logical, looking at capacity in an issue-specific context (as the MCA requires), to possess the decision-making facility to embark on sexual relations whilst, at the same time, not being able to judge with whom it is safe to have those relations.
11. Following LC's marriage, the tensions inherent in this situation came to the fore. It is clear that LC soon began to show an interest in men other than her husband. As he is here, listening to this judgment and to the exchanges today, it is important that I re-emphasise to him and perhaps to others, that it would be entirely wrong to make a moral judgment in relation to LC's behaviour. It bears repetition, this is an aspect of her Autism.
12. LC began to seek sexual relations with strangers, in what I will loosely call the public domain. The Local Authority became concerned about the appropriate level of restriction to be imposed in order to protect LC's sexual integrity. An application was made to HHJ Butler, sitting in the Court of Protection, in June of this year. Following that hearing, the court endorsed a plan, predicated on the expert evidence that it had heard, to the effect that there should be one to one community supervision. In addition, there was 'an agreement' by LC that she would not engage in sexual activity in public places. I have rescinded that agreement (which has been referred to as an undertaking) because I do not consider LC is properly able to consent to it.
13. In broad terms, the plan proposed that LC should have unsupervised contact with men because, at that time, it was thought that she had become either entirely or largely estranged from her husband. Accordingly, it was considered that contact with men should be in accordance with her wishes but protective of her safety. This, it was thought, could be achieved by permitting her to have unsupervised contact time at home.
14. This plan has been subject to significant public critical comment. It is plain that a number of men took advantage of LC under these arrangements, compromising her safety and her dignity and imposing what, to my mind was, with the enormous benefit of hindsight, an intolerable burden on those supervising her. Thus, the case came, entirely properly, back to court.
15. When it did so on 7^th September of this year one of the orders made was that the case should be transferred to a CoP judge sitting in the High Court and thus it comes before me today.
16. In Family Court Proceedings, in Civil Justice and in the Criminal Law there is a real recognition that delay is frequently in conflict with the objective of the litigation. In Civil and Family Law this concept is embodied in statute: the overriding objective; the avoidance of delay principle. There is no such statutory imperative in the MCA but, as I have said in other cases, the avoidance of delay unless it is demonstrably purposeful, should be regarded as a facet of Article 6 ECHR. Where risk to the vulnerable is identified it should always provoke a timely application back to court if it can not be addressed on the ground.
17. Unusually, and notwithstanding five and a half years litigation, there has, as yet, been no published judgment. It is for this reason, at this Directions hearing, I am giving an ex-tempore judgment, properly to put in the public domain the issues that this case raises so that there can be, as there ought to be, appropriate and informed public debate.
18. LC has been transferred to a residential unit. There, I have been told, she lives with six other women. There are some indications that she enjoys the opportunities for socialising and interaction that this affords her. She is, as the papers bear ample testament, an affable and pleasant young woman. She appears to have settled well.
19. The relationship between LC and her husband continues. It is correct to say that LC has been ambivalent about this. Under the present arrangement, balancing the rights and interests of the other young women in the unit, alongside those of LC to enjoy married life, her husband visits five days per week and stays over on two nights per week. I am told, and I unhesitatingly accept from Mr Hallin, that such units are a scarce resource. The unit is five or six miles from LC's family and husband, and though there is good public transport, the Local Authority has supplemented that by providing a taxi. It's far from ideal but there are many competing objectives in play, not least of which is, of course, LC's continuing ambivalence about the relationship. I am told that the staff are supporting LC and investigating routines and strategies to explore activities that might engage LC more widely.
20. The evidence is that LC has a relatively low IQ but that should not be taken and I know will not be taken as indicating that she is unable to develop interests in different aspects of life. She is not easy to manage. She represents a challenge and the core issues which have provoked the curtailment of her liberties have continued.
21. Ms Kohn of counsel, who appears on LC's behalf (by her litigation friend) sensibly identifies LC's complete failure to engage with Dr Ratcliffe at all in any discussion about sex. Ms Kohn suggests that the problem may very well arise from the fact that Dr Ratcliffe is male. I entirely agree. This is no discourtesy to Dr Ratcliffe, it simply arises from the facts of the case. Indeed, there are other aspects of the evidence which indicate that LC may find it easier to engage with a female therapist.
22. I endorse, the therapeutic plans but need not further burden this judgment with the detail of them. The responsibility to ensure that LC's best interests are met is ultimately mine. It is not a responsibility that any judge carries lightly and, though I had initially thought that respite from the litigation would be good for everybody, not least LC, I feel it necessary to scrutinise more closely the progress of the plan. In the Order counsel will draft, which need not be until 1030am tomorrow morning, I will give permission for a report by a female clinical psychologist to be prepared with a view to a hearing before me in January 2019.
23. There has been concern, if I may say so, finally and by way of postscript, that LC simply does not have capacity to develop her understanding of the consequences of her bad decision-making in relation to sexual partners. Certainly, the indicators to date have not been propitious. But she is only 23. The proposal that a female clinical psychologist take on the work is a very sensible one. Moreover, as I interpret the obligations on the State imposed by the MCA, there is an ongoing obligation actively to promote this capacity. That said, I have no doubt that all involved throughout have been trying to do exactly that. These are intensely difficult issues, properly subject to public scrutiny, and it is right that they should be heard in public. It is now general practice that hearings in the Court of Protection are held in public. The Court of Protection, following the success of the Transparency Pilot, now sits ordinarily in public and without any application being made. Where, as here, reporting restrictions are imposed, pursuant to COPR Rule 4.3 (2), it is entirely limited to protecting LC rather than conferring anonymity.
24. There has been a legal argument as to whether the MCA, by collateral declarations, is apt to limit the autonomy of individuals in spheres where they are capacitous. In simple terms, whether the measures put in place to protect LC in those areas where she lacks capacity may legitimately impinge on her autonomy in those areas where her capacity is established. It has been canvassed that if the court is to restrict LC either in part or, potentially, fully in such a sphere (i.e. where she has capacity), the court ought only to consider such measures under the parens patriae jurisdiction of the High Court. Happily, it is unnecessary for me to resolve that issue today, indeed, it may not arise. It does require to be said that whenever a court has to curtail the liberty of an individual whether capacitous or not, the burden is acute and the responsibility grave. In future, it seems to me, where issues arise that may necessitate restrictions in areas where adults have capacity, these should be heard by a High Court Judge in the Court of Protection. In fact, as I have reviewed the authorities, I note that, historically, these cases have all been considered in the High Court.
25. Both the Family Division and the Court of Protection has had, over the past few years, to feel its way to a more transparent process and to draw back from the overly paternalistic protection of the vulnerable that has arguably characterised this jurisdiction in the past. In that process, the press by and large, if not universally, have shown a careful adherence to their Codes of Practice. Those rules impose strict requirements relating to the vulnerable and children. There is obvious good reason for this. So, I would ask the press here to remember that there is an embarrassed, distressed 23 year old woman at the centre of this case, who is entitled to the highest standard of professionalism from all of us, which includes the press.