The High Court considers the case of a young woman at high risk of sexual harm and gives guidance on how to approach cases which necessitate restrictions in areas where people have capacity.
This case concerned a woman in her early 20s, LC, who has significant learning disabilities and Autism. A feature of LC’s Autism is that she is preoccupied by a sexual interest in men.
Manchester City Council began proceedings in the Court of Protection in 2013 because of concerns that LC was at significant risk of sexual harm if she went into the community unescorted.
In November 2016, a judge decided that LC had capacity to make decisions about who she had sexual relations with and whether she should get married. However, the judge also decided that LC lacked capacity to make decisions about which men she had contact with and what sort of care she needed to keep her safe.
In June 2018, the judge agreed a care plan which enabled LC to have unsupervised contact with men. LC was taken advantage of by a number of these men and the care plan attracted substantial public criticism. The matter was quickly brought back to the Court of Protection before being transferred to a Court of Protection judge sitting in the High Court, Mr Justice Hayden.
Mr Justice Hayden gave an interim judgement, the first judgement in this case’s five year history, to put the important issues raised into the public domain. He also commented:
“In simple terms, whether the measures put in place to protect LC in those areas where she lacks capacity may legitimately impinge on her autonomy in those areas where her capacity is established. It has been canvassed that if the court is to restrict LC either in part or, potentially, fully in such a sphere (i.e. where she has capacity), the court ought only to consider such measures under the parens patriae jurisdiction of the High Court…In future, it seems to me, where issues arise that may necessitate restrictions in areas where adults have capacity, these should be heard by a High Court Judge in the Court of Protection. In fact, as I have reviewed the authorities, I note that, historically, these cases have all been considered in the High Court.” (paragraph 24)
In this case, LC was initially found to be able to make decisions about having sexual relations but was unable to make decisions about which men to have contact with. These decisions are closely related and developing a care plan which protected her in the areas she lacked capacity meant that she was restricted in the areas where she has capacity.
The judgement highlights the practical difficulties of capacity being issue specific and the complexities of caring for people who can make decisions in some areas but not others. The challenge for those supporting these people is how to protect them without being overly restrictive in areas where they can make their own decisions.
Mr Justice Hayden recognised that limiting the freedom of people in areas where they have capacity is a considerable responsibility and has recommended that going forward these decisions should always be made by a senior judge.