Capacity, sexual relations and public protection – another go-round before the Court of Appeal

Alex Ruck Keene KC (Hon) analyses the latest Court of Appeal judgment to consider the issue of capacity to engage in sexual relations.

Re ZX (Capacity to Engage in Sexual Relations) [2024] EWCA Civ 1462 is a leapfrog appeal from a Tier 2 Judge to the Court of Appeal; a relatively recent innovation.  It concerns the thorny issue of capacity to engage in sexual relations. At first instance HHJ Burrows had been confronted, to his considerable (and understandable) disquiet, with the need to determine whether an 18 year old man had capacity to make decisions about engaging in sexual relations with others.  His discomfort arose from the fact that the local authority was having to have recourse to the Court of Protection to respond to a situation where the man in question was posing a (largely self-reported, but on the face of it non-trivial) sexual threat to others, but whether neither mental health services nor the criminal justice system could respond.

The independent psychiatric expert, Dr Ince, changed his mind, following the decision of Theis J in A Local Authority v ZZ [2024] EWCOP 21, which Dr Ince considered had changed the law.  In particular, Dr Ince took the view that there was sufficient evidence to demonstrate that what ZZ said within an assessment setting could not be relied upon, and that he continued to display a range of behaviours that disregarded the norms and education provided to him.  HHJ Burrows considered that:

In order for me to reach the conclusion that ZX lacks capacity to consent to sexual activity I need to be satisfied on the basis of all the evidence I have read and heard that ZX is not be able to satisfy the JB test and particularly “in the moment” in the real world, rather than in a mental capacity assessment with Dr Ince.

At paragraph 115 HHJ Burrows held that:

At the moment this judgment is written, I am satisfied that his behaviour in connection with sexual activity in combination with his mental disorder [identified earlier in the judgment as conduct disorder, ADHD and attachment difficulties] means that he is unable to use and weigh relevant information concerning his would be or actual sexual partner’s refusal to, or withdrawal of, consent in in real time.

Three grounds of appeal were put forward:

• That HHJ Burrows had applied the wrong legal test to the decision, and in doing so erroneously lowered the standard and quality of evidence that was required to rebut the presumption of capacity enshrined in s.1 MCA.
• That HHJ Burrows was wrong to conclude to that ZX lacked capacity to consent to sexual relations by reason of being unable to use or weigh information “in the moment”.
• That HHJ Burrows was wrong to consider wider issues relating to the protection of the public and the non-availability of mental health services and/or involvement of the criminal justice system when determining whether ZX had capacity to make the decision; and to accept the evidence of Dr Ince given Dr Ince’s reliance on these considerations.

Baker LJ, giving the lead judgment identified as a starting point that:

58. The assessment of capacity to engage in sexual relations presents challenges to psychiatrists and judges alike. The evaluation of whether P is unable to understand, retain, weigh and use the information identified in JB because of an impairment of, or disturbance in, the mind or brain is never straightforward and often difficult.

However, he continued:

In this case, there were specific difficulties which made the assessment undertaken by Dr Ince and the judge even more arduous than usual. I regret to say, however, that the decision that ZX lacks capacity to engage in sexual relations was flawed and will have to be reconsidered.

He made clear that:

59. The approach to be followed when assessing capacity in this area under sections 2 and 3 of the MCA is as prescribed by the Supreme Court in JB. It has not been materially amended by any subsequent decision. The decision in Re PN did not change the law. In some cases, as suggested by Poole J, it may be appropriate to focus on whether P is able to use the relevant information “in the moment”, (i.e. when he is initiating, or about to initiate, sexual activity with another person) and, if not, whether that inability is due to an impairment of, or disturbance in, the mind or brain. The second limb of the information specified in JB includes not only “the fact that the other person must be able to consent to the sexual activity” but also that the other person “must in fact consent before and throughout the sexual activity”. That is consistent with a focus on whether P is able to use the information “in the moment”. It is also entirely consistent with the observation of this Court in Re M, endorsed by the Supreme Court in JB, that “the notional decision-making process attributed to the protected person with regard to consent to sexual relations should not become divorced from the actual decision-making process carried out in that regard on a daily basis by persons of full capacity”.

Further:

60. Similarly, the decision in Re ZZ did not change the law in this regard. In that case, Theis J allowed an appeal because of a series of errors by the judge at first instance. I am unclear why it was considered necessary or appropriate in the present case to send Dr Ince a 3-page summary of the decision. In their submissions to this Court, Mr O’Brien and Ms France-Hayhurst stress that it was never suggested to Dr Ince that Re ZZ had changed the law, the “test” in JB, or the “threshold”. But it is plain from the transcript of the hearing on 2 May that Dr Ince thought it had. His response to receiving the 3-page note was to study the whole judgment on BAILII. He said that “in the light of the ZZ judgment I’ve revised my view around capacity to engage in sexual relations”. Later he said that he thought the decision had “changed where the bar is”. This misinterpretation undermined the reliability of his conclusions in his addendum report.

In turn:

61. In his judgment, the judge correctly stated that Re ZZ had not changed the law but was rather an application of the existing law. But he did not give sufficient consideration to whether Dr Ince’s misunderstanding about the judgment undermined the reliability of his revised opinion. I accept Ms Butler-Cole’s submission that the erroneous basis on which Dr Ince proceeded significantly raised the bar as to what a person needs to understand in order to have capacity.

62. For those reasons, the whole process of assessing capacity in this case was flawed. The judge should have declined to proceed on the basis of an assessment conducted on an erroneous basis. I also accept Ms Butler-Cole’s submission that, given the radical change in Dr Ince’s understanding of the basis of assessment between his first and addendum reports, the proper course would have been to direct a further interview and assessment before the court reached a conclusion.

Baker LJ then went to make clear, in any event, why HHJ Burrows’ approach was flawed on its own terms:

64. The central planks of Dr Ince’s analysis were (1) that ZX’s impulsivity was the reason for concluding that, “in the moment” of sexual activity with another person, he was unable to use or weigh the fact that the other person must be able to consent to the sexual activity and must in fact consent and (2) that this impulsivity was due to his diagnoses of ADHD, conduct disorder and attachment difficulties. The judge rejected Dr Ince’s view that ZX was acting impulsively, holding instead that he was “cunning”, “opportunistic” and “capable of planning sexual contact with other people within the context of such liaisons being forbidden”, but nevertheless concluded that he lacked capacity in this area. His conclusion was flawed for two reasons.

65. First, the judge erred in basing his conclusion on the basis of ZX’s history of offending. That pattern of conduct is not by itself indicative of an inability to understand, weigh or use information about consent. It is at least as consistent, if not more consistent, with having the ability to understand and use the information but choosing not to do so. Whilst not endorsing the terms in which the judge described ZX’s conduct, Ms Butler-Cole acknowledged that there were “multiple examples of ZX expressing his intention to offend”. The judge concluded at paragraph 114(10) and (11) that “there is a good deal of evidence from ZX himself and his brother that he has engaged in non-consensual sexual activity with other people over the years” which “considered within Dr Ince’s conceptual framework (post ZZ, in any event) does allow me to conclude that ZX does not “pass” the test in JB at limb (2)”. But a key element in Dr Ince’s “conceptual framework” was ZX’s impulsivity. If that is removed, the only evidence is the history of non-consensual sexual activity. There is no explanation in the judgment of why the judge concluded that this history established that a young man who was “cunning”, “opportunistic” and “capable of planning sexual contact with other people within the context of such liaisons being forbidden” was unable to understand, use or weigh information about consent.

66. Secondly, even if the judge was entitled to find on the basis of the history of non-consensual sexual activity that ZX was unable to use or weigh information about consent, he failed to establish a clear causative nexus between that inability and his mental disorders as required by s.2(1) of the MCA as explained in JB. At paragraph 114(5) of the judgment, he listed a number of deficits in ZX’s cognitive functioning identified by Dr Ince as attributable to the presence of a neurodevelopmental disorder, including not only poor impulse control but also impaired working memory, inattention, difficulties with planning, cognitive flexibility, and emotional regulation. The judge asserted at paragraph 114(6) that these features “would certainly apply where he was involved in sexual activity and there was an absence or withdrawal of consent by the other party”. That is not a sufficiently clear causative nexus between what the judge found to be an inability to use or weigh the information and ZX’s neurodevelopmental disorders. I agree with Ms Butler-Cole that there is no sufficient analysis in the judgment of what other features of ADHD and ZX’s other disorders, aside from impulsivity, resulted in his being unable to make a decision despite understanding and retaining all the relevant information about engaging in sexual relations.

67. The judge’s failure to focus on the need to establish a clear causative nexus between ZX’s inability to use or weigh information needed to make a decision to engage in sexual relations and an impairment of, or a disturbance in the functioning of, his mind or brain leads me to conclude that there is force in the assertion in the first ground of appeal that he applied the wrong test and proceeded on the basis stated in the judgment that “there must be a connection between the disturbance in the functioning of the mind or brain and using and weighing of the relevant information” (emphasis added). “A connection” is insufficient. The presumption of capacity can only be rebutted if there is a clear causative nexus between the inability to make a decision and an impairment of, or a disturbance in the functioning of, the mind or brain.

Baker LJ took a different approach to the third ground, however.  He endorsed the following concerns of Poole J in Re PN:

following JB, there may be a natural desire to protect those with whom P might want to have sexual relations, in particular in cases where P has a history of sexual offending. Lord Stephens repeatedly refers to the MCA 2005 protecting not just P, but others …]. However, it seems to me, although the issue of the consent of others to sexual relations has entered the list of relevant information, the Court of Protection must not allow the desire to protect others unduly to influence a clear-eyed assessment of P’s capacity. The unpalatable truth is that some capacitous individuals commit sexual assault, even rape, but also have consensual sexual relations. An individual with learning disability, ASD, or other impairment, may act in the same way, but it is only if they lack capacity to make decisions about engaging in sexual relations that the Court of Protection may interfere. If P would otherwise have capacity, then the court should not allow its understandable desire to protect others to drive it to a finding that P lacks capacity, thereby depriving P of the right they would otherwise have to a sexual life. The Court of Protection should not assume the role or responsibilities of the criminal justice system.

However, Baker LJ was not “persuaded by [the Official Solicitor’s] argument that the judge took wider issues relating to the protection of the public into account when determining whether ZX had capacity to engage in sexual relations.”

71. Plainly the judge was deeply concerned about the risk posed by ZX to vulnerable people. This is evident from the transcript of Dr Ince’s evidence and from the judgment (including, for example, his expression of shock in paragraph 39 of the judgment quoted above). At paragraph 64 of his judgment, citing the passage from PN quoted above, he stated that requirement (2) in JB “leads to the somewhat odd conclusion that one should allow those the Court is considering to be able to commit serious sexual offences unless they lack the capacity to understand that the other person’s consent to sexual activity is needed.” I am satisfied, however, that, although he remained concerned about the risk posed by ZX, he did not allow these concerns to influence his decision about capacity. At paragraph 114(12) of his judgment, he said:

“I have to avoid what has been called the protection imperative. I must not tailor my formulation of the capacity assessment to ensure a particular outcome”.

The Court of Appeal could not, itself, determine ZX’s capacity: instead:

73. […] There must be a fresh psychiatric or psychological assessment, which will be further informed by the recent finding by his treating psychologist that that ZX meets the criteria for intellectual disability or learning disorder. The assessment should be conducted on the basis of the principles set down by the Supreme Court in JB. As part of that, it would be helpful in this case if the assessor could attempt to establish whether ZX has the ability to use information about consent “in the moment”, that is to say when he is engaged in sexual activities with another person, relevant to the decision whether to engage in sexual relations.

Comment

Sexual capacity remains an area of almost impossible legal and ethical complexity. This judgment shows that the Court of Appeal is very live to the need to ensure that the Court of Protection does not become an arm of the criminal justice system, but it is very clear that it is going to continue to have an uneasy relationship with it going forward. It is also very clear that public authorities aware of sexual risks posed by those for whom they have statutory responsibilities will continue to have to steer a very careful line – and a line to which recourse to human rights arguments unfortunately makes no clearer or broader.

The judgment is also of importance for reinforcing the need for clarity in explanation as to precisely how a person’s inability to make a decision is caused by the relevant impairment or disturbance in the functioning of their mind or brain.

Alex Ruck Keene KC (Hon) is a barrister at 39 Essex Chambers. This article first appeared on his Mental Capacity Law and Policy blog.