Alex RKRe ZZ (Capacity) [2024] EWCOP 21 is an example of a relatively species of case, namely a successful appeal in relation to capacity. At first instance, HHJ Burrows had found that ZZ had capacity make decisions about residence, sexual relations and marriage. The local authority appealed his conclusions, the appeal being opposed by ZZ through his litigation friend the Official Solicitor.
As Theis J described him,
- ZZ is a 20 year old man with a diagnosis of mild learning disability (‘LD’), attention deficit hyperactivity disorder (‘ADHD’) and possible obsessive compulsive disorder (‘OCD’). He suffered sexual abuse as a child and has himself been convicted of sexual assault on a 5 year old family member, resulting in an Intensive Referral Order for 12 months and a Sexual Harm Prevention Order (‘SHPO’), which expires in October 2024. It is a condition of the SHPO that ZZ does not live or sleep in any premises where there is also a child under the age of 18 years unless approved by the local authority and does not have unsupervised contact with a child.
A particular concern was what was said to be a very high risk of committing harmful sexual acts towards others. ZZ was said to be at high risk of absconding from the placement he was in, repeatedly making it clear that he wished to live with his girlfriend (with whom he wanted to enter into a sexual relationship).
Theis J summarised the judgment of HHJ Burrows as follows (Dr Rippon being the independent expert appointed to assist on the question of capacity):
46. In relation to the decisions under scrutiny the Judge dealt with residence at [35] – [37] where, having referred to the matters listed in LBX, he then posed the question whether ZZ understood that care is an important aspect of the place where he would have to live. He accepted the submissions on behalf of the Official Solicitor that care is not part of the relevant information in ZZ’s case, as what the local authority submit brings into the mix another placement that ZZ has to consider, namely one without the proper level of support, and that simply is not an option at the present time, so the Judge concluded ‘If one removes the ‘care’ point from the LBX list as it applies to this case, there is no doubt ZZ has the capacity to decide on residence'[36]. The Judge continues that he has reached that conclusion as ZZ ‘does not actually have a decision to make over whether he lives in a care setting'[37] although he recognises the situation could change and if it did, ZZ’s capacity would need to be re-assessed.
47. In relation to capacity to engage in sexual relations he referred to the test in JB and the fact specific nature of any decision. He referred to Dr Rippon’s evidence on the relevant matters and noted that Dr Rippon’s evidence on the issue of consent has vacillated, her focus is on ZZ’s insight into his ability to control his behaviour and stop himself from engaging in behaviour he knows is wrong and situations where ZZ may find himself in where he may find it difficult to stop himself because of his sexual urges. The Judge stated at [46] “Clearly, urges are, by their very nature, difficult to control, and it would be setting the bar too high if capacity to consent to sexual relations were to be ruled out because a person was unable to control an urge (for instance) to carry on with the sexual act. Having said that, ZZ is a sexual offender who is unable to control his urges to engage in very harmful and criminal sexual behaviour, as I have already found.”
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- He then set out his conclusion at [47] as follows:
‘All that being said, I agree with the Official Solicitor’s submissions on this. I do not accept that a sixth factor or limb ought to be introduced into the JB test, namely, to have insight into and the ability to control one’s urges. I also agree the conclusion I have reached, namely that Peter has capacity in this area, fits in with Cobb J’s statement in Re Z [2016] EWCOP 4, namely that ordinary risk taking, which may be unwise does not render the decision incapacitous. I would go further. A person can have the capacity to engage in sexual relations, understanding that his partner may withdraw her consent at any moment, and that with that he must stop the sexual act. If, however, when that withdrawal of consent happens the person is unable to overcome his urges, that is nothing to do with capacity to consent to sexual relations.’
49. Turning, finally, to the issue of marriage he concluded in [50] that in the light of his conclusion regarding sexual relations ZZ has capacity to enter into a marriage.
Theis J reminded herself of the fact that:
75. The Judge below had the benefit of hearing the evidence, in particular from Dr Rippon, and this court recognises that the test is not whether this court would have reached the same conclusion, or a different one. The question is whether the Judge was able to reach the conclusions he did on the evidence he had, within the relevant legal framework.
76. Ms Roper was right to remind the court of the importance of the presumption of capacity, it is an important principle that underpins the MCA. Also, that the court needs to consider whether it is satisfied on the balance of probabilities that that presumption is rebutted. In relation to capacity to engage in sexual relations, cases such as JB have reiterated that the bar must not be set too high. Further, that the court should guard against the protection imperative.
77. Equally, Mr O’Brien was right to emphasise the need for the court to consider the serious grave consequences for ZZ and others, as referred to in JB at [74], the need for the Court of Protection to guard against approaching questions of capacity in silos (see Hull CC v KFat [24]) and to have in mind the overlap between different decisions.
Theis J was critical of the evidence of Dr Rippon, noting that it was at times confused and confusing (paragraph 78), and that whilst this “perhaps reflected the complexities in this case, [it] also made the task facing this experienced Judge much more difficult.”
Residence
Theis J noted that the decision reached by HHJ Burrows was founded on his conclusion that the case that ZZ received was not a relevant matter for him to consider when making current decisions about where he should live. However, Theis J identified that he had not taken into account the issue of whether ZZ’s wish to live with his girlfriend and her mother was “a pipe dream” or not. Dr Rippon had identified that it was not, as “…during the course of both interviews that was what he wanted, that’s where he wanted to live, that was his…the place that, you know, that they’d identified as where he did want to live” (para 80).
At paragraph 82, Theis J found that HHJ Burrows had fallen into error in the following ways:
(1) He did not properly analyse the evidence regarding whether ZZ’s wish to live with TD and her mother was a pipedream or not, as had been asserted by the Official Solicitor on ZZ’s behalf. In her oral evidence Dr Rippon considered it was more than that and gave her reasons for saying that. In addition, this was the view ZZ had expressed over a period of time to a number of people.
(2) On the particular facts of this case, the Judge fell into error by not properly considering that the requisite care needed was relevant information to the issue of residence. In my judgment arguably it was. Ms Roper accepted that the declaration made by the Judge would have been more accurate if it stated that the declaration about residence was in the context of the care being provided. To do that would have required the Judge to analyse ZZ’s ability to understand relevant information about the need for the care and support and use or weigh it in reaching a decision. That would include considering, in the context of residence, the evidence that ZZ did not consider he required the care and support that was being provided.
(3) The risk in the Judge’s approach to this issue is that it has been considered in a silo, with implications for the local authority in being able to coherently manage a care plan for ZZ in the light of the declarations made which, although referred to at [48], was not properly addressed by the Judge.
Sexual relations
Theis J found that this was a particular difficult issue, but that (at paragraph 85) “not without some hesitation” she had reached the conclusion that the decision on this aspect was wrong because:
(1) The Judge did not properly deal with various aspects of Dr Rippon’s evidence in particular (a) whether ZZ was able to use or weigh information about consent in the context of ZZ’s sexual impulsivity and the complexity of the causes of that, including his mental impairment; (b) that ZZ’s disinhibited sexual behaviour was due to a combination of his mental impairment, which included his cognitive functioning and executive functioning and gave disproportionate weight to the significance of ZZ’s ordinary sexual urges/desire.
(2) The Judge wrongly equated ZZ’s sexual disinhibition with the usual risk-taking of a person of commensurate maturity (as Cobb J did in Re Z). The Judge failed to properly weigh in the balance the evidence that ZZ has a record of sex offending and has been assessed as manipulative and presenting a very high risk. His sexually disinhibited behaviour falls into a different category than that envisaged by Cobb J in Re Z, with the result that the ability to use or weigh the question of consent needs to be considered in that context.
(3) The Judge erred in not following the approach set out in JB by asking himself first is the person unable to decide the matter for himself by reference to the matter and the relevant information, second is there a clear nexus between his inability to make a decision in relation to the matter and an impairment of, or disturbance in the mind or brain. If he had taken that structure it would have directed him to the relevant parts of Dr Rippon’s evidence.
Marriage
As regards regards marriage, Theis J declined to resolve the difference of judicial opinion as to between Parker J and Mostyn J as to whether it is a pre-condition of capacity to marry that the individuals concerned have capacity to enter into sexual relations. On the facts of ZZ’s case, however, she found that the ground of appeal was also made out, because it was a consistent feature of the evidence that ZZ wishes to marry his girlfriend and for them to have children.
Outcome
Theis J was sitting as an appeal judge. On the facts of the case, she did not take the path of herself declaring that ZZ lacked capacity in the material domains. Rather, she remitted the case to reconsider the question of capacity.
Comment
This is the second case in relatively quick succession to emphasise the difficulty of disentangling residence and care (see also Re CLF at paragraphs 36 and 37). In the context of a person with care needs, I would strongly suggest that it would be an unusual case in which it is possible to address residence and care separately without falling into the hole between two silos (to mix metaphors).
The case is also of note for Theis J’s observation that following the order of considering capacity set down by the Supreme Court in JB is important, not just because that is what the law requires, but because it does actually make a difference when it comes to considering whether the ‘causative nexus’ is made out. In this regard, it is perhaps also worth flagging that, albeit somewhat belatedly, the White Book now helpfully has the ordering the correct way around for the benefit of those considering litigation capacity in the conduct of civil proceedings.
