Protecting a Vulnerable Adult with Capacity to Enter into Sexual Relations: The Role of the Local Authority and the Courts
Written by Erica Ffrench
Solicitor in the Community Care team
In an important case concerning the capacity to engage in sexual relations, Justice Hayden has given the first published judgment in proceedings that have been ongoing before the Court of Protection for 5 ½ years. Justice Hayden questioned whether the terms of the Mental Capacity Act 2005 designed to protect a vulnerable adult where they lack capacity may actually impinge too much on those areas where capacity is established. Where such issues are raised, the case should be heard by a High Court Judge sitting in the Court of Protection.
What happened in the case
Manchester City Council Legal Services v LC & Anor  EWHC 2849 (Fam) concerns a young woman (“LC”) in her early twenties with a diagnosis of Autism Spectrum Disorder (“ASD”) and significant learning disabilities. She was placed in care as a child. A feature of her ASD as a young woman was what Justice Hayden characterised as an obsessional sexual interest in men.
Manchester City Council attempted various approaches to help LC develop her capacity to understand how to keep her relationships with men safe. The local authority eventually made an application to the Court of Protection in 2013 as they felt that LC was at a very high risk of sexual harm should she be allowed to go out into the community unaccompanied.
At a hearing in November 2016, Mr Justice Peter Jackson made declarations that LC had the capacity to engage in sexual relations, marry and make decisions around contraception. However the Judge also declared that LC lacked capacity to conduct the legal proceedings and decide where she should live or what care and support she needs in order to keep herself safe.
Shortly after this hearing, LC married. Soon after getting married however, LC began to seek sexual relations with strangers. The local authority made a further application to Court seeking an order on the appropriate level of restriction necessary to protect LC’s sexual integrity. The care and support plan subsequently authorised by His Honour Judge Butler included a requirement for one to one community supervision. In practice, this led to LC having unsupervised sexual contact with men other than her husband at her own home.
Whilst it is without doubt that the local authority were enabling this with LC’s best interests at heart, this resulted in a number of men taking advantage of LC, and as Justice Hayden later identified, compromising her safety and dignity and imposing ‘an intolerable burden on those supervising her’.
The case understandably then went back to the Court of Protection, where the Judge authorised a tightening of the restrictions on LC engaging in sexual relations with strangers. The Judge also directed that the case be transferred to a Court of Protection Judge sitting at the High Court.
LC was placed in an all-female shared residential unit. The local authority now facilitates LC’s husband’s transport to visit her five days a week with two overnight stays. LC meanwhile remains ambivalent to continuing her relationship with her husband.
Legal framework behind the judgment
Justice Hayden reminded himself of the core principles of the Mental Capacity Act 2005 when making his judgment. He particularly emphasised the principle that a person is not to be treated as unable to make a decision merely because it is an unwise decision, and that an act done on behalf of a person who lacks capacity must be done in their best interests.
The case presents a complex legal framework for practitioners and the Courts to navigate: someone who is assessed to have capacity to enter into sexual relations may need to be supported by the local authority to fulfil that need. However they can also be deemed to lack the capacity to decide who it is safe to have those relations with, and therefore the local authority must impose restrictions on how the need can be fulfilled.
What came out of the judgment?
- There is a positive and ongoing obligation on the local authority under the Mental Capacity Act 2005 to develop LC’s capacity to understand the negative consequences around her choice of sexual partners.
- The issues raised by the case should be in the public domain in order to generate informed public debate.
- Such cases should be brought without delay in order not to cause undue harm, and to preserve a vulnerable adult’s rights under Article 6 of the European Convention on Human Rights.
- Where an application is being made to restrict P in a sphere in which she is deemed to have capacity, an application should be made under the inherent jurisdiction of the High Court rather than the Court of Protection. The application should certainly be heard by a High Court judge sitting in the Court of Protection.
Proceedings continue with the case to be next heard in January 2019.
If you would like to read the full text of the judgment, you can do so here.
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