By Celia Kitzinger, 13th July 2022
The protected party at the centre of this case (COP 13627568 before DJ Glassbrook sitting in Northampton on 8th July 2022[i]) was described as “ a 19-year-old lady with diagnoses including Mild Learning Disability. Mixed Disorders of Conduct and Emotion, and Reactive Attachment Disorder of childhood”.
Introducing the hearing for the benefit of the observer, the judge said that there were two issues before the court today: the funding arrangements for the protected party’s (P’s) accommodation, and P’s capacity to engage in sexual relations.
The latter issue was clearly something he was concerned about:
“Some time ago, I believe at the beginning of the year, I made declarations about capacity. Having reviewed that, I expressed reservations about the soundness of some of those declaration in April. I expressed the same reservations in May. There was to be a TZ-style care plan before the court today. It has not come into being. Those declarations will be reviewed today.”
There were two barristers in court. For the local authority, Catherine Rowlands of Cornerstone Barristers and Benjamin Harrison (covering for Jake Rylatt) of Serjeants’ Inn Chambers for P, via her litigation friend, the Official Solicitor,
The Head of Operations of the Registered Provider of P’s placement was also in court because the judge had issued a witness summons. Also in connection with the placement, the local authority Revenues and Benefits Manager was present.
Funding arrangements for the placement
The parties had previously agreed in principle (at a hearing in December 2021) that it was in P’s best interests to move to a particular placement, but the funding arrangements have still not been resolved.
This is despite the fact that P has already moved to the new placement because her previous placement experienced issues with the heating and water supply: it was necessary to turn off the heating and hot water completely and remove the kitchen sub-floor. She simply couldn’t live there while that was going on.
So, she’s living in the new placement with various concerns (from the judge) about the basis on which she occupies it, and about “due diligence” issues.
The Head of Operations for the housing provider had been summoned (i.e. ordered) to appear in court – an unusual move for the Court of Protection. The judge said: “It’s is not something we do regularly, but if we don’t get to the bottom of funding arrangements it could all fall down”. He explained to that it had proved impossible to get the necessary information any other way and this had “been going on for many months”. The judge was concerned that P should not have to move again from a placement that “falls down” – “that’s why the sustainability of the package is so important”, and it had “proved necessary”, he said, to summons her as a witness to get the information needed.
I don’t know enough about housing law or funding arrangements for placements to understand the significance of the exchanges between the judge, counsel and the Head of Operations for the placement.
A key problem seems to have been a delay in the provision of “statutory compliance certificates” (the judge confirmed that meant “fire safety, gas, electrical, that sort of thing?”) which had been awaited for many months. Once they’re received, they need to be reviewed by the Board and there may then need to be remedial work, so it sounded as though this could take many months more.
“But this year, not next?” asked the judge. “Yes”, said the Head of Operations: “Any later would raise significant questions as to the ability of the freeholder to maintain a compliant asset”.
The property is one of 17 in a wider portfolio under consideration by this provider. Counsel for P checked that it would be possible to pull out this particular property as soon as the statutory compliance certificates are in hand and take it to the Board separately and try to get it approved then, rather than present all 17 properties to the Board “en bloc”. The Head of Operations confirmed that this was “very much an option we’d consider” and that under the circumstances it could be done between scheduled Board meetings, to minimise further delay.
A concern that the provider had received a regulatory notice was also discussed.
I’m not sure how (or whether) the evidence of the Head of Operations influenced the court’s decision-making.
After the Head of Operations left the platform, the judge returned swiftly to the matter of P’s capacity to engage in sex, and the missing TZ-style care plan (and nobody returned to the housing issue at the end of the hearing).
Capacity to engage in sex
The judge then announced that he understood there had been “a delay with the TZ-style care plan” which “should be here by now” (as was accepted by counsel).
A “TZ-style care plan” is a reference to a case heard by Mr Justice Baker (A Local Authority v TZ (no. 2)  EWHC 973 (COP). In that case, Baker J, finding that TZ had capacity for sex but not for contact, said there needed to be a care plan that aimed “to identify the support to be provided to assist [TZ] in developing a sexual relationship without exposing him to a risk of harm” (§56(6)). The judge emphasised that “[w]hen delivering a plan to address TZ’s lack of capacity to decide whether someone with whom he may wish to have sexual relations is safe, the principal focus should be on educating and empowering him to make these decisions. Any provisions in the plan directed at protecting him and restricting his contact should be seen as interim measures until the time when he acquires skills to make such decisions for himself”. The judge wanted to see, in practical terms, the support TZ would receive if he were to meet a potential sexual partner, and a plan that clarified circumstances under which care workers might intervene to protect TZ and how they would do this.
Returning to the current case, according to the local authority’s position statement:
“The Court has asked the applicant to prepare a “TZ-style plan”, in other words a care plan which makes provision for sexual relations in accordance with the guidance given in A Local Authority v TZ (No2)  EWCOP 973). A TZ style care plan is in draft form, but is still awaiting comments from the care providers. The applicant seeks a short extension for it to be filed and served.”
The judge then expressed his “grave concerns”:
“As things stand, there is a peculiar declaration that P does not have capacity for ordinary social contact, but does have capacity for sexual relations. On reviewing that, I was unhappy with the situation, and said so in April and May. I don’t see how it can be right that an individual lacks capacity to decide to sit down in a café and have a brew, but does have capacity to have sex. It’s completely illogical. I was persuaded in April not to upset those declarations, pending the document that should have been here today. So certainly, I had anticipated that by the time we got here, I would have had the opportunity to review them. I have grave concerns about the (he pauses and sighs) common-sense of the declarations that have been made, and consequently of the validity of them.”
Counsel for the local authority said “it may be of some comfort that you are not the first judge to express concerns about this issue”, which is “unusual but not unique”. She outlined a version of how the care plan would potentially work – such that P’s contact with others (for which she lacks capacity) would be circumscribed to keep her safe, so that she would not be in a position to have sex with a dangerous stranger. The TZ-style care plan would, she said, “be with you for the 3rd August hearing. We’d seen this hearing as focussing on finance and rent”.
“But the declaration doesn’t set things out as you just have”, responded the judge. “You could interpret the declaration that if there is somebody who is new to P, she does not have capacity to go and sit with him or her in a café and have a brew, but can decide that a one-night stand is on. […]. In April, the Order made it plain I was unhappy with the situation. Back in May, the recordings are more extensive because I was again unhappy with the situation. And of course, if this is a contested issue- and even if the parties agree, I don’t! – and if there’s a contest between the parties and what I have said, I have a strong suspicion that this will need reallocating – possibly the whole case, but certainly that discrete issue. This issue may not be one for a Tier 1 judge. Today’s Order should reflect this.” (Judge)
Some discussion of the need for reallocating the case to a higher tier judge followed – and also some discussion of the importance and relevance of a TZ-style care plan in a context in which “the Court of Protection can make best interests decisions for P about contact if she doesn’t have capacity, but it can’t make best interests decisions about engaging in sex once a person is found to lack capacity. It’s over. You can’t do it. So, the plan is a way of squaring the circle” (Benjamin Harrison, Counsel for P via the Official Solicitor)
The judge clearly remained troubled.
“It’s important that we deal with this in August. The standard wording on declarations (sighs) are possibly, or the ones used in this case (pause)…. It may be that it isn’t full enough. I can appreciate that there is an argument that if one has an existing contact, an existing safe contact, then there may be occasions when a protected party might have capacity for that social contact to become a sexual contact. But the wording completely ignores the possibility of P happening upon a stranger that she finds attractive, and deciding that there will be sexual contact, even though she’s incapable of deciding to have a cup of tea with them.”
“That”, said counsel for P, “is why the TZ-style care plan is so important”.
“With that care plan, I hope Mr Rylatt may be able to persuade me there’s some sense in it”, said the judge. “It is with some considerable disappointment that I note that we don’t have the care plan. But there we go. I’ve said my piece.”
There was a brief discussion of a few other matters – a capacity assessment of P’s social media use, my request for the parties’ position statements (many thanks to both counsel for sending these over to me), and the judge’s request for the bundle to sent in a timely manner for the next hearing.
On the basis of today’s hearing, I anticipate that the hearing on 3rd August will be of interest to those concerned with issues relating to capacity for sex and TZ-style care plans – especially in view of the decision in the JB case in the Supreme Court.
Celia Kitzinger is co-director (with Gill Loomes-Quinn) of the Open Justice Court of Protection Project. She tweets @KitzingerCelia
[i] As is very common for remote hearings, the list said that this hearing was “Private”. As is also very common for remote hearings heard “in private”, I was admitted without question. I’m grateful to the court staff and to the judge for successfully admitting me to this hearing which I asked to observe only because it was listed to start at 9.30am (and in the absence of any information as to what the hearing would be about). In my experience, despite everyone’s commitment to open justice, it often fails for hearings listed to start before 10am, because staff don’t have time to read their emails and get the request to the judge. My request was sent at 18.20 the day before this hearing. I re-sent it at 09.12 the morning of the hearing saying that I’d not had a response and the hearing was due to begin in just over 15 minutes. I was told the hearing would start slightly late and received the link at 09.15, and which point I tried to join the platform. At 09.36, I emailed court staff again worrying that I was not in the hearing and was continuing to receive the message “When the meeting starts, we’ll let people know you’re waiting”. At 10.42 I received a response explaining that the judge was running late and the hearing actually began a few minutes later. (It turned out he’d needed more time to read the bundle).