by Daniel Clark, 8th April 2024
In a recent published judgment, it was found that EE has capacity to make decisions about sex and contraception ([2024] EWCOP 5). Her decisions may possibly be unwise ones (she’s said she wants to have a baby) but as the judge put it “however strong is the impulse to protect, the follies of the capacitous are not the business of the Court of Protection” (§50). The judgment poses challenges on the ground for the people caring for EE since the court also found that she lacks capacity to decide on contact with others, including her former boyfriend.
The hearing I observed on Wednesday 13th March 2024 (COP 13961414) was a case management hearing in the aftermath of that judgment to explore its implementation in practice, i.e. revisions to her care plan, including how she would be supported to make contact with people, and what staff would do if she decided that she wanted to have sex with someone. Not much progress has been made, so it was a short hearing.
I’ll report on the hearing in the third section below, but first I’ll say something about how to access published judgments, since that’s likely to be of use more generally to other people interested in the Court of Protection who may not have done this before, and then (second) I’ll summarise the published judgment, before describing (third) what happened in the hearing.
1. Accessing judgments
It is quite unusual for judgments in the Court of Protection to be published on an open access website, such as the National Archives (which is my preference for locating judgments) or BAILLI (which is useful for locating earlier judgments) Throughout the court system, one-in-five listed judgments are not published at all, though I suspect this number is much higher for Court of Protection judgments.
When we know something about a case before attending a hearing, this is usually because we’ve previously blogged about it or because somebody has previously observed and told us what that hearing was about.
However, we knew quite a lot about this case because – although we’d not previously observed it – a judgment had recently been published, and I was able to locate it.
When I saw the listing, I remembered that Mr Justice Poole was recently “on circuit” in Sheffield, and I had a feeling that I recognised the case number.
Having first used the search function on the Open Justice Court of Protection Project website (and found nothing, since we hadn’t blogged about it), I turned to the National Archives because I knew that a number of Poole J’s judgments had recently been published there. Unfortunately, the website does not have a function that allows searching for case numbers but I could narrow it down by setting a year limit of 2024, selecting Court of Protection judgments, and including the judge’s name. Below is a picture of my search.
I had to click into a few and, just as I was starting to think I was mistaken, I found what I was looking for. While it is not possible to search for case numbers, each published judgment does include the case numbers in the top right-hand corner. You can see it in this picture:
Although I’ve observed hearings where judgments have previously been published, I’ve not observed a hearing after the publication of a final judgment (at least, one that was also published and accessible to me). I thought (rightly as it turned out) that this would give me an opportunity to see how the work of the Court continues after a ‘final’ judgment.
2. The published judgment
The judgment was handed down on 8th February 2024, following a hearing on 29-30 January 2024. I will briefly summarise this judgment before turning to the hearing I observed, but you can read the full judgment here: https://caselaw.nationalarchives.gov.uk/ewcop/2024/5
EE is a 31-year-old woman who wants to have a baby. However, at issue was EE’s capacity to engage in sexual relations, to decide on contact with others, and make decisions about contraception.
Both parties agreed that EE lacks capacity to make decisions about contact with others. This is because of “her inability to use or weigh the risks that others pose to her […] recently she handed her smart phone to a stranger who had offered her money for it on the internet. She met him and he made off with her device without paying her for it. She had been unable to weigh the risks and benefits of this contact” (§29).
Both parties also agreed that EE has capacity to decide to engage in sexual relations. This is because to not do so “would exceed the practical limits to require EE to envisage the risks to her or her baby should she become pregnant following intercourse” (§26). In other words, there was certain information that EE did not weigh up but it would set too high a bar to demand that she must be able to weight it up before being assessed as having capacity.
The applicant local authority, Sheffield City Council, submitted that EE lacked capacity to “make decisions about whether to use contraception” whereas the Official Solicitor, EE’s litigation friend, submitted that she had capacity to make “decisions about contraception”.
When considering the issue of contraception, the judge was again clear that, “there are reasons to avoid setting the bar too high for capacity to make decisions about the use of contraception” (§43). The judge was not satisfied that pregnancy would bring too high a risk of physical or psychological harm to EE, and so this risk of hypothetical harm was not something she needed to be able to weigh up.
The judge concluded his judgment with the following. I think this is worth quoting in full because it serves as a helpful reminder to those who assess capacity on a daily basis.
“With respect to her [EE], although she has thought the matter through, many would think it unwise for her to try to conceive, but it is not for me to advise her, and it is certainly not the role of the Court of Protection to intervene in the autonomous decision-making of an adult who has capacity to make decisions about sex or the use of contraception, however unwise the court may consider the proposed decisions are. Many capacitous people make unwise decisions about sex and contraception, sometimes with awful consequences for themselves and others, but however strong is the impulse to protect, the follies of the capacitous are not the business of the Court of Protection” (§50, my emphasis).
3. The hearing on 13th March
On Wednesday 13th March 2024 at 9:30am, this case was back before Mr Justice Poole, who was sitting remotely ‘on circuit’ (via MS Teams) at Sheffield Designated Family Court. What was immediately clear was that there had been a change in the legal representatives. Pravin Fernando, of Serjeants’ Inn Chambers, now represented Sheffield City Council, and Hannah Bakshani, of St John’s Buildings, now represented EE (via her litigation friend, the Official Solicitor).
This type of change is unfortunately not unusual, and it makes judicial continuity (as in this case) all the more important.
Counsel for the Local Authority acknowledged that the matter had been listed “to consider the immediate steps in the aftermath of that judgment on the 8th of February”. There had been a number of incidents, including EE absconding from her current placement and the discovery that EE had an online bank account despite the fact that “the court has previously made declarations that EE lacks capacity to manage her finances”.
It also appeared that EE had been communicating with a man on the internet, who I will refer to as M. Counsel for EE explained that M “was the subject of a number of safeguarding concerns last year and, from memory, it was difficult to get to the bottom of who [M] was, how EE met [M], and what the relationship was”. Counsel for EE described it as “unfortunate he has now made a reappearance”, which struck me as somewhat of an understatement.
Of further concern was that, for some reason, a TZ care plan had not yet been drafted despite this being a month since the previous judgment was handed down. This was compounded by the fact that EE was being allocated a new social worker who was not yet fully familiar with EE.
As Celia Kitzinger explains in this blog, a TZ care plan refers to a case (A Local Authority v TZ) heard by Mr Justice Baker in 2014. Baker J had found that TZ, a 19-year-old man, had the capacity to engage in sexual relations but not for contact. There was therefore a need for a care plan to address how TZ could be assisted to form a sexual relationship without exposing him to harm.
Given that EE also has the capacity to engage in sexual relations but not for contact with others, it is quite clear why a care plan of this sort is required. To not do so could pose an undue interference in EE’s freedom. The judge made an Order that Sheffield City Council file a TZ care plan, and updated care and support plan, prior to the next hearing.
Finally, the judge raised the matter of whether this case strictly needed to be overseen by a Tier 3 (High Court) judge. The case was before Mr Justice Poole as a result of “the difficult issues about capacity” (in the words of the judge). Now that these issues were determined, could the case be reallocated to a Tier 2 (regional) judge? This would (at least in theory) make it easier to find a judge before whom the case could be listed.
While the parties agreed that a Tier 2 judge could oversee a TZ care plan, Counsel for the local authority stated (and Counsel for EE agreed) that “the intricacies of contact and social media issues” meant the case required the oversight of a Tier 3 judge. Mr Justice Poole agreed to keep the case allocated to him, particularly because he felt there would be benefit from some level of judicial continuity.
This case will return to court on Monday 10th June 2024, after the filing of further evidence.
Daniel Clark is a member of the core team of the Open Justice Court of Protection Project. He is a PhD student in the Department of Politics & International Relations at the University of Sheffield. His research considers Iris Marion Young’s claim that older people are an oppressed social group. It is funded by WRoCAH. He tweets @DanielClark132
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