Council wins Court of Protection appeal over ruling on capacity of 20-year-old man

The Court of Protection has allowed an unnamed local authority’s appeal against a court decision that a 20-year-old man, ZZ, has capacity to make decisions about residence, engage in sexual relations and marriage.

Mrs Justice Theis, vice-president of the Court of Protection, ruled restrictions on ZZ’s conduct should remain in place. ZZ had opposed the appeal through his litigation friend the Official Solicitor.

The local authority appealed against the decision of  HHJ Burrows in August 2023 that ZZ has capacity.

ZZ has a diagnosis of mild learning disability, attention deficit hyperactivity disorder and possible obsessive compulsive disorder.

He suffered sexual abuse as a child and has been convicted of sexual assault on a five-year-old family member, resulting in an Intensive Referral Order for 12 months and a Sexual Harm Prevention Order, which expires in October 2024.

It is a condition of the latter that ZZ does not live or sleep in any premises where there is also a child under the age of 18 years unless approved by the local authority and does not have unsupervised contact with a child.

ZZ was a looked after child but as he approached adulthood moved to a supported living placement in a self-contained flat.

The local authority applied in March 2022 to authorise ZZ's deprivation of liberty and the application was transferred to the welfare pathway in July 2022 due to ZZ’s wish to engage in sexual relations with his girlfriend, TD.

He had been assessed in July 2021 by a consultant clinical neuropsychiatrist to “pose a very high risk of committing harmful sexual acts towards others” because of  “intrusive [sexual] thoughts”, which were deemed obsessional.

ZZ has repeatedly said he wishes to live with TD and her mother without restrictions and is deemed at high risk of absconding, the court heard.

He was examined in October 2022 by Dr Lisa Rippon, who concluded ZZ lacked capacity in conducting proceedings, care and support, internet and social media use and contact with others, but had capacity to engage in sexual relations, to marry, to use contraception and to enter into or terminate a tenancy.

Dr Rippon in March 2023 reconsidered her conclusions, and said ZZ lacks insight into his ability to control his behaviour and stop himself from engaging in behaviour that he knows is wrong.

She said this prevents him from weighing information about sexual activity and he therefore lacks capacity in this area, and that he lacks insight and may behave in public in ways that place him at significant risk of both sexual exploitation and aggressive behaviour and potential reprisals. Dr Rippon then further concluded that ZZ lacks capacity to marry.

The local authority argued that HHJ Burrows had been wrong to find that ZZ has capacity to make decisions about residence, sexual relations and marriage.

Theis J said Dr Rippon's evidence “was, at times, confused and confusing.

“Even with the benefit of a transcript of her evidence it was not easy trying to track through her conclusions. This perhaps reflected the complexities in this case, but also made the task facing this experienced judge much more difficult.”

But she added: “In my judgment the judge was wrong in reaching his conclusion that ZZ had capacity in relation to residence in a number of respects.”

These reasons included that he did not properly analyse the evidence regarding whether ZZ's wish to live with TD and her mother was a pipedream or not, as had been asserted by the Official Solicitor on ZZ's behalf.

Also, the judge “fell into error by not properly considering that the requisite care needed was relevant information to the issue of residence. In my judgment arguably it was.”

Turning to the conclusion about sexual relations, the local authority contended the judge had been wrong to conclude that ZZ lacks capacity to have contact with TD but has capacity to engage in sexual relations with her.

Theis J said she found this aspect of the case “particularly difficult”, but had concluded the judge did not properly deal with various aspects of Dr Rippon's evidence.

This included whether ZZ was able to use or weigh information about consent in the context of his sexual impulsivity and that ZZ's disinhibited sexual behaviour was due to a combination of his mental impairment, which included his cognitive functioning and executive functioning and gave disproportionate weight to the significance of ZZ's ordinary sexual urges/desire.

She said the judge “wrongly equated ZZ's sexual disinhibition with the usual risk-taking of a person of commensurate maturity [and] failed to properly weigh in the balance the evidence that ZZ has a record of sex offending and has been assessed as manipulative and presenting a very high risk”.

Looking at ZZ’s capacity to marry “I am satisfied that in the circumstances of this case that ground of appeal is also established. A consistent feature of the evidence is that ZZ wishes to marry TD and for them to have children”, Theis J said.

She said the case should be remitted to reconsider the question of capacity and the question of whether any deprivation of liberty should continue should be considered at the same time.

Mark Smulian