Man with history of sex offending has capacity to make decisions in relation to care and support arrangements, Court of Protection judge rules

A Court of Protection judge has ruled that a young man with a history of sex offending will no longer be subject to a Deprivation of Liberty Authorisation.

In DY v A City Council & Anor [2022] EWCOP 51 Mrs Justice Judd DBE concluded that “on the balance of probability, DY has capacity to make decisions as to his care and support”.

The man (DY), is a young man in his 20’s. He has complex needs and is living in accommodation provided by the respondent city council. The application made before the judge was made by DY pursuant to section 21A Mental Capacity Act 2005.

The background to the case was outlined by the judge, who said that by the time DY was about 10 years old he was demonstrating a “variety of problems, which included sexualised behaviour and self-harming.”

In 2016, DY was detained under section 3 Mental Health Act and placed at a hospital unit, after suffering from “serious mental health problems, which included worsening self-harm and suicide attempts”.

In 2017 he was determined to “lack capacity to consent to his detention and treatment” under the Mental Capacity Act.

In 2017 DY pleaded guilty to two offences of sexual assault of a girl aged under 13, and received a 26 month Youth Rehabilitation Order. He was placed on the sex offender’s register for five years with a concurrent Sexual Harm Prevention Order (SHPO) which expires in March 2023, with a residence requirement and curfew.

DY was diagnosed with Autistic Spectrum Disorder in 2011, also with Generalised Anxiety Disorder and Paedophilia. He has continued to be assessed as lacking capacity to make decisions about accommodation and care.

Mrs Justice Judd said DY was being deprived of his liberty pursuant to a standard authorisation pursuant to schedule A1 of the MCA.

It was noted that he was “always accompanied by male staff when he goes into the community, is checked four times a night due to his sexualised behaviour and self harm, and he is not allowed to enter bedrooms other than his own in his placement.”

Mrs Justice Judd said: “Subject to the court being satisfied that the primary focus of the care plan is to avoid harm to DY, I am left with one issue to decide, namely whether DY has capacity to consent to his care and support arrangements.”

It was submitted on behalf of the applicant that DY does have capacity. On behalf of the respondents it was submitted that he does not.

The judge heard evidence from a social worker employed by the first respondent city council, the Best Interests Assessor, and a jointly instructed expert consultant psychiatrist, followed by oral submissions from counsel.

The judge said: “Under s1 MCA [Mental Capacity Act] 2005 a person must be assumed to have capacity unless it established that he lacks it (s1(2)), and is not to be treated as unable to make a decision unless all practicable steps to help him to do so have been taken without success (s1(3)). He is not to be treated as unable to make a decision merely because he makes an unwise decision (s1(4)).”

The judge noted that Paragraph 16 Schedule A1 MCA “sets out the best interests qualifying requirement”;

“16(1) The relevant person meets the best interests requirement if all of the following conditions are met.

(2) the first condition is that the relevant person is, or is to be, a detained resident;

(3) the second condition is that it is in the best interests of the relevant person for him to be a detained resident;

(4) the third condition is that, in order to prevent harm to the relevant person, it is necessary for him to be a detained resident;

(5) the fourth condition is that it is a proportionate response to –

(a) the likelihood of the relevant person suffering harm, and

(b) the seriousness of that harm

for him to be a detained resident.

The judge said in her analysis: “It is the applicant’s case, disputed by the respondents, that the primary purpose of the care plan is the protection of the public rather than to prevent harm to DY. Whilst such a motive would be understandable it is not permissible under the Act.”

She continued: “Having heard and read the evidence and submissions on this point, I have come to the conclusion that the primary purpose of the care plan is to avoid harm to DY. There is no doubt that he poses a risk to the public, but it is also clear that it would be very harmful to DY himself were he to commit further offences.”

“If he were to reoffend he would be very distressed, and engage in self loathing. There would also be the risk of retribution from the public.”

Mrs Justice Judd agreed with Lieven J in Birmingham City Council v SR; Lancashire County Council v JTA [2019] EWCOP 28 that it is a false dichotomy to conclude that the protection of P cannot also include protecting him from harming members of the public. “As in that case, it is strongly in DY’s best interests not to commit further offences, or place himself at risk of further criminal sanctions.”

Mrs Justice Judd noted that in her judgement, this “falls squarely within the meaning of the qualifying requirement in paragraph 16 schedule A1, ‘to prevent harm to the relevant person’. That this harm would come about by his harming others does not detract from this.”

She continued: “The rest of the conditions in paragraph 16 would be met also, subject to my conclusions on capacity.”

Focussing on the issue of capacity, the judge noted that in the Statement of Facts and Grounds dated 25th May 2021, the Best Interests Assessor (BIA) stated that despite DY displaying some insight into his care and support needs he was unable to weigh the consequences of not receiving full support.

In her written and oral evidence, the BIA had stated that she found DY to be contradictory in his responses to questions about his support needs.

In a statement and oral evidence, the social worker responsible for DY’s care said that he was not able to think through the consequences if he was to go into the community unaccompanied. She described him as being “able to talk the talk, but not walk the walk”, the judge noted.

The judge considered evidence from the consultant psychiatrist, who had produced a report in January 2022 and an addendum in April 2022. He had concluded that DY “had capacity in relation to all the domains set out”.

Assessing DY’s capacity to make decisions about his care arrangements with respect to the list of factors set out by Theis J in LBX v K,L,M [2013] EWHC 3230 , the consultant psychiatrist noted that DY was “able to articulate at length his relevant strengths and weaknesses and that it was clear he has an understanding of his care needs, the views of others, and acknowledges a discrepancy between the two.

“He was also aware of the consequences of refusal or withdrawal of care and that care can currently be enforced as a component of the Standard Authorisation and DOL. Perhaps most importantly, he was able to set out a level of care that he believed would be both sufficient, beneficial and would balance his own wishes for a greater degree of autonomy and independence with an umbrella of oversight and protection.”

The judge noted that the consultant psychiatrist had acknowledged that there was a “relevant issue as to the degree to which DY’s decisions as to his care needs and supervision are impaired at times of sexual pre-occupation and whether this would constitute a fluctuating picture of capacity and lack of it”, but by reference to Finklehor’s model he concluded that “the fact that DY can make impulsive decisions regarding further offending does not lead him to make what he describes as an intuitive leap that these are due to an absence of capacity.”

The consultant psychiatrist concluded that reaching such a conclusion confirms that “any further offending should be viewed as the remit of the Criminal Justice System and that this is consistent with the current Sexual Harm Prevention Order (SHPO).”

In her concluding statements, Mrs Justice Judd said: “Having considered all the evidence and submissions, I have come to the conclusion on the balance of probability that DY has capacity to make decisions as to his care and support. I accept [the consultant psychiatrist’s] evidence.”

The judge said she “entirely appreciates” why the respondents in this case are so concerned, “because there is a high risk that DY will reoffend if he is given the opportunity to do so.” However, she agreed with the analysis of the consultant psychiatrist that any further offending was a matter for the criminal justice system.

Mrs Justice Judd said: “The current SHPO is an example of such risk management. The truth is that most sexual offenders and risky adults have capacity, and, like DY are not to be managed by a Deprivation of Liberty within the provisions of the Mental Capacity Act 2005.”

It was concluded that the Standard Authorisation would be terminated in accordance with paragraphs 15 and 16 of Schedule A1 MCA. This means that DY will no longer be subject to a Deprivation of Liberty Authorisation.

The judge noted however that DY will “continue to be offered the same care package he now has (including help with his daily living and medication), and he will be strongly encouraged to continue to be accompanied by at least one care worker whenever he goes out.”

She added: “What this decision changes is that DY will no longer be compelled to accept what is on offer, but I sincerely hope that he does.”

It was noted that the SHPO will remain in force for a few more months, and DY will remain on the sex offender’s register.

Lottie Winson