One of the most common controversial topics in family law is how far can the government impose on people’s natural behaviors? Ideally of course the answer is nothing as long as they don’t do anything illegal in the privacy of their own homes. Saying “Immorality” is no longer supposed to be a tool of government repression.
However, there is one major cause to impinge on their natural rights, and that is to protect people from harm. This is usually seen in orders to protect children, in the issuance of restraining orders against approaching others, and orders made to protect those with mental disabilities.
But to what extent can you prevent someone from seeking their happiness?
This case was heard remotely via Skype for Business under COVID-19 restrictions and was a lawfully constituted hearing that had all relevant steps taken to ensure that the proceedings were sufficiently accessible to those who wished to attend. This hearing was made accessible to the public as an ‘Open Court’ to support rights of the press but delivered in private to protect the people’s privacy and their rights to dignity and self- determination.
A Local Authority recently brought an application seeking declarations and orders that would enable it to properly safeguard a 35-year old man henceforth to be referred to as AW. AW had lived for seven years and still at present in a residential care facility for adults with learning disabilities. He had been diagnosed with autism spectrum disorder and a mild learning disability.
AW was capable of working, and spends time in volunteer charity and was employed in a sandwich shop.
As an adult, AW pursued gay relationships. He spent much time and took pleasure from accessing gay websites, gay chat rooms, and dating sites. He enjoyed watching others perform gay sexual acts in these chat rooms.
As an adult, there had been multiple times that AW placed himself in considerable risk in the company of men he had met through the internet. And then when these relationships sour or encounter difficulties, AW often responded aggressively and had verbally and physically assaulted those around him.
AW had, in addition:
- Run up a significant debt through internet and phone use
- In 2009 he was sexually assaulted by a person he met on the internet
- At least on two occasions displayed inappropriate behavior to others in the community
- Has a poor understanding of social boundaries and risks involved in meeting strangers
- Sent inappropriate pictures of himself to strangers
- Unable without support or supervision to maintain a habitable home environment, maintain nutrition, and develop family relationships
- Nevertheless has “many skills” and can “appear very able” with “relatively good self-presentation skills, verbal skills, and ability to learn phrases.” It was “easy to underestimate his vulnerability and difficulty in applying abstract concepts of safety”.
AW was considered by his carers to be “vulnerable to financial, physical, or sexual exploitation”.
In late 2019, AW had become fixated on a man. He was intent on moving to the man’s residence to take that relationship further.
- Is AW capable of giving lawful consent?
- If so, how is it lawful to make anticipatory declarations of incapacity?
The case relied upon the ‘diagnostic test’ in Section 2 of the Mental Capacity Act (MCA) 2005, which goes:
People who lack capacity
(1) 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.
(2) It does not matter whether the impairment or disturbance is permanent or temporary.
(3) A lack of capacity cannot be established merely by reference to—
(a) a person’s age or appearance, or
(b) a condition of his, or an aspect of his behaviour, which might lead others to make unjustified assumptions about his capacity.
(4) In proceedings under this Act or any other enactment, any question whether a person lacks capacity within the meaning of this Act must be decided on the balance of probabilities.
(5) No power which a person (“D”) may exercise under this Act—
(a) in relation to a person who lacks capacity, or
(b) where D reasonably thinks that a person lacks capacity,
is exercisable in relation to a person under 16.
(6)Subsection (5) is subject to section 18(3).
(18.3) The powers under section 16 as respects any other matter relating to P’s property and affairs may be exercised even though P has not reached 16, if the court considers it likely that P will still lack capacity to make decisions in respect of that matter when he reaches 18.
If a person lacks capacity, they cannot make an informed decision for themselves. Furthermore, a person without capacity cannot give effective consent.
But if AW is adult and aware enough to enter a relationship, then he can give consent, and therefore is of capacity to decide. So how is it possible to lack capacity to care for themselves and yet have capacity to give consent?
MCA 2005 Section 2 (1) states that the impairment in his judgement doesn’t matter if it is temporary or permanent.
Yet if you can forbid someone from getting into bad relationships because you know better, wouldn’t this set a bad precedent? Isn’t it discriminatory against a person’s natural rights to seek their own happiness?
Could you use bad decision-making as a justification to deprive someone of their liberty?
A Dr. Lisa Rippon MBBS, FRCPscyh was instructed by the court to prepare an assessment of AW and provide advice on the issues affecting his capacity.
According to her, AW’s learning disability and autistic spectrum disorder satisfied the ‘diagnostic’ test in section 2 MCA 2005 (“impairment of, or disturbance in the functioning of, the mind or brain”).
She remarked that:
“AW’s presentation is characterised by impulsivity and a limited ability to plan and think through the consequences of his actions, in addition to lack of understanding of social cues in situations. I also believe that AW struggles with theory of mind – i.e. he lacks the ability to put himself in another person’s shoes and view a situation from their perspective. This makes it very difficult for him to interpret the motivations of others. I also believe that AW’s thinking can be very rigid and ‘black and white'”.
“… it is apparent that he has an obsessional drive to be in a relationship, even if this was with someone who was entirely unsuitable, and that being with someone is ‘better than nothing’. I believe that this is linked to his Autism which results in obsessional interests and very fixed beliefs. I believe that AW’s obsessional use of the internet, and the excitement which being in contact with men in chatrooms provokes, has a significant impact on his weighing of information when he is making a decision.”
Dr. Rippon’s presented evidence raised a number of questions:
(a) Is this a case in which “practicable steps” should be taken to assist AW in his decision making?
(b) Does AW demonstrate fluctuating capacity with regard to these aspects of this life?
(c) Is this a case in which it is necessary to consider the grant of anticipatory declarations of incapacity under section 15(1)(c) MCA 2005 (i.e. “the lawfulness or otherwise of any act done, or yet to be done, in relation to that person”) per Hayden J in Guys and St Thomas’ NHS Foundation Trust & South London and Maudsley NHS Foundation Trust v R  EWCOP 4 at ?
(d) When obsessed or fixated with the pursuit of a relationship, is AW simply demonstrating “unwise” decision-making?
In answer to these questions, Dr. Rippon replied that “It is a fundamental aspect of his autistic spectrum disorder and I don’t think that it could be improved by education.”
She referred to a previous assessment in 2018 that “Dr. [N] explained that [AW] has learned the words or phrases but did not understand what they meant, and it was only when you drill down further that this becomes apparent. He would use key phrases and words like “vulnerable” but did not understand the meaning, and did not know how to apply them to himself…”
AW was simply incapable of understanding positive and negative consequences of an action even if explained to him.
As to fluctuation of mental capacity, it appeared to be so but the crux of the matter was if it was to the level he could be said to be capacitous. AW had an obsessive compulsive need to use the internet to meet people and seek sexual gratification, to the point of becoming violent if denied. However, when away from his source of fixation, his ability to weigh information is better, though still struggling to assess the implications of decisions he makes.
And in answer to (c) and (d) it was weighed that “specifically in relation to AW’s choice of sexual partner that as AW is unable accurately to assess the risks which others may pose to him, he is unlikely to be able to (i) assess the support which he requires in having (sexual) contact with others, and (ii) the consequences if he does not have that support.”
However it was also found that AW passes the test in D Borough Council v AB , about a man with a learning disability if he does not have the capacity to consent to sexual relations. AW had demonstrated the capacity to understand the act of sexual intercourse, the risks, relevance, and appropriateness thereof – he can give consent and has the capacity to engage in sexual relationships.
AW’s decision-making process is mired in a strong a strong “obsessional” trait which is “secondary to his autism”. This is manifest in “repetitive types of behaviour”, and “repetitive patterns of thoughts”. In spite of his ability for concrete thinking, he did not seem to learn from his mistakes and by reason of his autism was unable to understand the potential negatives of any particular decision.
The judgment was given by Mr Justice Cobb. AW did not attend nor oversee the proceedings, though his solicitor had raised the option, expressing a wish not to see his solicitor nor social worker. His mother had reported that he had become ‘shut down’ and it was in his best interests that the proceedings come to an end and Mr Justice Cobb’s orders would, therefore, be final orders.
He noted that his judgement “does not establish any great or new point of legal principle. It sets out my reasoning in reaching conclusions in a case which has the characteristics of many which come before the Court of Protection: namely, where the subject of the application is believed to have capacity in making decisions in relation to certain aspects of their life, but not in others; where there are, in such cases, inevitably ‘grey areas’ in between. It recognises the importance of treating each capacity issue as decision-specific and time-specific-”
In conclusion, it was decided that AW:
- Did not have fluctuating capacity to decide, but rather a basic and profound lack of understanding and deficits in his executive functioning;
- AW lacks capacity to make a decision whether an individual with whom he may want to have sexual relations is safe and what support he requires in having contact with that person;
- Lacks the capacity to make decisions about his residence, care and support;
- It was in his best interest to receive care and support in accordance with his needs at the care home he resided in;
- It was in his best interests to receive care and support according to the support plan dated 10 March 2010 and the protocols to support his use of the internet;
- The deprivation of liberty arising from his care and support plan is lawful and in his best interests.
The Support Plan
AW is capable of giving consent. AW lacked the capacity to make decisions as to contact with others, and to access and use the internet and social media. This creates problems for the Local Authority and the court in balancing the positive obligation to ensure that AW was supported in having a sexual relationship should he wish to while ensuring that he is kept safe from harm as far as possible.
The Local Authority stated that it was not their role to vet AW’s partners nor to deny him time with proposed sexual partners simply because the local authority might consider them unsuitable.
The care package approved by Mr Justice Cobb allowed AW to continue to engage with men on dating sites, and if AW wished to meet them in person (subject to COVID-19 restrictions) the person would be risk-assessed before direct contact may be arranged. Care staff would continue to accompany AW to clubs and events where he could engage with potential partners for companionships, and continue to discuss his needs for a relationship while balancing his needs for safety and protection from exploitation.
There were provisions for having visits from others and overnight contact if desired.
In this case, we have learned that it was possible to give consent to sexual relations but still lack the capacity to manage one’s own life or to process dangers. That being said, even an autistic individual is owed basic human dignity and the chance to pursue their happiness in a relationship.
Local Authority cannot forbid someone from attempting to engage with sexual partners and it is not their purview to decide the suitability of potential sexual partners. An individual with special needs must be protected from exploitation and may be deprived liberty only in so far as to protect them in their lack of capacity to decide their own residence and living arrangements. Care should also be available to protect others from them should their lack of capacity to understand potential consequences put them in danger.
As far as practicable for their own health and safety, they should not be deprived of the essential liberty to find emotional fulfillment and sexual release.
Hadaway & Hadaway mental health solicitors North Shields UK.