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Autoerotic Asphyxiation and the Court of Protection: An Analysis of Re AA [2020] EWCOP 66

by Kathryn Kember

Invicta Law’s Kathryn Kember analyses the case of Re AA [2020] EWCOP 66, looking at how Autoerotic Asphyxiation was considered and the relevant information for assessing capacity in this area.

Background

This case concerns AA, a 19-year-old man who had been diagnosed with autism and Asperger’s Syndrome.

AA had interests in autoerotic asphyxiation (‘AEA’), cross-dressing, abduction, rape and ‘My Little Pony’. 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.

AA was subject to the following restrictions:

  1. one to one staffing at all times with visual checks every 10 minutes throughout the day and every 15 minutes when he was asleep
  2. no unsupervised access in the community or social time
  3. his mobile phone checked every evening by a member of staff; and
  4. his bedroom searched by the staff twice per day.

Proceedings were brought by the applicant local authority and the court was asked to determine the following matters:

  1. AA’s capacity to:
    • conduct proceedings
    • make decisions regarding AEA
    • make decisions regarding internet and social media usage
    • consent to sexual relations and
    • make decisions regarding contact with others
  2. AA’s best interests in the above domains where he lacks capacity to decide; and
  3. Whether the court should authorise AA’s deprivation of liberty

Submissions

On the evidence available, both parties felt satisfied that AA had capacity to conduct the proceedings, and to make decisions about his residence, care, contact with others and to have sexual relations [para. 33]. It however remained to be determined whether AA had capacity to engage in AEA and to have contact with people online [para. 44].

The local authority invited the court to make declarations that AA lacked capacity to make decisions about engaging in AEA and to make decisions about his use of the internet and social media.

The local authority further submitted that the provisions of s27(b) of the Mental Capacity Act 2005 precluded the court from making any decision on behalf of a person in relation to sexual relations; so If AA was found to lack capacity to engage in AEA then no best interests decision should be made by the court [para. 31].

Contrary to the position of the local authority, the Official Solicitor argued that the court should accept that AA had capacity in all domains before the court. In relation to AEA the Official Solicitor argued that the local authority had failed to establish that AA’s ASD caused him to engage in AEA or precluded him from making a capacious decision in this domain [para. 40].

The Official Solicitor then advanced a complex argument that, if AA was found to lack capacity, it would be contrary to public policy and a violation of AA’s article 8 ECHR right to analyse, weigh up and make a decision on his behalf on whether he should engage in AEA or not, citing the highly subjective factors of sexual pleasure. The Official Solicitor further argued that if AA did lack capacity, then the court must assess whether or not AA has capacity to access support in relation to AEA [para. 48-52], and that in relation to AA’s contact with others online, the local authority should devise a care plan for the court’s approval [para. 38].

The Official Solicitor’s secondary position was that if the court was minded to conclude that AA lacked capacity in the two areas in dispute, then the court should not make section 15 final declarations, but instead section 48 interim declarations on the evidence available.

Decision

Capacity

Mr Justice Keehan accepted the local authority’s submissions that AA lacked capacity to engage in AEA and make decisions about contacting people online, but agreed with the Official Solicitor that it was more appropriate to make interim rather than final declarations at this stage in the proceedings.

In his judgment Mr Justice Keehan helpfully sets out the information to be considered when assessing a person’s capacity to engage in AEA, referring to the consensus reached by the two experts instructed in this case:

  1. the concept of AEA;
  2. the manner in which a person engages in AEA;
  3. the range of risks and harm associated with the practice of AEA and their likelihood; and
  4. knowledge and use of safety strategies and their effectiveness (recognising that AEA is an inherently dangerous practice and potentially life threatening) [para. 18 approved at para. 49]

Not relevant:

  1. The impact on others in the case of injury or death [para. 49]

Mr Justice Keehan further explains at paragraph 18 that one of the experts in these proceedings, Dr Burchess had also considered that knowledge and experience of other strategies for obtaining sexual gratification was also relevant, and that the other expert, 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 advanced that a sensory profile assessment was crucial to understanding the impact of ASD on AA’s life, in particular his preference for sexual gratification [para. 24]. Mr Justice Keehan accepted that the impact of AA’s ASD was largely unassessed, however concluded on the evidence available that there was reason to believe that AA’s engagement with AEA is a manifestation of his ASD and he lacked capacity in this area because of his ASD [para. 50].

Best Interests

In relation to best interests, Mr Justice Keehan agreed with the parties that no best interests decision should be made in relation to AEA, and agreed with the Official Solicitor that the local authority should draft a care plan in relation to AA’s contact with others online, and that education should also be provided to AA to help him understand alternative means of obtaining sexual gratification. He did however determine that the matter of AA’s capacity to engage in such educative support should be ‘parked’ for the time being, and returned to at a later stage as neither Dr Ince or Dr Burchess felt able to offer an opinion on this matter.

Whilst Mr Justice Keehan noted that “AA is subject to very invasive restrictions” He concluded that “at the moment they are necessary to protect him and to ensure his life is not unnecessarily endangered” [para. 61].

Commentary

This is the first case to consider AEA and the relevant information for assessing capacity in this area.

It perhaps interestingly suggests that section 27(b) MCA, which imposes a statutory prohibition on best interests decisions in respect of P’s consent to sexual relations, equally applies to auto-erotic acts, although Mr Justice Keehan treats this with some caution noting that to make such a best interests decision in relation to AEA “would be contrary to s.27(1)(b) or, at least, the philosophy of this provision” [para.55].

Finally, it is salient to note that Mr Justice Keehan warns against moralising and interference with individual’s sexual lives noting that “the issues engage the most private and personal” and “the state should be very slow to interfere with the same”[para. 45]. This suggests the cautionary approach the Court of Protection and the judiciary at large should take when considering sexual relations and sexual practices of individuals.

A link to the full judgement can be found here: http://www.bailii.org/ew/cases/EWCOP/2020/66.html

Invicta Law’s Community Care team can assist with advice in respect of the Mental Capacity Act and adult social care generally. We provide pragmatic solutions for clients, delivering high quality legal advice at competitive rates. Contact us on 03000 415747 or email kerry.short@invicta.law.

Contents of this article are intended for general information purposes only and shall not be deemed to be, or constitute professional or legal advice. Invicta Law cannot accept responsibility for any loss as a result of acts or omissions taken in respect of this article.

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