The Court of Appeal (CoA) heard a leapfrog appeal regarding an individual's capacity to engage in sexual relations under the Mental Capacity Act 2005 (MCA).
Background:
ZX was born in 2006 and, alongside his older brother, YX, has been the subject of care proceedings since he was three weeks old. There were concerns about their parents' mental health and issues with substance abuse, and the ensuing neglect and physical injuries experienced by YX in their care. The two brothers were adopted in 2007.
In 2011, aged 5, ZX was diagnosed with attention deficit hyperactivity disorder (ADHD). In 2012, the local authority (LA) became involved because of concerns about the brothers displaying harmful and violent sexual behaviours towards one another and animals. The adoptive parents found it increasingly difficult to manage their behaviour. In 2019, ZX was accommodated by the LA under Section 20 of the Children Act 1989 in a specialised residential placement for young people who display sexually harmful behaviours. At the unit, it was alleged that he committed rape and acts of sexual assault.
In 2021, YX was also moved to LA accommodation and the brothers were made subject to full care orders. In 2022, the brothers separately alleged that they had been sexually abused by their adoptive parents. However, no further action was taken after the police investigation.
ZX's use of social media and the Internet was monitored, an alarm was fitted to his door, and his contact with other young people was subjected to one-to-one supervision. Despite those measures, ZX told his therapist that he had engaged in sexual activities with other boys in the placement and behaved in a sexualised way towards members of staff.
Despite a Youth Justice Report, the police were unable to apply for a sexual risk order or a sexual harm prevention order in respect of ZX. Despite these continuing concerns, a decision was taken in 2023, to reduce the restrictions and allow ZX some unsupervised time in the community (two hours on two evenings each week).
The LA however sought an order that ZX lacked capacity which was granted by the Court of Protection (CoP). ZX appealed on various grounds.
Decision:
The CoA allowed ZX's appeal. The Court held that the CoP had applied the wrong test to determine capacity, noting that JB [2021] remains the leading case on capacity under Sections 2 and 3 of the MCA 2005. JB requires a "clear, causative nexus" between the inability to make a decision regarding the matter and an impairment of, or a disturbance in the functioning of, the mind or brain. This test was not changed. The Lower Court erred in merely seeking a “connection” between ZX's mental disturbances and his inability to weigh information, rather than the legally required “clear causative nexus”. The presumption of capacity under Section 1 of the MCA 2005 can only be rebutted if the requirements of the "clear, causative nexus" test in JB are met – a mere connection is insufficient. Moreover, ZX's offending history was not by itself indicative of an inability to understand, weigh or use information about consent.
The unreliable basis of Dr. Ince’s capacity assessment, which was based on a misunderstanding of Re ZZ, also prompted the Court to mandate a fresh psychiatric assessment – one which adheres strictly to established legal principles. The inclusion of Re ZZ in a note to Dr. Ince had caused that expert to significantly raise “the bar as to what a person needs to understand in order to have such capacity”.
Implications:
This case considers the thorny issue of the mental capacity required to engage in sexual relations. The CoA made it clear that the CoP should not become an arm of the criminal justice system. This judgement highlights the required strict adherence to legal tests and notes that any ancillary concerns could put the assessment process in jeopardy. There is a need for clarity in explanation as to the precise manner in which a person’s inability to make a decision is caused by the relevant impairment.
For public authorities, this decision clarifies the high threshold required by JB and the quite complex line they will have to follow for those in care under their statutory responsibilities.