Autoerotic asphyxiation: capacity and best interests

By Sarah Daniel,  18 December 2020

Editorial note: The judgment is published here: AA (Court of Protection: Capacity To Consent To Sexual Practices) [2020] EWCOP 66 (15 December 2020)

A one-day hearing before Mr Justice Keehan (COP 13408216, 27 November 2020) was the first virtual hearing I’ve attended. It was also the first hearing I’ve observed in the Court of Protection.

I emailed at 8pm the day before and received a reply with a link to join the hearing via MS Teams just after 10am on the day of the hearing: court was scheduled to begin at 11am.  Admittance was unproblematic.

This case centred around whether an individual, let’s call him ‘James’, had capacity to decide whether or not to engage in a sexual activity known as autoerotic asphyxiation (AEA), the practice of strangling or suffocating oneself during masturbation to heighten sexual arousal. The question of capacity also concerned James’ engagement with other individuals on the internet.

I am currently studying for a Graduate Diploma in Law (GDL) – however my background is predominantly based in other areas, having completed an undergraduate in History and a postgraduate in International Development. I approached this hearing in the hope of gaining invaluable experience in regard to the specific legal proceedings in the Court of Protection and to learn about the application of the Mental Capacity Act 2005. In turn, I thought my knowledge of the law (albeit still rather limited) and my experience of in-person court hearings would be my strongest asset to witness and comment on this case. However, it turns out that the analytical tools I acquired in my history degree, specifically the in-depth source and evidence comparison, proved most valuable given the nature of the hearing. Little did I know, my first virtual hearing was to be a very unusual one indeed. 

I will be honest and admit that there were a few moments in the earlier stages of the hearing where I wasn’t sure if I was going to be able to keep up. On top of the adjustment to a virtual courtroom, understanding the specifics of the Mental Capacity Act, and taking accurate notes of important information, I did not also expect to have to engage with technical medical information from a variety of experts. 

But I am glad I persisted, because I think, given my background, I am able to offer a different, but distinctive, perception of the hearing. 

What made this case unusual was that the two medical experts who’d examined James, disagreed about his capacity. Both had met James. Both had produced reports for the court. In a similar way that one might probe the accounts of two contrasting historical sources, I was able to observe the hearing from this perspective, carefully listening and evaluating both testimonies. 

I was not alone in observing the hearing, quite the contrary. It was noted in the beginning that seventeen people were publicly observing. James did not speak at any point and there was no indication that he was present.  I am told by Celia Kitzinger, who observed a previous hearing (on 28 August 2020), that the judge had spoken with James that morning and he was “in very good spirits” but had declined the opportunity to observe that hearing. It seems likely he had similarly decided he’d rather not be present today. 

To begin with, the clerk ran through the expectations of the court in relation to observer conduct and confirmed counsel. Mr Neil Allen represented the Local Authority and Mr John McKendrick QC, instructed by the Official Solicitor, acted on behalf of James.  When Mr Justice Keehan joined the conference call, Mr Allen reminded us all about the Transparency Order (I requested this to be sent to me after the hearing). With permission, Mr Allen summarised the facts as they stood at that point.

James was an eighteen-year-old man who, until August of this year, lived under a care order in a children’s home, following allegations of sexual abuse in his earlier years. Presently, he is living in a 24-hour supported living arrangement and was due to move next month. James has been diagnosed with autism spectrum disorder (ASD), Asperger syndrome (AS) and Attention deficit hyperactivity disorder (ADHD).  Currently, he is engaging in autoerotic asphyxiation (AEA), a practice in which, as stated, sexual excitement is increased by restricting oxygen supply to the brain. He has also been using the internet to post on the dark web, advertising his wish to be a submissive sexual partner, and to be kidnapped and raped.

The task of the court was to determine whether James had the capacity to make relevant decisions, including his practice of AEA and use of the internet – and if not, whether restrictions on these activities would be in his best interest. Specific attention was placed on the danger of accidental death and brain damage as a result of AEA and James’ lack of capacity to use the internet safely to engage with others. 

The position of the local authority was that James lacked capacity to make decisions in relation to AEA and internet use. The position of James (via the Official Solicitor) was that James did have capacity to make decisions in relation to AEA and internet use. 

My Experience of the Hearing

The feeling which struck me when I was first admitted to court was one I did not originally expect: intrusiveness. There is something odd, almost disconcerting, about being privy to such an important decision in another person’s life, all from the comfort of home. Dressing for court, arriving at court and standing at the appropriate times prepares you for a hearing, and this is lacking when observing a virtual courtroom. Having said that, the gravitas of court was still there. Despite knowing I was on mute and that nobody could hear me, the respect you must show to the judge, counsel and the witnesses when they speak still remains and I found myself remaining silent as if I was sitting in court for the entirety of the hearing. 

First and foremost, the term ‘autoerotic asphyxiation’ was unfamiliar to me and so it required a bit of on-the-side Googling and a later discussion with my Dad who is a health professional.  This was the case with other technical terms. ‘Pup play’, for example, the practice of role-playing as a dog for sexual gratification, required research. Even medical terms I was familiar with like ‘autism’ demanded attention as the specific nature of the disorder was extremely relevant.

It was evident that the crux of this hearing would centre on the examination of the medical expert witnesses. Dr Chris Ince appeared as a witness for the local authority, Dr Ivan Burchess for James (via the Official Solicitor). Their reports provided the court with conflicting evidence.  

Dr Ince – evidence in chief

Dr Ince, a consultant psychiatrist specialising in autism, provided testimony first. The initial focus was on whether James’ practice of AEA was a manifestation of his autism and, if so, whether he lacked capacity to engage in this activity. Dr Ince stated, “the question is to what extent is this a discreet circumscribed paraphilic interest in AEA, and to what is this a manifestation of his underlying mental disorder i.e. his ASD”. In other words: “is this a primary sexual preference or is this a manifestation of his ASD?” Mr Allen probed Dr Ince, asking whether James’ AEA was a ‘manifestation’ of his autism. He replied by describing that James’ AEA was a “function” of him addressing his own sensory needs, that AEA was a self-confessed “addiction” for him. Dr Ince was clear that he would not view this as “solely a primary paraphilic disorder”. He went on to note James’ wearing of tight clothing and dog collars, and that this pressure James was creating immediately related to his sensory profile. Dr Ince argued James “need[ed] to understand the context of his presentation and his behaviour within his ASD” because this would have a significant impact in relation to his future life, not just in regard to the issues discussed at today’s hearing. Dr Ince’s testimony firmly established that he believed James lacked capacity to make decisions in relation to his practice of AEA.

On the whole, I found Mr Allen’s questioning of Dr Ince incredibly difficult to follow. Given that there had been a previous hearing which I had not been present at and a written report which I had not read, it was challenging to decipher the testimony and draw out key points. 

Cross-examining Dr Ince

Mr McKendrick conducted the cross-examination of Dr Ince. Notably, there was a significant contrast in the atmosphere, more so than I would normally expect from a cross-examination. The experience was uncomfortable at times as the tones of both Dr Ince and Mr McKendrick were slightly hostile. For example, on one occasion, Dr Ince made a point of saying that he would like to answer the question posed to him by Mr McKendrick, as he had been unable to do so.  

This examination struck me as one of the most important moments of the hearing. In response to Mr McKendrick’s questions, Dr Ince showcased that James is unable to ‘weigh up’ or ‘understand’ the practice of AEA, both which are crucial to establishing capacity. When asked about the causative link between James’ decision-making, from the ASD to the AEA, Dr Ince clearly asserted that, “in my assessment [James] was clear as to the risks relating to plastic bags but could not equate that to a greater or lesser risk with collars or ligatures”. With this in mind, without the ability to weigh up objects he was using to asphyxiate himself, James would lack capacity to make this decision. 

At this juncture, Mr McKendrick began reading aloud passages to Dr Ince, passages which had not been included in the doctor’s bundle. This only added fuel to the fire. Dr Ince, clearly skilled and experienced as a medical expert witness, probed and largely unravelled the passages read to him in a careful and methodical way. Surely James is aware of the risks of AEA, asked Mr McKendrick, if he has relayed to a medical professional that brain damage could result from this practice? Yet Dr Ince pressed for further information. He uncovered that James was not asked to define “brain damage” and, thus, it was arguable he was simply regurgitating the phrase which, coincidentally, Dr Ince had introduced to James five days prior.

In a similar way, Mr McKendrick outlined that James seemed to have considered different methods of asphyxiation as he knew collars were for “pup play” and not for “strangulation”. However, Dr Ince testified that “pup play” was a concept introduced to him during one of their consultations and, thus, in a similar way to the use of “brain damage”, could simply have been restated by James at a later date. Dr Ince was clear: although James had demonstrated that he could retain words, this did not mean he could understand them. This was crucial evidence, given that ‘understanding’ relevant information is key to capacity.  

Dr Ince was also very clear on James’ capacity in relation to his internet use. He said that James did lack capacity to engage with others online, and this was specifically related to his sexual interests. In his opinion, James does not recognise that some people may take advantage of him – for example, James had released his “school timetable” to men online and asked them to put him “in a cage”.

Throughout the examination, I considered Dr Ince’s pauses and moments of reflection to be indicative of his uncertainty.  Yet, on reflection, I realise this is not the case. I now wonder if Dr Ince slowed for the benefit of the court and those observing, like me, who were struggling at times to follow the technicalities of the testimony. As the court adjourned for lunch, I would have described Dr Ince’s report as a slam-dunk. The medical evidence formed a clear enough picture to counter the presumption of capacity. By lunchtime I was convinced that James lacked the capacity to practice AEA and to engage with others online. 

Dr Burchess – evidence in chief

Dr Burchess’ afternoon testimony blurred the clarity of this picture significantly. He was asked whether his opinion had changed about James having heard Dr Ince’s examination. “Not really” he responded, before moving on to describe James’ “vulnerable preoccupations” and his “atypical sexual behaviour”. But Mr McKendrick pressed again: had the “core conclusion” of his “first report” altered? Dr Burchess testified this had not changed. It turned out, however, that Dr Burchess had not assessed James’ capacity to engage in AEA (despite having been so instructed, see para. 27 of the judgment).

Cross-examining Dr Burchess

There were a number of moments in the cross-examination which struck me. 

First, not only did Dr Burchess disagree with a number of the points in Dr Ince’s reports, he also fundamentally disagreed with multiple diagnoses James had received. He offered three key examples. James had been diagnosed to have “moderate learning difficulty”, yet he had “an IQ of over 70 so he does not”; James had been informed he had ADHD, yet Dr Burchess had found little evidence of this; James was described as anxious and depressed, yet Dr Burchess did not conclude this from his consultation.

This was the only moment in the hearing at which I would describe myself as shocked. Surely this casts doubt over all of the medical evidence in this case as the foundational conditions ascribed to James were considered to be wrong by one of the experts? At one point, Dr Burchess described his position as “flabbergasted” and I think this is a pretty accurate summary..

Second, I believed one of the main cruxes of the hearing was James’ capacity to practice AEA. Yet, Dr Burchess had not covered this in his report and said he was “uncertain” in this regard. This seemed very strange to me as it was a crucial component of the hearing.

Third, I felt this was the first time the court really got a sense of Mr Justice Keehan’s opinion. Interjecting his own observation following a question directed at Dr Burgess by Mr Allen in relation to capacity, he stated “We don’t have a baseline from which we can confidently work” and without a clear understanding of his own needs, “how can [James] accept or refuse when he doesn’t know?”.  I believe Mr Justice Keehan was referring to James’ own lack of assessment in relation to what his needs were. On a number of occasions, James’ lack of sensory profile assessment was discussed in the hearing by both medical experts, so this may be what Mr Justice Keehan refers to when he notes the baseline that James is lacking. This issue is referred to multiple times in the judgment (e.g. para. 24 of the judgment).

On the matter of James’ capacity to use the internet, Dr Burchess clearly asserted his position. When asked by Mr Allen, “Do you agree with [Doctor Ince] that [James] finds it difficult to assess motives online?”, he said that James knew what the risks were, and that he could make “informed decisions”. Though Dr Burchess was concerned that James might make the “wrong decisions” as he had a “strong drive” which could result in harm to him, Dr Burchess said (crucially): “I think he knows that”. When Mr Allen asked, “and thus he should take responsibility for it?”, Dr Burchess replied “Yes”. I argue that this last question was one of the most significant questions of the hearing as the distinction between Dr Ince’s medical opinion and Dr Burchess’ medical opinion in this final point on James’ internet use was unequivocal; the contrast in their medical testimony was indisputable. 

The Judgment

I wouldn’t describe myself as particularly surprised by the judgment.. I had expected that James would be judged to lack capacity given the strength of Dr Ince’s testimony, most specifically the weight Dr Ince placed on James’ AEA as a manifestation of his autism. 

To be honest, my initial reaction to reading the judgment was to appreciate the skill of Mr Justice Keehan, who had communicated a complex case in such a succinct and accessible way. Upon reading it, I was struck with a sudden understanding of many of the finer points in the hearing which I had been unable to appreciate during the trial. Moreover, being able to read about the details of James’ background and about what had taken place in previous hearings, informed my understanding further.  During the hearing, I had felt there were significant gaps in my knowledge of events which made commenting on the case extremely demanding. I was not unused to this though as my background in history has meant that I have been routinely provided with evidence that I must assess without all of the relevant facts. It is in the nature of historians to provide commentary where there are gaps and discrepancies. 

Furthermore, I found it particularly interesting in Mr Justice Keehan’s analysis that he stated, “I also prefer and accept the evidence of Dr Ince that [James] does not have capacity in relation to contact with those people he meets online”.  However, he did not provide an obvious basis for this preference. Both doctors had offered contrasting opinions on James’ use of the internet – thus it was not clear to me what factor had determined Mr Justice Keehan’s decision to agree with Dr Ince. I would be intrigued to understand the reasoning behind this decision, as from reading the judgment this was not clear to me.

The judgment provided me with more concrete evidence of the case and exposed me to information which had been discussed prior to the hearing I attended. On this basis, does this mean that attending a hearing lacks value given that I can simply read the judgement at a later date? One might argue ‘yes’, strengthening this point by adding that a court may save time and energy by not admitting public observers.

However, I disagree with this point. Though the judgment provided me with more information, it did not provide me with the full picture. In fact, the added value of a hearing is arguably something which cannot be captured in a judgment: the rawness of emotion during witness examinations. This rawness is crucial because, what may seem potentially black and white on the pages of a judgment, in fact might be considered less obvious and less certain in the actual hearing. Judgments do not cover the pauses as expert witnesses struggle to answer a particular question; they often do not cite a ‘maybe’ given by a doctor who seems unsure as to an answer and they do not include the repetitions of questions asked by barristers to probe a witness so that they may reach a desired outcome. It is only from watching and observing what happens in court, that one can fully appreciate the art of advocacy, the nature of the information provided to a judge in oral testimony and the difficulty in reaching a judgment.

Reflections

The learning curve in observing this virtual hearing was incredibly steep. As stated, the beginning was difficult and, frankly, the case was tiring to follow given the wealth of information. However, this feeling of being overwhelmed subsided during the course of the day. This is due, largely, to the provisions put in place by the court: yes, the pace was fast, but efforts were made by both Mr Justice Keehan and counsel to ensure it was possible to understand the proceedings. For example, without the introductory summary of the case, I would have struggled to understand the rest of the day.

Although my feeling of being overwhelmed decreased, my feelings of intrusiveness in virtual court did not. Even at the end of the hearing, I still felt as if I was peering into someone’s most intimate moment. There is an irony in this as the subject of intrusiveness was also a subject matter prevalent in court that day. I refer to Mr McKendrick’s argument in his final submission that the Local Authority and the court were potentially intruding on James’ privacy. It was the discretion of the court to determine whether James had the capacity to engage in AEA and with others online: however, this determination, though necessary, is a serious infringement on his life. It is easy to forget when watching from home that the decisions made in court could result in a serious intrusion into a person’s privacy. It is also so easy when writing pieces like this to become wrapped up in the technicalities of the medical testimony and forget that it is James’ liberty at stake. 

With this in mind, although it may feel intrusive to observe, in fact there is a profound importance to the public being able to watch hearings, such as James’.  What kind of justice would the Court of Protection provide if decisions could be made to restrict and impede a person’s liberty, in relation to their right to have sex in the way that they choose, without any public right to observe the process whereby that decision is made? 

It seems that intrusiveness on my part, and the part of the public, is essential to ensure that the intrusion of the state is justified. Decisions which have crucial public policy implications, in James’ case for his deprivation of liberty, must be witnessed by public observers, instead of reviewed at a later date upon reading a refined version of proceedings in the judgment. 

I found this experience incredibly eye-opening and extremely informative.  Most importantly, it has motivated me to pursue an area of law which is, above all, very human. 

Sarah Daniel is an aspiring barrister with an undergraduate degree in History and a postgraduate degree in International Development. Currently she is completing her Graduate Diploma in Law at City, University of London. Her email address is Sarah.Daniel@city.ac.uk 

Photo by engin akyurt on Unsplash

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