Capacity, sexual relations and disclosure

Brett Davies examines a Court of Protection case that considered whether a 34-year-old man lacked capacity to make decisions about engagement in sexual relations, about disclosing information about the risk of sexual harm he poses to others, and about allowing the local authority to disclose information about the risk of sexual harm he poses to others.

The case of Re PN (Capacity: Sexual Relations and Disclosure) [2023] EWCOP 44 (Poole J) has four interesting aspects.

First, it is a rare example of there being anxious scrutiny of the link between a disturbance in the functioning of the mind or brain, and the ability to use and weigh the relevant information, often referred to as the ‘causative nexus.’

Second, the court examines the reasonably foreseeable consequences of engaging in sexual relations on the other adult in some detail, concluding that distress and loss of autonomy suffered by the other person, if approached sexually without consent, do not form part of the relevant information.

Third, Poole J cautions against overly-refining the specific decision under consideration.

Fourth, the court considers PN’s capacity to make decisions about sharing information about the risk of sexual harm he poses to others.

The facts

The case concerned PN, who was a 34-year-old man who has lived in residential care for many years due to having significant care needs as a result of his mild learning disability and Autistic Spectrum Disorder (“ASD”).

PN had “…a long history of reported sexual offending…which includes multiple examples of sexual assault by unconsented-to touching, typically of women’s breasts or legs. He has also made sexually offensive remarks, for example in a vape shop in 2018 when he said to a woman working there, “It’s a shame you don’t work at [care home 1] I would pull you by the hair and chuck you around and have my way with you like I do with staff.”

In that context, his capacity to make decisions to engage in sexual relations fell to be determined by the court.

Capacity to engage in sexual relations

The court reminded itself of the starting point for the relevant information for capacity to decide to engage in sexual relations, from the judgment of Lord Stephens in A Local Authority v JB [2021] UKSC 52, [2022] 3 All ER 697 (“JB”),

‘… 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.‘

The court emphasising use of the word “may” because in certain contexts, the relevant information may need to be tailored to be person specific, or to specific characteristics of P’s sexual interests. For example, in Hull City Council v KF [2022] EWCOP 33 the court applied a person-specific approach deciding that although KF had capacity to engage in sexual relations in general, she lacked capacity to decide to engage in sexual relations with a particular person who had subjected her to life-threatening abuse. Because of her impairments she could not understand, retain, and weigh or use information relevant to the decision to engage in sexual relations with that man.

Poole J also gave anxious scrutiny as to the extent of the reasonably foreseeable consequences which PN would have to understand, including whether that also included the reasonably foreseeable consequences to that other person “includ[ing] the distress and loss of autonomy suffered by the woman.”

With some unease, Poole J accepted that JB had decided that an understanding of the foreseeable consequences to that other person, in terms of distress and loss of autonomy was not required. The Supreme Court had reasoned that such consequences “would not arise” (and so were not reasonably foreseeable) since “the other person must have the ability to consent to the sexual activity and must in fact consent before and throughout the sexual activity.”  Poole J explained:-

“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.”

In fact, there was no dispute that PN was able to understand, retain and use and weigh the relevant information at (1) – (3) and (5).  The issue which the court had to examine was whether PN was able to use and weigh information to ensure the other person[s] ‘in fact consent before and throughout the sexual activity.’

In various capacity assessments, PN was able to demonstrate an understanding that if he initiates sexual activity with another person they must be able to consent and they must in fact consent.  In considering the using and weighing of such information, Poole J remarked “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.” In fact, the author considers that an exercise in using and weighing would arise if consent was refused; the adult would then need to use and weigh the foreseeable consequences of proceeding to engage in sexual relations with the other adult without consent, including that he may enter the criminal justice system in such circumstances.

The focus of the hearing was on PN’s conduct ‘in the moment.’ PN’s sexual “assaults appear to be opportunistic: if he finds himself near a woman, unsupervised, then he may go closer to her and touch her sexually without her consent.” In the moment, PN did not stop and think about consent in the way that he demonstrated during assessments in the cold light of day.

The issue crystalised before the court as why PN did not stop and think about consent in the moment of sexual touching. Did his ASD cause him to be unable to stop and ask the other adult, in which case, he would lack capacity; or was it some other reason?

Poole J found that PN’s impulsivity, and inability to stop and ask for consent before sexual advances are made was not related to PN’s ASD, and that he had capacity to engage in sexual relations:-

“…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….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.”

Poole J recognised that “…if it is found that PN chooses to disregard the consent of others to sexual touching, rather than being unable to understand, retain and use information that consent is necessary for sexual relations, then he may be found by the police or others in the criminal justice system to be capable of committing criminal offences.”

Capacity to decide to disclose information to others

Poole J made clear his reservations about whether the Court of Protection should address the decision about whether an adult has capacity to decide to disclose information to others since the clear motivation was protection of others, rather than PN’s best interests:-

“…I am put in mind of the young David Copperfield being forced to wear a sign on his back warning others, “He bites”. A capacitous person with an offending history might struggle with decisions about when and how to share that information with others. Would it be on first meeting, or when a relationship was established? Would the information be given with caveats such as “I have never been convicted”? In any event, under the MCA 2005, “best interests” decisions about sharing information would have to be in PN’s best interests, not in the best interests of those whom the decisions might protect.”

Poole J considered the relevant information to be:-

• 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, including that disclosing this information may likely lead to a breakdown in any potential relationship.

In PN’s case there were a number of ways by which information might be shared, 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.”

The key focus was on whether PN actually accepted (and so understood) that he posed risks to others of a sexual nature. The expert psychiatrist was clear PN did not do so; he had denied each and every allegation put to him, and for the expert, that demonstrated PN felt he was not a risk. However, the court preferred the evidence of the Local Authority social worker, which was clear, coherent, and logical:-

“Mr Curran considered that PN was aware of his past offending and that the denials were motivated by embarrassment and fear of the consequences of making admissions… He accepted that he had been accused of “touching female staff between the legs”. During discussions with Mr Curran about what others might need to know about PN’s past sexual offending, which I shall address later in this judgment, PN said that someone might want to know his history “so they can protect themselves”

The author considers Poole J’s judgment throws focus on standing back and looking at the bigger picture, rather than focusing on specific exchanges in an interview undertaken as part of a capacity assessment. PN’s recognition about why others might need to know about his past sexual offending, and his understanding of the specifics of his care and support plan, led to a clear inference that he did accept he posed a risk of harm to others.

As to the decision at hand….

Poole J cautioned against overly-refining the specific decision under consideration, and rather suggests “…it might be simpler and of more practical use to focus on the core decision-making areas, such as residence, care, contact, marriage, sexual relations, property and affairs, use of social media and the internet, and conduct of litigation, but to be astute to apply the principles involved in assessing capacity to the particular individual characteristics and circumstances of P.”

The court was keen to avoid reaching conclusions on capacity for particular specific matters which overlap significantly with other decisions: “The more refined the decision-making under consideration, the more difficult it can be to delineate the boundaries between different kinds of decision-making and to implement practical care and support.”

The author has been involved in cases where issues like this arise. For example, in more than one case, experts instructed to assess an adult’s capacity as to where they should live have, of their own volition, refined the decision to ‘deciding between two options where care and support would be provided to meet social care needs’ – and so removing from the core relevant information (arising from LBX v K, L and M [2013] EWHC 3230) “what sort of care he would receive in each placement in broad terms.”  Such refinement is, in my view, unhelpful, and rather, captures P’s wishes and feelings about where they would want to live. If the decision is refined in such a way, then adults who actually lack capacity about where to live (without refinement) risk being treated as though they have capacity, and left in a care home without the protection of the Deprivation of Liberty Safeguards, or the COPDOL 11 process, risking a return of Bournewood gap type scernarios.

It appears that the message from Poole J is to carefully consider whether the matter at hand does warrant consideration separate from the more established, core matters of decision making, with which practitioners are more familiar.

Brett Davies is a barrister at Spire Barristers. He represented the Second Respondent.