Reflections from a social worker on a case about capacity for sex: Hull City Council v KF

By Sara Linnane, 15th August 2022

I qualified as a social worker in July 2020, at the height of the pandemic when the world was coming to a standstill. I have worked in Social Care – both Children’s and Adult’s for 15 years, choosing to become a social worker in Adult’s Social Care because of my passion for promoting human rights and equality. As a social worker I am acutely aware of and endeavour to promote the autonomy of the people I support, even when this goes against my own values and beliefs. 

As a social worker my position is unique – advocating for people to live their life the way they choose but also safeguarding people at risk of abuse or being deprived of their liberty.  At the heart of Social Work practice is the Mental Capacity Act 2005 – a legal framework for practitioners to work lawfully and ethically with people, embracing person-centred care, valuing diversity, empowerment and respecting the autonomy of people by maximising their capacity to make decisions. For me the Mental Capacity Act 2005 is about promoting a person’s human rights and dignity, therefore a key part of my practice is to critically reflect on my work to  avoid the ‘protection imperative’. 

On 26th July 2022, I watched my first Court of Protection hearing.  The judgment has since been published: Hull City Council v KF [2022] EWCOP 33.

It was the final hearing in the case of “KF”, a 34-year-old woman diagnosed with the rare disease of  agenesis of the corpus callosum, resulting in her having a learning disability which, according to an independent expert, impacts her capacity to make some decisions.

She had been assessed by Dr Mynors-Wallis, Consultant Psychiatrist, who found that she lacked the capacity to manage her property and affairs, and to make decisions about her residence, care and contact with others. However, he initially concluded that she did have capacity to engage in sexual relations. 

The issue before the court was that KF was pleading to have unsupervised contact with the man who had abused her through means of coercive control, financial abuse and sexual assault. The situation was further complicated as KF has recently been diagnosed with triple negative breast cancer which has spread to her liver, lungs and spine. KF is currently receiving treatment for this diagnosis. 

At the hearing on July 13th 2022, Celia Kitzinger (in her blog “Determining capacity for sex with her abuser”), reports that Joseph O’Brien QC (the barrister acting for KF via her litigation friend, the Official Solicitor) argued that the person-specific characteristics of a sexual partner could be relevant information when determining capacity around sexual relations – referencing the judgement in the case  of Re JB at the Supreme Court.  Joseph O’Brien stressed the concerns of the local authority and the significant risk of harm KF could face if allowed unsupervised contact with her abuser – contact which KF had been open and honest about, saying she’d hope it would lead to sex. 

It is important to say at this point that her abuser (KW) was due in Court on July 29th (so three days after the hearing I watched)  for sentencing.  He had  pleaded guilty to the sexual assault and it was likely he would be facing a custodial sentence. KF’s cancer is terminal, she is likely to pass away by the time KW is released from prison, therefore the urgency and sensitivity of the decision before the judge (Mr Justice Poole) was obvious. 

At that hearing, Mr Justice Poole authorised the parties to ask Dr Mynors-Wallis, the Consultant Psychiatrist who had previously assessed KF, some additional questions about KF’s capacity to engage in sex with KW in particular, and to rethink the question of KF’s capacity to engage in sexual relations due to the specific facts of this case. The next hearing was set for July 26th 2022 at 10:30am. 

When Celia Kitzinger asked if I would be available to observe the hearing on July 26th 2022, I jumped at the opportunity for two reasons – to experience Court (virtually) for the first time and for my professional learning and development. As a social worker I am aware that I might need to attend court as part of my professional duties.

Your first time observing a court hearing can be initially overwhelming. As a professional I felt apprehensive, even more so when I received a copy of the Transparency Order (TO). I remember thinking – if I feel like this, how must KF feel?

Now, I could blog about many different aspects of the hearing as it is extremely interesting, diverse and complex, however I want to focus on three main aspects: KF, her social worker and Mr Justice Poole. These are my thoughts and reflections from observing the hearing.

1.  KF – the woman at the centre of the case

What we know about KF is that she is a 34-year-old woman, who has a learning disability and was recently diagnosed with terminal cancer. KF has had two children who were both removed from her care.  She’s been in an on/off relationship with KW over a long period of time, leaving Hull for her own protection at one time. It was reported in court that during this time away from Hull, KF was protected, safe and well. However, KW resumed contact with KF and, ultimately, she returned to Hull and to live with KW. KW’s abuse of KF is described as coercive and controlling, abusing her finances for his own needs, dominating her decision making and sexually abusing and assaulting her.

As a social worker, my current training around coercive control is limited and mainly delivered through safeguarding and domestic abuse training. My practice experience of working with people under the coercive control of another is also limited. Observing this hearing has highlighted a learning and development need which I will explore further. 

My thoughts – how do you even begin to put yourself in KF’s shoes, knowing very little about her life this far, to understand the reason for her dying wish to be to spend a night, unsupervised, with her abuser?  What is the hold that he has on her? And how as professionals do you support KF impartially, without judgement to promote  her right to autonomy?

One thing I admire about KF is her openness and honesty about her wishes and feelings to have unsupervised overnight contact with KW. KF, from what we know worked with professionals throughout this hearing – seemingly taking on board concerns shared about KW’s flat, meeting with Dr Mynors-Wallis to complete capacity assessments which discussed very personal, sensitive and private matters. KF agreed to planned supervised contact with KW, agreed to the social worker checking KW’s flat and appeared to understand that professionals supporting her want to make sure she is safe from further harm, infection and illness. 

Can you imagine this level of invasion on your own personal life? The feeling of knowing other people are in control over a decision you want to make. Doing everything that is asked of you by different professionals in the hope you can achieve one of your dying wishes?

On July 25th  2022 (the day before the hearing), KF had met with her Litigation Friend. During this meeting it became apparent to KF that the Judge might deny her wish of unsupervised overnight contact with KW. Reacting to this KF stated “I’m sick of this. You can tell the judge that too. It’s my decision. I’m being treated like a child”. KF couldn’t understand why her capacity was being questioned, stating “I can make my own decisions. I want my freedom. I can make a decision about sex”. 

I perceived these statements as KF’s way of saying – I’ve done everything you have asked of me and more, now let me have my wish of unsupervised overnight contact with KW.  

2. KF’s Social Worker

During the Court hearing my focus often went to the social worker.  I wondered how she was feeling and what she was thinking? How much is this case impacting her emotional wellbeing? I’m not sure how long she has been working with KF, but from what is known it can be assumed that KF has had long term input from both Children’s and Adult Social Care.

How does a professional stay impartial, promoting the rights of service users, even when it goes against our thoughts and morals, no matter how strongly challenging it is. How do we differentiate between promoting the human rights of a person and trying to achieve what we may perceive to be the best outcome?  When I was thinking about the social worker, I couldn’t imagine the weight of emotions she must have felt – I often find myself dissecting my own practice to ensure I am keeping the person, their wishes and rights at the centre. This is often a difficult and complex task when you consider the legal framework involved. As social workers, on one hand we have a duty to respect and promote a person’s rights to autonomy and self-determination, on the other hand we have a duty to safeguard vulnerable people, such as KF. 

Balancing these two duties, in addition to looking after your own emotional wellbeing can be arduous. It requires a significant level of knowledge, skill and human compassion. It also requires a collaborative approach as decision such as this one faced with KF are complex – ultimately resulting in the social worker asking the court to make a final decision. 

One thing that did stand out to me during this hearing, was the social workers respect towards KF’s wishes and feelings. The social worker has continued to support KF’s wish of contact with KW – planned supervised contact. Contingency plans had also been considered and implemented, with the local authority agreeing to cover the cost of a hotel room and for 2 carers to be on call should KF need assistance. All reasonable steps taken to work openly with KF to achieve her wishes and promote her safety. 

3.  Mr Justice Poole

Mr Justice Poole gave a summary of his decision on July 25th 2022, as KF was present (virtually) and being supported by carers. KF could not be seen or heard: this was to protect her identity. 

When outlining the decisions to be made, Mr Justice Poole used clear language, keeping explanations concise and to the point – ensuring KF was able to understand the reasons for his judgement. I don’t know how KF reacted to the decision, or even if she fully understood the reasons behind Mr Justice Poole’s decision. My hope is that the carers supporting her and her social worker will continue to support and explain the decision. 

As I listen to Mr Justice Poole give his judgement, I could sense the weight of the decision he had made and how sensitively he had approached the case. I imagined myself with that responsibility and tried to understand how he would have felt – did he face his own ethical dilemmas when balancing the facts of the case and determining what is in KF’s best interest.  

In his judgement, Mr Justice Poole concluded that KF lacks capacity to make a decision to engage in sexual relations with KW (which was also the conclusion of the independent expert, Dr Mynors-Wallis, in the Addendum to his original report) and that it is not in her best interests to have unsupervised overnight contact. In weighing up all the evidence and circumstances surrounding the case, Mr Justice Poole did agree that it was in KF’s best interests to continue to have supervised contact with KW in public places. Furthermore, he ruled that whilst he is aware of the significant harm caused to KF by KW, he did not have concerns for KF’s safety should they wish to kiss and cuddle – being mindful this could be their last contact together. What’s more, Mr Justice Poole reminded himself that a person can make unwise decisions and have capacity to make them, highlighting the importance of not making a decision based on emotions and an impulse reaction to protect KF (the so-called “protection imperative”, explained by Ben Troke in this video) remaining objective and considering all possible options to support KF’s wishes. 

My final thoughts

The case of KF is challenging, complex and emotive – a young woman diagnosed with terminal cancer who wants to spend one last night with her abuser, a man who seriously sexually assaulted her and dominated their relationship through coercive and controlling means.

KF is safeguarded, in essence, by taking her control away when she was judged not to have capacity to make decisions about contact with her abuser herself. It was deemed not to be in her best interests due to the significant level of risk associated with KW and the potential he may cause harm to her. 

How does the social worker work through any potential aftermath, e.g. a change in the relationship dynamic between herself and KF, how KF would now engage with support, how KF would react to and deal with the judgement post-case. A key part of effective social work practice is being able to form open and trusting relationships with service users – relationship-based practice can facilitate more effective communication, allowing for transparency and a person-centred approach. Conflict often arises when outcomes don’t match a service users wish, creating a strain on the relationship. One way to rebuild this relationship is to keep the service user informed, ensuring they are aware of decisions being made and the reasons for them. This ensures they are not excluded from discussions regarding their rights/wellbeing and will hopefully encourage further cooperation with services overtime.

Cases such as this need to be publicised and discussed more frequently so that all aspects of Social Work with adults are promoted and understood. This judgment showcases the complexities of working in a field that deals so closely with people’s human rights. It is a judgment that can be learnt from and hopefully support a wider understanding of the nature of Social Work practice. 

Sara Linnane is a social worker for a Local Authority, working in a generic, adult community team. Prior to completing her BA Honours in Social Work, Sara worked within Children’s and Adult’s Social Care for 15 years. Sara is keen to continue developing her practice skills and knowledge, especially in regard to promoting and upholding the rights and autonomy of people she supports. She tweets @Curious_pearl

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