AA (Court of Protection: Capacity To Consent To Sexual Practices)  EWCOP 66 concerned AA, a 19 year old man, who had been diagnosed as having autism and Asperger’s Syndrome. He had interests relating to certain sexual practices including autoerotic asphyxiation (‘AEA’). He had posted material about himself on the dark web, advertising his wish to be a submissive partner and his desire to be kidnapped and raped. Having been the subject of a care order prior to his majority, he was now the subject of an application before the Court of Protection for (in effect) an adult care order. He was subject to (or in receipt of) 24/7 support at his supported living placement, giving rise to a deprivation of his liberty.
Keehan J had to consider (1) AA’s capacity to conduct proceedings and make decisions regarding AEA, internet and social media, consent to sexual relations and contact with others; (2) AA’s best interests in those domains where he lacked capacity to decide; and (3) whether he should authorise AA’s deprivation of liberty.
An expert psychologist, Dr Burchess, considered that AA had capacity in all material domains, and that AEA should be addressed as a specific decision in a domain different to engagement in sexual relations. An expert psychiatrist, Dr Ince, was instructed to report on AA’s capacity to make decisions regarding AEA and to make decisions about the use of the internet and social media in the context of his contact with others whom he meets online.
The two experts agreed that the information relevant to making decisions regarding AED included: (1) the concept of AEA; (2) the manner in which AA engaged in AEA; (3) the range of risks and harm associated with the practice of AEA and their likelihood; and (iv) knowledge and use of safety strategies and their effectiveness (recognising that AEA is an inherently dangerous practice and potentially life threatening). Dr Burgess also included knowledge and experience of other strategies for obtaining sexual gratification. Dr Ince agreed but considered this was more complicated for AA because of issues relating to his diagnosis of ASD which were currently unassessed.
Dr Ince considered that AA lacked capacity to make decisions regarding AEA because (1) he had no knowledge of the risk of partial hypoxia and acquired brain injury;(2) he was unable to cross-transfer skills and knowledge because of his autism; (3) although he had a basic understanding of the risks in relation to plastic bags, he cannot transfer this knowledge to other similar mechanisms; and (4) AA could not retain information related to specific breathing techniques and similar information provided to him with the educative work undertaken with him.
In relation to the use of internet and social media, Dr Ince considered that, whilst AA was able to understand and retain the relevant information, he was unable to weigh this information and could not transfer the information from one specific scenario to another. Of particular relevance, Dr Ince identified that “[AA] demonstrates knowledge for scenarios upon which he has been taught, but cannot transfer these to current or future scenarios – [AA], as a consequence of his ASD is, through necessity, an experiential learner, however in this area, such actions may cause him and others significant harm.”
In the course of his oral evidence, Dr Ince noted that AA had not undergone a sensory profile assessment. As Keehan J noted at paragraph 24
He considered this was a crucial assessment which would enable a much clearer understanding of the impact of ASD on AA’s life and his capacity to make decisions: it was key to his whole life. A particular focus in Dr Ince’s evidence was whether AA’s engagement in AEA was a feature of his ASD or a personal preference to achieve sexual gratification. In the absence of a sensory profile, Dr Ince tended to the view that it was a manifestation of his ASD and, in any event, his inability to weigh the relevant information regarding AEA and his inability to cross-transfer skills and knowledge resulted from his ASD.
In light of Dr Ince’s conclusions followed that AA would lack capacity to have contact with others online, at least, in respect of his sexual interests.
Dr Burchess did not change his opinion in light of Dr Ince’s evidence, but agreed that a sensory profile assessment was important.
In light of the evidence of Dr Burchess, there was agreement between the local authority and the Official Solicitor, and Keehan J agreed, that AA now had capacity to conduct the proceedings, and to make decisions about his residence, care and to have sexual relations. The issues in dispute were therefore whether AA had capacity to make decisions about his engagement in AEA and in relation to his contact with people he meets online.
Keehan J accepted that the issues in question “engage[d] the most private and personal of AA’s Article 8 rights and that the State should be very slow and cautious to interfere with the same” (paragraph 45), and that:
46. Capacitous individuals engage in AEA notwithstanding that it is an inherently dangerous practice which carries a very real risk of acquired brain damage or unintentional death. Many capacitous individuals engage in contact with strangers on the internet or on social media which puts, or may put them, at risk of physical, sexual, emotional or psychological harm. They are entitled to make an unwise decision.
Keehan J also accepted that he “must not adopt an approach based on a moral judgment about AEA or on contacting strangers on the internet or social media. Nor must I adopt a protective stance towards a person when determining whether they have capacity to make a decision to engage in AEA notwithstanding that they are very likely to make an unwise or risky decision” (paragraph 47).
Keehan J accepted that the relevant information for AA to make a decision in respect of AEA was as set out above. He noted that he had considered whether the impact on others (e.g. close family members) in the case of acquired brain injury or death as a result of engaging in AEA is a relevant factor. However, “I have concluded it is not. I accept it would set the bar too high in comparison to capacitous adults who engage in the practice of AEA” (paragraph 49).
At paragraph 50, Keehan J accepted Dr Ince’s evidence and conclusions that, on the current evidence, there was reason to believe that AA’s engagement was a manifestation of his ASD and that he was unable to weigh information about the practice or cross-transfer information because of his ASD. He noted, and was particularly concerned by, Dr Ince’s opinion that (1) AA potentially has a high threshold to sensory stimulus and thus may require a higher level of stimulus to achieve the same outcome; and (2) AA’s ‘addiction’ and intrinsic compulsion to engage in AEA, and other restrictive and circumscribed interests, are likely to render it difficult to change his behaviour. This meant, Keehan J identified, that “in my judgment AA is at high risk of being unable to regulate his engagement with AEA and therefore at greater risk of serious harm or death” (paragraph 51).
Keehan J also preferred and accepted the evidence of Dr Ince that AA did not have capacity in relation to contact with those people he meets online because of his ASD and because of his inability to weigh information and to cross-transfer information (paragraph 52). He noted that the issue of whether AA had capacity to consent to support when engaged in AEA was a difficult one upon which neither expert felt able to offer an opinion; he therefore proposed to ‘park’ it and return to it at a later stage if clear and cogent evidence is available to enable me him determine this issue.
On its face oddly, but no doubt representing the fact that Keehan J was intending to return to the issue, the declaration relating to AA’s capacity to make decisions about AEA and contact with others he may meet online was made on an interim (s.48) basis, rather than a final (s.15) basis. However, he declined to make any best interests decision in relation to his engagement in it (both parties, for different reasons, having submitted that none fell to be made) “because it would be contrary to s.27(1)(b) [which prevents the court consenting to sexual relations] or, at least, the philosophy of this provision for the court to make a decision in respect of AEA on AA’s behalf” (paragraph 55).
Keehan J agreed that a care plan in relation to contact should be drafted for the court’s approval which developed a best interests framework which (1) enabled the professionals and the court to be better informed about the impact of AA’s ASD on his life and his functioning; (2) enabled the professionals and the court to better understand how AA could be supported to gain capacity to make decisions about these two issues; and (3) permitted AA sufficient autonomy of decision making and respected his right to a private life whilst balancing the need to protect him from harm.
Unsurprisingly in light of the evidence received, Keehan J held that it was “crucial” that a sensory assessment of AA was undertaken as soon as possible, and that, with the benefit of that plan, the local authority provided him with an education programme to enable him to understand alternative means of obtaining sexual gratification other than by engaging in AEA and enable him to contact others online safely and securely or, at least, to be able to weigh and understand the risks at which he places himself by this activity. He also considered it was essential therapy was made available to AA to AA to deal with his past experiences and to explore how his ASD had an impact on his day-to-day life. Perhaps optimistically, Keehan J considered that he had “no doubt that AA will readily engage with this therapeutic process” (paragraph 61).
Keehan J concluded at paragraph 61 by holding that:
AA is subject to very invasive restrictions. At the moment they are necessary to protect him and to ensure his life is not unnecessarily endangered. I would hope that the local authority and the care provider will give anxious consideration to the degree, if at all, to which some of the restrictions may be reduced, pending the outcome of the assessments, education and therapy referred to above. Such reductions if safely achievable will recognise AA’s right to a private life and will increase his autonomy.
It appears from this concluding observation that Keehan J may have authorised the deprivation of liberty, although quite how he could have done in light of the finding that AA had capacity to make decisions about his residence and care arrangements is not immediately obvious. It is to be hoped that any further judgment might shed light upon this.
This case clearly troubled both the experts and the court, and rightly. It is a paradigm example of how complex an exercise respecting rights, will and preferences (to use the language of Article 12 CRPD is). Some may feel it plain wrong that the state was even intruding into such a private area for AA. Others may feel that the state is under a positive obligation to do so to secure his life – not just by reference to Article 2 ECHR but also by reference to Article 10 CRPD (as to the rather underdeveloped commentary on this positive obligation, see here).
Whatever one feels about the decision reached in this case, it is perhaps significant to note the expressly provisional basis upon which Keehan J did so and the clearly identified steps that he set out to enable him to reconsider the balance in due course. Such might be thought to recognise the balance between humility and confidence identified as so important by Sir Mark Hedley in his observations about the judicial process.
More broadly, the situation where a person is an “experiential learner” is one that poses real and important challenges to the operation of the MCA 2005, and, in particular, for situations where the very experience in question (as here) is potentially dangerous.
Finally, it may be thought that Keehan J was wise not to pin his colours to the legal mast as regards the question of the operation of s.27(2)(b) MCA 2005. Not just because it was clear that everyone accepted that AEA is conceptually different for capacity purposes to sexual relations, it is far from obvious that s.27(2)(b) MCA 2005 actually covers situations where there is no other sexual partner involved. Whether its philosophy prevents best interests decisions being made in this regard may be a question to which Keehan J will have to return in the event that the work he has envisaged does not lead to a result whereby either (1) AEA gains capacity in this domain; or (2) ceases to express a wish to engage in it.