By Ruby Reed-Berendt, 24 October 2022
Having contributed to a previous blog on capacity to engage in sexual relations and the Supreme Court decision in A Local Authority v JB (Capacity to engage in sex: Nine responses to the Supreme Court Judgment in Re. JB), I was keen to observe a hearing on this issue to see the application of the law (and its direction of travel) since JB.
I got the opportunity to do so on 18th October 2022 when Celia Kitzinger alerted me to a case which was being heard via MS teams in the Royal Courts of Justice (COP 13627568) before Mrs Justice Lieven.
In line with normal practice in the Daily Cause List for the Royal Courts of Justice, there was no information as to what the hearing was about (unlike hearings listed in the county courts where case descriptors are increasingly available). However, Celia had observed and blogged about the case a few months earlier (“Grave concerns”) and recognised the case number in the RCJ lists.
At that hearing, the district judge (DJ Glassbrook) expressed “grave concerns” and said he was “unhappy” about the declaration he’d already made at an earlier hearing which (he said) could be interpreted as meaning 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”.
At that point there was no “TZ-style care plan” in place, and there was a subsequent hearing (observed but not blogged by Celia) on 3rd August 2022, which further explored the issues based on a draft TZ-style care plan, but left DJ Glassbrook still unhappy.
“To say that she has no capacity to meet a stranger for contact, to have a cup of tea, but has capacity to meet a stranger for sex, is something that makes me scratch my head. And if that’s the parties’ position still, there a very easy answer. I’m going to pass it on. Because I have a problem with that. If a High Court judge wants to make that decision, fine!” (DJ Glassbrook, 3rd August 2022, from Celia Kitzinger’s contemporaneous notes).
And so, this was the case now before High Court Judge, Lieven J.
This was a short hearing – about 45 minutes from start to finish.
At the outset, the judge noted that some observers were present, and asked counsel for the applicant Local Authority (Lee Parkill of Cornerstone Barristers) to summarise the issues for our benefit.
The case concerned a young woman (let’s call her Olivia) who spent time in a secure mental health unit before she turned 18 and now resides in a supported living placement with a three to one ratio of care (i.e. three carers providing care for one person).
We were reminded that at a previous hearing in December 2021, DJ Glassbrook made orders that Olivia lacks capacity to conduct the proceedings or to make decisions about her residence, care, social media and internet use, as well as to decide on contact with others. She also lacks capacity to enter into a tenancy agreement. However, she does have capacity to engage in sexual relations.
Olivia was not present at the hearing, but her best interests were represented by Jake Rylatt of Serjeants’ Inn Chambers (via the Official Solicitor). Her former foster-carer was also in court as second respondent, as too was a social worker (albeit not her ‘allocated’ social worker).
Capacity, contact and sexual relations
The judge first dealt with DJ Glassbrook’s apprehensions about the state of the law:
“DJ Glassbrook has been very concerned about this case and whether the current state of the law really protects [Olivia]. And I must say, I have some concerns about the current state of the law, but that’s as set down by the Supreme Court and that’s not for me to go against[i]”.
The judge then made reference to another case which concerned capacity to engage in sexual relations, Hull City Council v KF  EWCOP 33. She observed that, in that case, Mr Justice Poole had “found a clever way” to deal with a situation where there was an individual-specific concern. In the Hull City Council case, KF was considered to have capacity to engage in sexual relations in a general sense, i.e. she understood the act of sex, the requirements for mutual consent, the potential risks of pregnancy and infection, and the need to use protection. However, concerns arose about her capacity to have sexual relations with her partner, who had pleaded guilty to assaulting her (see Determining capacity for sex with her abuser). Poole J held that KF lacked capacity to engage in sexual relations with this particular person, having examined the risks in relation to him specifically, a risk which Lieven J considered to be “overwhelmingly obvious” in KF’s case.
Returning to the current case, Lieven J noted that Poole J’s approach gave a “pragmatic way around the rather complicated way the law has developed in this field”, but that it wasn’t currently a relevant consideration for this case, given that neither party had identified any individual specific concerns in this area, although “there might be one in the future”.
The judge concluded these remarks by saying that “in light of the case law from the higher courts, I don’t think we have any choice but to go ahead with the TZ-style care plan solution”. She added that if Olivia were to get into a situation where KF-type concerns arose, a different order and care plan might be needed, but “that isn’t where we are at the moment”. So “really all I can or should do is look at that care plan and look at how it protects [Olivia] going forward”.
The care plan
A TZ-style care plan is one that, in essence, aims to support the individual to develop relationships, including sexual ones, in a way that keeps them safe. The judge asked counsel to go through its key aspects so she could understand “where you are going with it”, highlighting at the outset “it would be useful to understand a little bit more about [Olivia]’s sexuality and her position in relation to wishing to have sexual relations.” She emphasised “I haven’t got a particularly good sense of [Olivia] at the moment. I appreciate she has serious mental health issues, but I haven’t got much of a sense about her relationship status, to use the youths’ terminology.”
Mr Parkill summarised that the care plan’s purpose was to manage the conclusion of DJ Glassbrook’s order, i.e., that Olivia lacks capacity to decide who to have contact with, but has capacity to engage in sexual relations. The aim, he stated, is to support her to have contact with individuals, both in person and online, and to ascertain how care staff will support her in making choices. The judge’s questioning of counsel for the local authority revealed her focus on the specific risks for Olivia and whether there was evidence of this:
Lieven J: Does [Olivia] have a history in engaging in risky sexual behaviours?
Mr Parkill: There have been occasions of [Olivia] sharing photographs, but there has not been a presenting problem of her engaging in risky behaviour.
Lieven J: So she may have problems in terms of safe use of the internet?
Mr Parkill: Yes, that was the position of the expert, Dr Ince, last year and the social worker’s more recent assessment is that [Olivia]’s understanding has improved, but not to the point of capacity. The expert holds the view in time she will have capacity but she’s not there yet. There Is no proposal to impose restrictions on her use of the social media. The view taken is that to do so would be a backward step and would cause a degree of friction between her and carers, which would be very unhelpful. The amount of support she has provides the safety net to her to help her manage the risk.
Lieven J: And in the current care plan – I’m not criticising – you are not proposing to restrict her internet access or monitor access? You’re trying to get her to tell the care staff about what she is doing, rather than have checks on her internet use?
Mr Parkill: Yes. The aim is to develop the relationship with her carers – rather than impose restrictions which, naturally and understandably, she would react against. The plan then provides guidance about how to support her when she meets somebody in real life and where staff would be – would they be at a distance or with her… What needs to be worked out is how staff will make decisions about individuals if there are concerns, and how decisions will be made about restricting contact with an individual.
Lieven J: And the fact that [Olivia] does not have capacity to decide who to have contact with stems from the fact she is vulnerable and at risk of exploitation? Is this based on historic behaviour?
Mr Parkill: I think it is based on her presenting a lack of appreciation of risks posed by other people.
Lieven J: Not least because she has had wrap-around care throughout her childhood and young adulthood. This sounds great in theory [laughs], but young women like [Olivia] are open to exploitation. It’s well known, and I’m afraid a fair few have passed through my court.
There was discussion about the types of activities which Olivia would be supported to undertake, both in person and online, to build relationships. The judge asked about contraceptive advice and was told that this, too, would be part of the plan.
Mr Parkill mentioned use of online websites and in-person LGBT groups that she would be supported to attend. At this point the judge interrupted again: “This is what slightly confused me, and was why I hinted at the beginning that I wanted to understand her sexuality. Is that in order to be diversity-aware or something to do with Olivia herself?” Mr Parkill then clarified his understanding that it is because of Olivia’s views, but “I hesitate to paraphrase, as her intentions in respect of sexual partners are not entirely clear”. (Mr Rylatt later clarified that it was based on what Olivia had disclosed to her family – “she identifies as bisexual”.)
Mr Parkill then went on to talk about online dating further: “Another strand of activity will be looking at websites she can access and giving her guidance about accessing those. We don’t want the plan to effectively operate as curtailing [Olivia]’s choice of sexual partner unduly, so we need to be cautious about restricting types of websites she can access.” To this to the judge responded: “We also don’t want to be in the situation where care workers inadvertently support [Olivia] into a situation where she’s being exploited. The whole thing is fraught with difficulty“.
The intention was to prepare an Easy Read version of the care plan, once it was agreed, so that Olivia herself can understand it and appreciate what support (and what restrictions) she is subject to.
Further discussion of the care plan focused on what would happen if Olivia were to engage with someone who poses a risk to her, and what intervention would be required if this happened. The range of responses available (including police intervention as a last resort) was raised in detail by Mr Rylatt. The parties seemed to agree that if this were to happen, some intervention from her carers could be given: but if the local authority wished to restrict contact with an individual, the matter would need to return to court. This left open the option of a ‘KF approach’ (as counsel for the Official Solicitor put it), if one was needed (Hull City Council v KF  EWCOP 33). It was also agreed that the care plan should be more explicit on this matter. The judge recommended, in addition, that contraceptive advice should form part of the care plan, which the Official Solicitor supported.
On this basis, after checking that the care worker and Olivia’s foster mother had nothing to add, Lieven J agreed to endorse the care plan and make the orders.
The judge then turned to discuss the matter of residence, which appeared to centre on the production of a tenancy agreement by a third organisation which was not Olivia’s care provider but was to act as the landlord. This was to be signed by the local authority on Olivia’s behalf, because Olivia lacks the capacity to enter into a tenancy agreement. It was not clear why there had been a delay in this organisation producing the tenancy agreement and they were not responding to requests for information.
The judge was clearly confused about the role of this third party, and had a discussion with Mr Parkill. (There had also been attempt at the earlier hearings before the District Judge to sort out this problem.)
Lieven J: I don’t quite get this. Is the city council in a contract with this organisation to provide care at this property?
Mr Parkill: The care provider is a different organisation.
Lieven J: So has the city council entered into a contact with this organisation to do something for [Olivia]?
Mr Parkill: The contract is between the authority and the care providers who have bought the freehold. The care providers then contract to the organisation, who is the social landlord.
Lieven J: Perhaps none of this matters, but I have become curious. Why has this organisation been brought in? Are they a registered social landlord?
At this point the solicitor for the Local Authority answered:
Solicitor: Yes they are the social landlord, and there would be a conflict if they were both care provider and social landlord.
Lieven J: I suspect that is a cover for reducing the housing benefit. I can’t see why that would be a conflict.
She then asked if there was any reason she should not simply make an order for the organisation to produce the tenancy agreement. Mr Rylatt expressed a preference for a further hearing, where the organisation could be asked to appear before the Court and give evidence on the tenancy. This was not something the judge felt was necessary, and she expressed concern about the potential for it to waste time and money: “Why are we having another hearing? We have far too many hearings in the Court of Protection – far too many ineffective hearings. I am not having another hearing just so this person can produce a tenancy”.
Mr Rylatt then suggested that another hearing was needed anyway to scrutinize and approve the care plan. The judge responded “I am not here to scrutinise care plans when everyone’s agreed, and there’s no point of law. I won’t fix another hearing. If the Official Solicitor thinks there should be one, then I will give her liberty to apply. Otherwise you can agree it and send to me“. To the suggestion that a hearing could be listed and then vacated, she replied:
“Court of Protection cases are notorious for blocking up our diaries and being pulled at the last minute, and that is time which could be spent getting another child or another P through the court system. It’s also a way for money to be wasted, as lawyers are still instructed but the case doesn’t then happen. I would rather do it the other way round. So if I can persuade you to go away and sort it out and come back to court if you need to. But I would be flabbergasted if, once you’d had a proper discussion, agreement wasn’t reached. How am I going to decide what is a safe website or not? How am I going to decide on the facts – or if the LA is being too protective or whether, to be frank with you, the Official Solicitor is being too cavalier and taking too many risks? That really has got to be one for the professionals to discuss. A clear timetable I can agree to, so this doesn’t get pushed into the long grass, but not another hearing.”
Mr Rylatt asked for permission to “restore the matter to court if it can’t be agreed” (granted) and confirmed that if agreement were reached, the care plan would be submitted to court. The judge concluded that this was a sensible way forward and ordered that the social landlord had 14 days to produce the tenancy agreement[ii].
The judge’s discussion at the start of the hearing of the state of the law in this area demonstrated a level of disquiet about some of the contradictions which arise from the interaction between capacity for contact and capacity for sexual relations. Lieven J chose her words carefully (at one point apparently self-censoring with the comment, “I’m not going to say that because there are members of the public here”) but was clear that her hands are tied by the decisions of the higher courts and nothing could be done but look at the care plan. As she stated “I am not going to do something clever or say the Supreme Court was wrong or try to get around it“. She also identified that Poole J’s decision was a form of ‘work around’ for what was a difficult case and she was supportive of using a personalised approach to protect individuals from “exploitation” where risks became apparent.
To my mind, the need for judges to adopt creative or pragmatic approaches to reach decisions they feel comfortable with indicates that the state of the law is less than satisfactory. Based on this case and the KF case, it sounds as though this is the direction that decisions about capacity to engage in sexual relations may now be headed: a finding of capacity on a general basis, but with the opportunity for reconsideration where specific individual risks arise. An approach like this does allow for a level of personalisation for particular partners and concerns about Olivia being exploited. But it does also seem intrusive when it comes to Olivia’s ability to develop relationships, which, echoing my concern about the JB case, may now be dictated by her carers’ perception of risk – in this instance, what kind of partners might be risky ones. The opportunity to come back to court and scrutinise capacity again if such a relationship were to arise also means that Olivia’s capacity to have sex faces being questioned repeatedly: this was one of the reasons that, prior to JB, capacity to consent to sex was assessed on a general basis, as Baker J held in A Local Authority v TZ  EWCOP 2322:
“To require the issue of capacity to be considered in respect of every person with whom TZ contemplated sexual relations would not only be impracticable but would also constitute a great intrusion into his private life” [§ 23]
Although we are not quite in this position of assessing Olivia’s capacity in relation to every potential partner, it seems to me that the approach taken in this case leaves open the option of examining her capacity on an ongoing basis, something that would not have been possible without JB and Poole J’s interpretation of it in the Hull City Council case.
It was also interesting to see Lieven J take a clear position on what is good use of the court’s time and her approach of encouraging the parties, in the strongest possible way, to work through the issues and come to an agreement together. In a stretched public funding environment, such considerations are important, but it’s also worth considering whether this does offer sufficient safeguards for Olivia if no further check is taking place on the agreements made between the Official Solicitor and the Local Authority.
Whether the case will come back to court or not remains to be seen.
Ruby Reed-Berendt is a PhD Candidate and Research Associate at Edinburgh Law School. Her research focuses on mental health and mental capacity law from a feminist perspective. She has previously blogged for the Open Justice Court of Protection Project (see: “Cancer treatment in the face of unknowns and expert disagreement“). You can check out her academic website to learn more about her work, and you can follow her tweets @rubyreedberendt
[i] All quotations are taken from contemporaneous notes made (separately) by Ruby Reed-Berendt and Celia Kitzinger, and cross-checked for accuracy after the hearing. While the quotations are as accurate as we can make them, it’s unlikely that they are 100% verbatim.
[ii] Editorial Note (by Celia Kitzinger): In view of our concerns about ‘closed hearings’, as discussed in a recent blog post, it is interesting to note that in this hearing Lieven J made a ‘without notice’ (or ‘ex parte’) order against an organisation not in court and not represented. She said so explicitly: “We have to give [the organisation] liberty to apply for discharge as it’s made ex parte”. Hearings held ‘without notice’ to people/organisations who are subsequently effected by the orders and directions of the court are one (but only one) of the features I have identified of ‘closed’ hearings. I realise now that I have seen other such orders made in other hearings, but without appreciating their significance at the time. I suspect that such orders are not as ‘rare’ as has been suggested.