Jersey Unreported Judgments

Capacity - reasons for the orders made

[2020]JRC150A

Royal Court

(Probate and Protection Division)

31 July 2020

Before     :

T. J. Le Cocq, Esq., Bailiff, and Jurats Ramsden and Austin-Vautier

 

IN THE MATTER OF C

AND IN THE MATTER OF A REPRESENTATION OF ATTORNEY GENERAL

AND IN THE MATTER OF THE CAPACITY AND SELF-DETERMINATION (JERSEY) LAW 2019

Advocate H. J. Heath for the Minister for Health and Social Service.

Advocate B. J. Corbett for D.

Advocate D. V. Blackmore, Amicus Curiae.

judgment

the bailiff:

1.        On 7^th February, 2020, this Court imposed substantial restrictions on C pursuant to its powers under the Capacity and Self-Determination (Jersey) Law 2016 ("the 2016 Law").

2.        Those orders included orders that C reside at a specific address, that she be subject to a care plan that involves substantial supervision and restrictions on her freedom; that she lacks capacity to give consent for arrangements for her placement and where she should reside, her care plan, and her social contact which would need to be supervised; contact with her husband D and her capacity to consent to sexual intercourse.

3.        On that date we indicated that we would hand down our reasons on a subsequent occasion. These are those reasons.

Background

4.        On 9^th December 2019 the Court made declarations in respect of C's lack of capacity to manage her property and affairs.  The Viscount was appointed in her best interests as delegate for her property and financial affairs and that continues to be the position.

5.        C has significant learning difficulties.  She has a long involvement with Health and Community Services to which we will make reference.

6.        C is married to D and this may be characterised, so we are informed, as an on/off relationship.  He resides at a separate address but he reports that he spends almost every night in his wife's company, either at her flat or at his flat.

7.        C clearly finds it challenging to engage with professional assistance and this has caused difficulty in undertaking the assessments necessary for her.

The statutory framework and law

8.        Article 3 of the 2016 Law sets out core principles.  It is in the following terms:-

"(1)     In the application of this Law -

(a)     a person must be assumed to have capacity, unless it is shown that the person lacks capacity in the sense given to that expression by Article 4;

(b)     a person is not to be treated (under Article 5 or otherwise) as unable to make a decision -

(i)      unless all practicable steps to enable that person to make the decision have been taken without success, nor

(ii)      merely because the person makes an unwise decision;

and

(c)     an act done, or a decision made, on behalf of a person lacking capacity must be done or made in the person's best interests.

(2)     Without derogation from the generality of the principle stated in paragraph (1)(c), before an act is done or a decision is made which is restrictive of the person's rights and freedom of action, regard must be had to whether the purpose for which the act or decision is needed can be achieved as effectively in a less restrictive way.

(3)     In paragraph (1)(b) and Articles 2, 4, 5 and 6, "decision" means a decision which is not excluded by the operation of Article 7."

9.        There is a two part test for assessing mental capacity. 

10.      The first part of the test is provided for under Article 4 of the 2016 Law and it is in the following terms:-

"(1)     For the purposes of this Law, a person lacks capacity in relation to a matter if, at the material time -

(a)     the person is unable to make his or her own decision in relation to the matter (as further provided by Article 5); because

(b)     he or she suffers from an impairment or a disturbance in the functioning of his or her mind or brain.

(2)     For the purpose of the application of paragraph (1)(b) it does not matter -

(a)     whether the impairment or disturbance is permanent or temporary; nor

(b)     what the cause of the impairment or disturbance may be.

(3)     Lack of capacity cannot be established merely by reference to -

(a)     a person's age or appearance; or

(b)     a person's condition, or an aspect of a person's behaviour, which might lead others to make unjustified assumptions about the person's capacity.

(4)     In proceedings under this Law or any other enactment, the question as to whether a person lacks capacity for the purposes of this Law must be decided on the balance of probabilities."

11.      The second part of the test, that relating to the ability to make a decision, is provided for in Article 5 of the 2016 Law which is in the following terms:-

"(1)     For the purpose of the application of Article 4(1)(a), a person is unable to make his or her own decision if he or she cannot -

(a)     understand information relevant to that decision;

(b)     retain the information for a period, however short, which is sufficient to make the decision;

(c)     use or weigh the information in making the decision; or

(d)     communicate the decision (whether by speech, sign language, or any other means).

(2)     Information relevant to a decision includes information about the reasonably foreseeable consequences of deciding one way or another, or of failing to make the decision."

12.      The Minister argues that C on the balance of probabilities suffers from an impairment or a disturbance in the functioning of her mind or brain.  With regard to the second test, the Minister argues that C is unable to make a decision and that all practical steps to enable her to do so have been taken without success.

13.      The Court must, of course, consider the evidence in relation to the specific decision or decisions in question.  The Code of Practice, which provides practical guidance for assessing capacity, advises that "a person may lack capacity to make a decision about one issue but not about another".  Accordingly, we must consider specifically whether or not C has capacity to make a decision as to:

(i)        Where she lives;

(ii)       Full time supervision and not being permitted to leave her placement alone;

(iii)      Restrictions on her contact with her husband;

(iv)      Consent to sexual intercourse.

14.      The application before the Court is brought by the Minister for Health and Social Services.  Article 25 of the 2016 Law provides:-

"Applications to Court for exercise of powers under Article 24

(1)     An application for the exercise of the Court's power under Article 24(2) may be made by an applicant who is -

(a)     P, notwithstanding P is alleged to lack capacity;

(b)     P's spouse or civil partner;

...

(2)     An application for such an exercise of the Court's power may be made by a person not mentioned in paragraph (1) with the Court's permission, and in deciding whether to admit such an application the Court must have regard to -

(a)     the applicant's connection with P;

(b)     the reasons for the application;

(c)     the potential benefit to P of the proposed order or directions; and

(d)     whether that benefit can be achieved in any other way."

15.      The Minister has been granted leave to make the application.

16.      If the Court is satisfied that an individual lacks capacity it has a number of powers available to it. Article 27 of the 2016 Law provides:-

"Specific provision which may be made under this Part as to P's health and welfare

(1)     Subject to paragraph (2), the power which may be exercised by the Court or by a delegate in relation to P's health and welfare includes in particular the power of -

(a)     deciding where P is to live;

(b)     deciding what contact, if any, P is to have with specified persons; and

(c)     giving or refusing consent to the carrying out or continuation of treatment by a person providing health care for P.

(2)     Only the Court (and not a delegate) may -

(a)     prohibit a named person from having contact with P;

(b)     direct a person providing health care for P to allow a different person to take over that responsibility; or

(c)     refuse consent to the continuation of life-sustaining treatment."

17.      In making any decision, the Court must have regard to C's best interests. 

18.      Article 6 of the 2016 Law is in the following terms:-

"Best interests

(1)     For the purposes of this Law, a determination as to what is in the best interests of a person lacking capacity -

(a)     must not be made merely on the basis of -

(i)      the person's age or appearance, or

(ii)      any other aspect of his or her condition or behaviour;

(b)     must not be made unless, so far as reasonably practicable, the person lacking capacity has been permitted, encouraged and supported to participate as fully as possible in any act done for or any decision affecting that person; and

(c)     must consider all relevant circumstances, including in particular the matters set out in paragraphs (2) to (4).

(2)     Such a determination must include consideration of whether it is likely that the person lacking capacity will at some time have capacity in relation to the matter in question, and if so, when that is likely to be.

(3)     Such a determination must include consideration, so far as the following matters are reasonably ascertainable, of -

(a)     the past and present wishes and feelings of the person lacking capacity as to the matter in question (including in particular any advance decision to refuse treatment or other written statement made by that person at a time when that person did not lack capacity);

(b)     the beliefs and values of that person which would be likely to influence that person's decision if that person did not lack capacity;

(c)     any other factors which that person would be likely to consider if that person did not lack capacity.

(4)     Such a determination must take into account, if it is practicable and appropriate to consult the following persons, the views of -

(a)     anyone named by the person lacking capacity as someone to be consulted on the matter in question or matters of that kind;

(b)     anyone engaged in caring for that person or interested in that person's welfare;

(c)     any person on whom authority is conferred under a lasting power of attorney granted by that person and applicable to the matter in question; and

(d)     any delegate appointed by the Court under Part 4.

(5)     ...

(6)     ..."

19.      In considering the best interests of an individual the Court must take a holistic approach.  The question of best interests has been considered by the Royal Court in the case of In the matter of P [2019] JRC 002 where Sir William Bailhache, Bailiff (as he then was) said, first quoting an extract from the judgment of Morgan J in Re G (TJ) [2010] EWHC 3005 (Cop):-

"The best interests test involves identifying a number of relevant factors.  The actual wishes of P can be a relevant factor: Section 4(6)(a) says so.  The beliefs and values which would be likely to influence P's decision, if he had capacity to make the relevant decision, are a relevant factor: Section 4(6)(b) says so. The other factors which P would be likely to consider, if he had the capacity to consider them, are a relevant factor: Section 4(6)(c) says so.  Accordingly, the balance sheet of factors which P would draw up, if he had capacity to make the decision, is a relevant factor for the Court's decision. Further, in most cases, the court will be able to determine what decision it is likely that P would have made, if he had capacity. In such a case, in my judgment P's balance sheet of factors and P's likely decision can be taken into account by the court.  This involves an element of substituted judgment being taken into account, together with anything else which is relevant. However it is absolutely clear that the ultimate test for the court is the test of best interests and not the test of substituted judgment.  Nonetheless, the substituted judgment can be relevant and is not excluded from consideration as Hoffmann LJ said in the Bland case, the substituted judgment can be subsumed within the concept of best interests.  That appeared to be the view of the Law Commission also (at para 55)."

20.      And the Court then went on to approve that statement saying at paragraph 28:-

"However, we agree with the comments of Morgan J in Re G, namely that the statutory directions, in our case contained at Article 6(2) - (4) of the 2016 Law - may well have the practical effect that the outcome of the Court's consideration of best interests will not be far away from the outcome of a substituted judgment test.  It will not inevitably be so, but in many circumstances this will be the outcome because the past and present wishes and feelings are likely to align themselves with the beliefs and values of that person, which would be likely to influence that person's decision if he or she did not lack capacity." 

21.      We now turn to the law on the specific decisions that we are called upon to make in this case.

Consent to sexual intercourse/capacity to engage in sexual relations

22.      In Sheffield City Council v E and another [2004] EWHC 2808 (Fam) Munby J set out aspects of the legal test for capacity to consent to sexual relations: he concluded that the question was:-

"Does the person have sufficient knowledge and understanding of the nature and character - the sexual nature and character - of the act of sexual intercourse, and of the reasonably foreseeable consequences of sexual intercourse, to have the capacity to choose whether or not to engage in it, the capacity to decide whether to give or withhold consent to sexual intercourse?"

23.      He further explained that the individual's knowledge and understanding need not be complete or sophisticated. "It is enough that she has sufficient rudimentary knowledge of what the act comprises and of its sexual character to enable her to decide whether to give or withhold consent."

24.      That test was given further consideration in D Borough Council v AB [2011] EWCOP 101 where the individual in question had a moderate learning disability.  Mostyn J expressed the test as follows:-

"I therefore conclude that the capacity to consent to sex remains act-specific and requires an understanding and awareness of: the mechanics of the act; that there are health risks involved, particularly the acquisition of sexually transmitted and sexually transmissible infections; sex between a man and a woman may result in the woman becoming pregnant."

25.      In IM v LM and others [2014] EWCA Civ 37 the Court of Appeal of England and Wales held, with regard to this issue, that:

"a. A narrow construction of 'reasonably foreseeable consequences' as described by Mr Justice Bodey in Re A (capacity: Refusal of Contraception) [2011] Fam 61 was to be preferred (para 80);

b. To do otherwise would be to move towards paternalism, away from the promotion of personal autonomy;

c. The judge's approach in the court below had been correct when he highlighted the following factors (para 83 and para 18):

i. P understands the rudiments of the sexual act;

ii. P has a basic understanding of the issues of contraception;

iii. P has a basic understanding of sexually transmitted diseases;

iv. P had sufficient understanding of the fact that sexual relations may lead to pregnancy.

d. 'Perhaps yet another way of expressing the same point is to suggest that the information typically, and we stress typically, regarded by persons of full capacity as relevant to the decision whether to consent to sexual relations is relatively limited. The temptation to expand the field of information in an attempt to stimulate more widely informed decision-making is likely to lead to what Bodley J rightly identified as both paternalism and a derogation from personal autonomy.' (para 82)"

26.      At paragraph 76 et seq of that judgment the Court went on to say:-

"76. Baroness Hale is plainly right that: 'One does not consent to sex in general. One consents to this act of sex with this person at this time and in this place' [emphasis added]. The focus of the criminal law, in the context of sexual offences, will always be upon a particular specific past event with any issue relating to consent being evaluated in retrospect with respect to that singular event. But the fact that a person either does or does not consent to sexual activity with a particular person at a fixed point in time, or does or does not have capacity to give such consent, does not mean that it is impossible, or legally impermissible, for a court assessing capacity to make a general evaluation which is not tied down to a particular partner, time and place.

77. Going further, we accept the submission made to us to the effect that it would be totally unworkable for a local authority or the Court of Protection to conduct an assessment every time an individual over whom there was doubt about his or her capacity to consent to sexual relations showed signs of immediate interest in experiencing a sexual encounter with another person. On a pragmatic basis, if for no other reason, capacity to consent to future sexual relations can only be assessed on a general and non-specific basis."

27.      In London Borough of Southwark v KA and others [2016] EWHC 661 Parker J said that:-

"The ability to understand the concept of and the necessity of one's own consent is fundamental to having capacity: in other words that P knows that she/he has a choice and can refuse.  I am less certain that consent of the other party is fundamental to capacity."

Where C should reside

28.      In making a determination as to what C's best interests are with regard to her residence, the Court must, of course, keep in mind Article 8 of the European Convention on Human Rights - the right for respect for private and family life, home and correspondence.  Article 8(2) provides:-

"There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others."

29.      In considering this aspect the Court must be satisfied that any interference with C's right to a private and family life is "necessary and proportionate".  The Minister of course submits that it is necessary and proportionate for her to move from her current address to a new address where she can have comprehensive supervision.

Significant restriction on her liberty

30.      Article 5 of the European Convention on Human Rights guarantees the right to liberty and security.

31.      Article 39 of the 2016 Law provides:-

"(1)     A measure listed in paragraph (2) amounts to a significant restriction on P's liberty if it applies to P on a regular basis.

(2)     The measures mentioned in paragraph (1) are that -

(a)     P is not allowed, unaccompanied, to leave the relevant place;

(b)     P is unable to leave the relevant place unassisted, by reason of P's physical impairment or mental disorder, and such assistance as it may be reasonably practicable to provide to P for this purpose is not provided;

(c)     P's actions are so controlled in the relevant place as to limit P's access to part only of that place;

(d)     P's actions are controlled, whether or not in the relevant place, by the application of physical force or of restraint as defined in Article 9(2);

(e)     P is subject, whether or not in the relevant place, to continuous supervision;

(f)      P's social contact, whether or not in the relevant place, with persons other than those caring for him or her in the relevant place, is restricted.

(3)     A measure applicable to all residents at a relevant place (other than staff employed at the place) which -

(a)     is intended to facilitate the proper management of that place; and

(b)     does not excessively or unreasonably disadvantage P in particular,

shall not be regarded as a significant restriction on P's liberty.

(4)     For the purposes of paragraph (2)(b), and for the avoidance of doubt -

(a)     P is not to be regarded as subject to a significant restriction on liberty where P is wholly incapable of leaving the relevant place because of physical impairment; and

(b)     any limit as to the time or duration of any assistance provided to P, which does not excessively or unreasonably disadvantage P, shall not be taken to mean that assistance is not provided."

32.      It is common ground that the proposed care plan for C when she will be subject to 24/7 care/supervision and is not free to leave her placement without supervision does amount to a significant restriction of liberty.

33.      The Court has the following powers under Article 57 of the 2016 Law:-

"(1)     Without derogation from any other power conferred on the Court by this Law or any other enactment, or by its inherent jurisdiction, the Court may, if the conditions stated in paragraph (2) are fulfilled, make an order authorizing the imposition of a significant restriction on P's liberty.

(2)     The conditions mentioned in paragraph (1) are -

(a)     that P lacks capacity in relation to giving consent to the arrangements for his or her care or treatment; and

(b)     that it is both necessary in the interests of P's health or safety, and in P's best interests, to impose significant restrictions on P's liberty.

(3)     An order of the Court under paragraph (1) must state -

(a)     P's name;

(b)     M's name, and the name of any registered person concerned;

(c)     the name of any registered provider within the meaning of the Registration of Care (Jersey) Law 2014;

(d)     the period (of no more than 12 months) during which the order is to have effect;

(e)     the nature, extent and duration of the significant restrictions on P's liberty which are permitted to be imposed by the order, and by whom they may be imposed;

(f)      any conditions or directions in relation to the imposition of any such significant restriction (in particular, but not limited to, directions as to the frequency of review); and

(g)     the full grounds for the Court's decision, with regard in particular to paragraph (2) and sub-paragraphs (d) to (f) of this paragraph.

(4)     In its determinations as to the matters described in paragraph (3)(d) to (f), the Court must have particular regard to the medical evidence available before it.

(5)     The Court may authorize significant restrictions on P's liberty which differ from any such restrictions as may have been recommended under any other provision of this Part.

(6)     Nothing in this Article shall be taken to permit the Court to authorize a significant restriction on P's liberty which conflicts or would conflict with a valid advance decision made by P under Part 3.

(7)     Where the Court considers it is in P's best interests to do so, the Court may authorize a significant restriction which conflicts with a decision of -

(a)     a person on whom P has conferred a lasting power of attorney under Part 2; or

(b)     a delegate appointed by the Court under Part 4.

(8)     Articles 50, 51, 54, 56 and 60 shall apply with all necessary modifications to an order of the Court under this Article as they apply in relation to a standard authorization."

34.      In WCC v GS [2011] EWHC 2244 (Cop), the Court was concerned with GS's capacity to conduct litigation, make decisions in respect of her care requirements and to decide where she should live and issues relating to contact with her family.  The guidance provided by the Court is in the following terms:-

"50.    ...Any consideration of GS's best interests must start on the premise that GS is entitled to see her children and in particular RS. This is of course independent of any rights of RS under Article 8 to see his mother. Therefore, when considering contact, the starting point must always be that there should be full and unrestricted contact between a parent and his or her child and that conditions should only be imposed on that contact if GS's best interests demand it.

51.      In this case, a consideration of GS' best interests will include the safety and wellbeing of GS during contact. I am clear that this is a case where GS' best interests demand that contact have conditions attached to it. I reach this conclusion for these reasons. First, because of the admissions RS makes about his conduct. Second, in the context of this case and RS' admissions, the volume of complaints made by WCC cannot be put to one side and ignored and the court must conclude that there are real issues overall with RS' behavior which could affect contact. Third, although RS behaved properly during the hearing before me, his presentation nonetheless showed that he has the ability to be difficult in a different setting.

52.      Having decided that it is necessary to impose conditions in respect of contact, the imposed conditions must be reasonable and proportionate having regard to their aim and purpose and the context of the overall situation. In this case, I am dealing with contact in a care home where conditions are required to ensure that GS is safe and well. I also need to have in mind that to ensure that contact continues, any conditions must ensure that other residents of FCH as well as its staff are also protected during a contact session.

53.      When considering the types of conditions to impose both generally and in this case, the court needs to have the following considerations in mind. First, that there should be appropriate reviews of the conditions. Nothing should be set in stone and either the court should review the conditions and/or there should be a review by the local authority. Second, given the medical evidence, an end of life plan should be put in place. The health of elderly people can deteriorate quickly and it may come to a point when even members of a family who have been excluded from contact should be able to spend time with their parent or relative. Obviously there will be exceptional cases where the level of harm or potential for harm by a family member against a vulnerable person is such that even in an end of life scenario contact would not be appropriate, but these will be very exceptional and rare cases. Third, the length to which the conditions should address each step of a contact session. Thus, in some cases there will be a need for conditions to manage every step of the way from the arranging of the visit to the arrival of the family member at the home until his departure. In other cases, a more general approach can be appropriate. Fourth, the dates and times of visits will need to be set out clearly in a contact schedule. Fifth, whether a plan is needed to address problems, for example, the family member cannot get to the home on a particular day due to an emergency. Sixth, whether it is appropriate for financial assistance to be made available by a local authority or other relevant third party to the relative for travelling to and from a care home. Seventh, if the visit is to be supervised, who is to supervise and what level of supervision is required. In some cases the supervision may take the form of detailed note taking by an independent person; in other cases it may be a cursory check-up by a member of the care home staff; in yet other cases, the allocated social worker may attend to just keep a watching brief. Eighth, a right for the home or contact supervisor to cancel the visit if circumstances deem it appropriate, either before the visit or during the visit. Ninth, the ability to shorten or lengthen a visit if, for example, the visit is not going well or if the relative has become sick. Tenth, regulation of behaviour. Conditions may include provision that the family member not be rude to or harass staff or other residents, the point of entry and exit to and from the care home, the fact that other residents need to be left alone, that their care should not be interfered with, restrictions as to what food and drink can be brought into the home and the venue in the home for contact. Eleventh, a record of the visit. The level of formality will depend on the situation. In more serious cases every word may need to be recorded and in other cases a note will simply be taken that the visit passed without incident and everything went well."

35.      The Court was referred by D's counsel to the judgment of Hayden J in Tower Hamlets and NB and AU [2019] EWCOP 27 in which the Court, at paragraph 66 said:-

"The Court of Protection deals with human beings who, for a whole variety of reasons, have lost or may have lost capacity.  This may be temporary, permanent, fluctuating or limited to a constrained sphere of decision taking. A declaration of incapacity whether tightly circumscribed or expansive in its scope, should not impose sameness or uniformity.  The personality and circumstances of the incapacitous are as rich, varied and complex as those of anybody else. All this requires to be taken into account when evaluating capacity in every sphere of decision taking. As practitioners and indeed as judges we must be vigilant to ensure that the applicable tests do not become a tyranny of sameness, in circumstances where they are capable of being applied in a manner that may properly be tailored to the individual's situation. To do otherwise would, for the reasons I have set out, lose sight of the key principles of the MCA 2005."

The evidence

36.      The Court has had the benefit of a number of reports and of live evidence. We will inevitably not in this judgment set out at length the evidence that we have considered but all of the contents of the reports and the evidence before us have been taken into account in reaching the decision that we have.  C did not give evidence.

Police Evidence

37.      The Court first heard from a Detective Sergeant of the States of Jersey Police.  He is with the Vulnerable Persons Unit. 

38.      C is well known to the police and she is a frequent attender at Police Headquarters.  Over the last two years she has attended there at least three times a week and sometimes on a daily basis.

39.      Most of the complaints that C makes relate to alleged assault, sexual assault, and larceny.  She makes numerous allegations of rape which the police have sought to investigate.  When these allegations are explored with her, however, she is unable to explain what happened to her in even the simplest detail and she then withdraws the complaints. The police have used, unsuccessfully, a trained intermediary.  Over the last two years she has made fifteen rape allegations including nine separate allegations during the course of last year.

40.      She makes allegations against D who gives the impression of being a controlling and coercive partner.  They are assessed as a high risk domestic couple.  C does not seem able to maintain appropriate living standards and lives in a mess.  She does not feed herself and she hoards many things.  She has many pets and does not wash herself properly. 

41.      During the past week she had made two complaints against D.  The first relates to a complaint that he grabbed her wrist and just the night before the officer gave evidence before us she made a complaint of physical assault against him.

42.      C is very concerned with her possessions and she alleges that D has stolen money from her and other things.  She is, however, confused about what stealing may be as, for example, if D leaves the premises wearing a pair socks that she has bought for him, she thinks that this is "larceny".

43.      D has been warned by the police about the recent allegations and he has also been cautioned concerning rape allegations and the question of consent.  He cannot explain why C makes these allegations.  The picture is an inconsistent one because C will make an allegation against D of common assault and then leave hand in hand with him.  In the officer's assessment C is an exceedingly vulnerable adult and is not capable of looking to her own needs.

44.      During cross-examination by the amicus curiae the officer gave more detail as to the allegations of rape.  From his conversations with her he does not think that C understands the meaning or need for consent nor fully understands what sexual intercourse is.  She has said to him that "no sex is good" and if she experiences any kind of discomfort during sexual intercourse, she is likely to characterise this as rape.  The officer also explained that C would attend Police Headquarters to talk to someone and when she also needs food and drink.

Social Worker Evidence

45.      We heard from the allocated social worker for C. She identified her statements which form part of her evidence.

46.      She explained that the relationship between C and D is a volatile one and C regularly tells D to leave.  The police are frequently called.  She has made a number of disclosures of abuse to the social worker and clearly C believes that her experiences are real.  The social worker has seen C distressed and tearful and highly stressed.  Often she will say that she wants to be with D but she will also say that she did not want him to hurt her, be mean to her, or to take her things.

47.      The Social Services have tried to engage with C concerning her understanding about sexual intercourse, safe sex and the language that she uses. She is extremely difficult to engage with on this subject and does not want to discuss it. She says that "sex is bad" but it is unclear to the social worker whether this is a comment on the moral or personal physical experience of C.  She cannot give examples of when she has either consented or refused sexual intercourse.  She never describes sex in either neutral or positive terms.

48.      It is clear she understands the mechanics of sex and that sexual acts can produce babies.  She understands that it involves penetration.  The social worker is not satisfied that C realises she can say no to D or to any other person who wants to have sex with her.  She does not recognise risk factors in connection with sexual intercourse and she continues to report that she has been raped by her husband.

49.      She is always scared where she is living but she does not seem to appreciate that she can refuse to allow people to come into her accommodation.  She will always open the door and she does not follow advice not to let people in.  The social worker describes C's vulnerability as profound and part of the purpose of wishing to move C to different accommodation is to manage the risk factors in a place that she will have 24 hours support.  There will be positive routines and she can have safe social interaction.  There will be a clear timetable so that she knows what is happening.

50.      There is a transition plan in place and it is accepted that C will find moving very difficult.  Pets are important to her and that may not be possible where she is to go.  It is intended that she moves to a small estate in the east of the island, a two bedroom flat with one bedroom used for staff accommodation.  She would not be locked in, she would have the ability to move around on her own within limits.

51.      In cross-examination the social worker confirmed that the application was made now because C was not engaging with them and powers under the new 2016 Law can assist.  It would be intended that C would receive sex education and that assistance would be made for her to live as full a life as possible.  The move, will however, be stressful to her and will be difficult because of fixation on her possessions.

52.      The move would, however, be to her benefit as none of the people with whom she currently associates, which represent high risk to her well-being, would know where she was.  Being out of St Helier will reduce the risk of unknown people visiting her.

53.      She would be able to see D daily and there would be a contact plan.  Social Services want to do direct work with C to improve her situation and her understanding.  What is intended will offer C a safe environment.  All of the other options had been considered and have been discounted.  It is nonetheless hoped that C will develop as much independence as possible and that would be developed by her long term support of her needs.

Clinical Psychologist

54.      We also had the benefit of the evidence of a clinical psychologist.  Whilst the doctor had not met C she was able to refer to other reports highlighting C's vulnerability and that it was important for C's future treatment to create a trauma free environment for her.  It was difficult to do so as C clearly did not wish to be supervised. 

D

55.      D gave evidence before us and referred to the statement that he had made.  Essentially D told us that he did not like the idea of what was proposed by the Minister and that C did not want to go to the east of the island.  She would not be happy there.  She would, in D's view, run away.  She is not familiar with the east of the island and she would not want to be helped all day and every day. This would make her upset.

56.      In D's view it would be bad that she would not see him so they could be on their own together and that he was not happy at the idea of not having sex with C.

57.      In connection with allegations against him of rape D expressed the view that he was not aware of any traumatic past where C was concerned although "probably in the past other people had raped her". He told us that C can make her own decisions and was perfectly capable to saying no.

58.      In cross-examination, D denied having hit C and did not agree that they are a high risk couple. 

Independent Health Capacity Advocate

59.      We heard from the Independent Health Capacity Advocate, who identified statements and brought them into evidence.  It is clear that C does not want to move to the east of the island and she was aware of D's views which she had shared with her.  The advocate explained that C was quick to contradict herself - for example sometimes she will say that she likes the town but then she will say that she does not feel safe there.  She will say that D hits her or rapes her and then says that she wants to continue her life with him. 

60.      In making complaints, C will use words such as "consent" but she seems to here repeat them by rote and will not necessarily in the advocate's view understand them or the concepts that they describe.  She says that she wants to be independent but C has no idea of the costs of items.  She will say a particular sum is needed but simply be unable to explain what it is needed for.  She is resistant to any interference and she goes silent if she thinks that people are asking her too many questions.  She cannot maintain a conversation and focus. 

61.      The advocate is not sure that C understands that she has a choice about sex and although she believes that C may have a strong sex drive, she does not so it appears to the advocate have the capacity to refuse or to weigh up a situation and decide who to have sex with.  She has used expressions with regard to sexual activity like "it's all disgusting, all sex, all rape". She does not think that a woman should ever initiate sexual activity for example.

62.      A particularly current example was given to us by the advocate of the contradictions presented by C.  C had apparently alleged this morning that she had been beaten last night by D, her legs had been bruised and photographs had been taken but then went on to say that she feels safe with him.

63.      In cross-examination the advocate confirmed that moving would be stressful and possibly distressing for C.

 Independent Expert

64.      We heard the evidence of the independent expert appointed to report on this matter.  He had produced a number of reports including three substantial reports, one dated 21^st October 2019, one dated 14^th November 2019 and one the 6^th January 2020.  Many of the conclusions drawn in his reports were based on a consideration of the papers and the statements and the reports of others who knew C.  He was unable to meet with C because although various meetings had been scheduled, C had not kept them or not stayed. 

65.      That notwithstanding, we found his reports, based as they were on a comprehensive review of the paperwork, to be considered and of considerable assistance to us. 

66.      He expressed the view that C meets the criteria for a diagnosis of mild learning disability. 

67.      Specifically in his report of 14^th November 2019 he dealt with the question of whether or not C had capacity to consent to move from her current home to a placement to be provided by the Minister and consent to a care plan that places significant restriction on her liberty including constant supervision and control without the freedom to leave. 

68.      He confirms in that report that C has a diagnosis of learning disability and that extensive efforts have been made to engage C with support.  He cites from many of the sources on which he has drawn his information in order to make the assessments that he makes and he expresses a view that C is unable to weigh the information relevant to the decisions that she is called upon to make because she has been unable to understand and retain the information that she will be required to evaluate.  She can express her views but there is concern in the lack of consistency in the views she has expressed and his view that this is reflective of a lack of understanding and awareness of the factors relevant to the preferences she has stated.  She has expressed a range of views.

69.      He also believes that C lacks capacity to consent to the proposed move from her current home and lacks capacity to consent to a care plan that would impose significant restrictions on her liberty.  In his view, C lacks capacity by virtue of not being able to understand, retain and thus weigh the information relevant to the decision.

70.      In his report of 6^th January 2020 he addresses the question as to whether or not D has capacity to decide who to have social contact with and to consent to sexual relations.  The doctor carried out a detailed review of the reports available in the case and he expresses the opinion that C lacks capacity to consent to sexual relations by virtue of the impairment of mind associated with her learning disability.  He reflects the fact that many attempts have been made to engage C in discussions about sexual relations and social contact and the like.

71.      During examination in chief, he confirmed his assessment that C suffers from an impairment of mind and agrees that he only met her very briefly and she did not engage with him.  He was however satisfied that real efforts have been made to engage with her and he was struck by the range of approaches that have been attempted.

72.      He was also satisfied that reasonable efforts have been made to ensure that C's understanding of sex and sexual intercourse was properly assessed.  She clearly understands the mechanics of sexual intercourse and that pregnancy may result.  There is no suggestion however that she understands the role of contraception, or the risk of sexually transmitted diseases.  She has no clear understanding of consent and in dealing with this aspect he referenced a number of examples from his later report when, for example, C is reporting as saying that sex is always bad and is "always rape".

73.      The expert, on the material available to him could draw no firm conclusions about C's ability to decide who she socialises with.

Conclusions on the evidence

74.      As we have said, we have not sought to set out all of the evidence that was presented to us in the form of reports and indeed during the course of examination and cross-examination, although we have taken it into account.  To have set it out in full would have made this judgment unwieldy.

75.      Nonetheless, taking all of the evidence into account and considering it in the round and with particular regard to the independent expert's analysis of the evidence and the reports of the latter, we are satisfied that the high thresholds to enable us to make the orders sought by the Minister are met. 

Decision

76.      We are satisfied on the evidence that C suffers from an impairment or disturbance in the functioning of her mind, and furthermore as far as we can see this impairment will be permanent in nature.  Furthermore we are satisfied that she does not have capacity to make decisions that fall to us to consider because she does not understand all the information relevant to the decision, she cannot retain it for a sufficient time to make a decision, and use or weigh the information accordingly.

77.      The evidence to us is clear.  We find that C does not have capacity to make decisions relating to where she resides or the matters raised within the care plan nor to consent or otherwise to substantial restrictions on her personal liberty.  We are satisfied that she is an extremely vulnerable adult who is living a haphazard and somewhat chaotic lifestyle and that she is prey to other people both financially and, potentially, sexually. 

78.      We believe that the change in her accommodation from St Helier to the east of the island would be entirely in her best interests as would the creation of the regime anticipated in the care plan that would enable her to receive the support and protection that in our judgment she needs.

79.      We accept on the evidence that C understands the mechanics of sexual intercourse and that sexual intercourse can give rise to pregnancy.  We do not, however, find that she has sufficient understanding of the possibilities of contraception, and of the possibilities of sexually transmitted diseases. Nor do we think that she understands in any meaningful way the requirement for consent and her right and ability to say no to unwanted sexual intercourse.  We are struck by the way that she characterises sexual activity, her numerous allegations of rape and her refusal to engage in any way with discussions about sex with the professionals who are there to support her.  It seems to us to be clear that enormous efforts have been made to engage with her in this respect, and indeed with regard to other matters of importance within this case, but she has simply been unable or unwilling to do so.

80.      Accordingly we find that C lacks capacity to consent to sexual intercourse.

81.      In our view of the evidence in the round, she also lacks capacity generally in determining who she should socialise with.  She is, as we have indicated, extremely vulnerable.

82.      For these reasons, we made the orders sought by the Minister in this case. 

83.      When we handed down our decision at the end of the hearing, we made some ex tempore observations which amongst other things related to C's capacity to consent to sexual activity.  We repeat those observations now.

84.      It seems to us that the interplay of C's behaviour after sexual activity, by which we mean her going to the police, making accusations of rape and what she has said to others about the nature of sexual activity creates makes it clear that she is hopelessly confused to such an extent that she cannot properly give consent to sexual intercourse and lacks the capacity to do so.

85.      That appears to us to be something, however, that might change with the appropriate intervention and therefore we expressed the expectation that she will as part of the package available to her get education in these matters such as she may reasonably expect to be clear on this subject when the matter comes back for review.  In other words we are not in any sense suggesting that our decision with regard to her capacity to consent to sexual intercourse is "once and for all".

86.      We would wish to express our appreciation to the professionals involved in this case who have provided us with considerable assistance and indeed record our thanks to counsel whose careful preparation and helpful submissions have aided us considerably.

Authorities

Capacity and Self-Determination (Jersey) Law 2016. 

In the matter of P [2019] JRC 002. 

Re G (TJ) [2010] EWHC 3005 (Cop). 

Sheffield City Council v E and another [2004] EWHC 2808 (Fam). 

D Borough Council v AB [2011] EWCOP 101. 

IM v LM and others [2014] EWCA Civ 37. 

London Borough of Southwark v KA and others [2016] EWCOP 20. 

WCC v GS [2011] EWHC 2244 (Cop). 

Tower Hamlets and NB and AU [2019] EWCOP 27.