Court of Protection applies person specific approach in capacity to engage in sexual relations
Hull City Council v KF (by her litigation friend, AI)  EWCOP 33
In this case, Mr Justice Poole sitting as a Tier 3 judge of the Court of Protection had to consider whether it was in KF’s best interest to allow her dying wish to have unsupervised and overnight contact with her abusive partner.
The facts and nature of the case were complex and involved issues around capacity to engage in sexual relations and whether a person-specific approach was to be taken. It is a case which highlights the sensitive and complex work of the Court of Protection.
Hull City Council had previously issued proceedings in the Court of Protection to safeguard KF, a young female with a learning disability, in a violent relationship with KW that resulted in a serious sexual assault. This assault caused KF to suffer injuries that required surgery and blood transfusions. It had been noted that if it without such medical intervention, KF could likely have died.
As a result of the assault, KW was charged with s.18 (Grievous Bodily Harm) assault under the Offences Against the Person Act 1861. KW subsequently entered a plea to an offence under s.20 (Unlawful Wounding/ Grievous Bodily Harm) assault under the same Act. By the time this case was being considered by Mr Justice Poole, the plea had been accepted by the Crown and KW was due to be sentenced within the 4 days of the Court of Protection hearing. It was likely KW would receive a sentence of imprisonment. Sadly, KF had been diagnosed with stage 4 breast cancer, with a prognosis of two months to two years to live. The urgency of the court determining the application was obvious and an urgent application was then made to the Court of Protection to determine whether it would be in KF’s best interest to have unsupervised and overnight contact with KW knowing that it could likely lead to sexual relations.
Representation of KF
As there was evidence before the court to conclude that KF lacked capacity to make decisions in respect of the court proceedings, AI was appointed as litigation friend.
A litigation friend is someone who makes decisions about the conduct and litigation decisions in court cases for people who lack mental capacity to conduct the proceedings.
KF’s litigation friend, AI, then instructed our Nichola Burridge-Todd to act on her behalf.
Part of our role was to ensure KF’s wishes and feelings are conveyed to the court and the parties and consider what is in KF’s best interests.
KF’s wishes and feelings
KF’s prognosis is poor and it was apparent that by the time KW would be released from prison, KF may sadly have passed away.
KF’s solicitor, Nichola Burridge-Todd, had met with KF on a number of occasions to obtain her wishes and feelings about the issues raised in the court proceedings. Here, KF would make it clear that she wanted overnight supervised contact with KW and why:
“I queried the reason for KF wishing to stay overnight with KW. KF said that she misses him and that she wants to hug him and lay next to him. I apologised to KF but stated that I wanted to ask her a very personal question and questioned whether or not she wanted to have sex with KW. KF stated “I am open to having sex if it progresses to that that is fine”. I asked KF if KW is physically able to have sex. KF confirmed that he is. KF advised that he had had 3 children. I explained that I had understood that he had some issues previously. KF confirmed that he had but that he is able to have sex. I asked if KW had said he wants to have sex with her and KF confirmed that KW has said that he does want to have sex with her.”
KF also met with Mr Justice Poole before the hearing, and expressed that she wished to have sex with KW during this unsupervised contact.
Contact with KW
One point of concern expressed by Mr Justice Poole was that KW is not held on remand nor subject to any bail conditions. Therefore the only protection that was being afforded to KF were under orders made in the Court of Protection.
Earlier in the proceedings, Dr Mynors–Wallis was instructed to conduct a capacity assessment which concluded that KF lacked capacity to make the relevant decisions in relation to her residence, care, litigation and contact with others. However, he concluded KF had capacity in relation to sexual relations. In reaching this conclusion, Dr Mynors- Wallis confirmed that he had considered the relevant test for capacity to engage in sexual relations as set out in A Local Authority v JB  UKSC 52 to reach his conclusions.
However, it is noted that when considering KF’s capacity to make decisions about residence, he commented:
“It is my opinion that KF has not retained information about the assaults and the risk that she might be assaulted by KW again. It may be that she knows this and deliberately withheld the information from me, or it may be that she will not allow herself to think about it. KF in Ms Sutherland’s capacity assessment had not retained the information that KW had assaulted other women. It is my opinion, on the balance of probabilities that KF has not retained all the information that she needs to make a capacitous decision about residence.”
Dr Mynors-Wallis was further instructed to produce an addendum report. He was asked the specific question of whether, if the relevant information included the harm that KF was at risk of suffering during sexual relations with KW, she could understand, retain and weigh or use that information. Dr Mynors-Wallis addressed this question and then concluded that KF had capacity to engage in sexual in relation in general but lacked capacity to make the relevant decisions in relation to engaging in sexual relations with KW only if relevant information included the harm that KF was at risk of suffering during sexual relations with KW, as she could understand, retain and weigh that information.
Mr Justice Poole’s decision
At an earlier hearing, Barrister, Mr Joseph O’Brien QC, who was instructed by Switalskis Solicitors in these proceedings to represent KF, outlined the dilemma of the case: “Many people would ask objectively why would anyone allow a woman in the circumstances of this case to have contact with the man who has inflicted this harm on her, four days before he’s sentenced for inflicting that harm. There’s no doubt the risk is real. But, My Lord, you are dealing with someone facing the end of her life, and she is very clear about what she wants.”
In reaching a decision, the judge had to consider two matters:
- KF’s capacity to engage in sexual relations with KW and specifically whether the relevant information included the risk of harm to KF from KW during sexual contact. The judge had little hesitation in concluding that this was relevant information and that KW lacked capacity to consent to sexual relations.
- Whether it was in KF’s best interests to spend private, unsupervised time with KW to include overnight contact.
In his judgment, Mr Justice Poole stated: “Weighing all the circumstances I am sure that it is not in KF’s best interests to have unsupervised contact with KW whether overnight or during the day, and whether for a short period or longer. In principle, support could be offered to KF before and during private, unsupervised contact with KW in an attempt to keep her safe but in my judgment such support would be impractical and could not effectively keep her safe”.
This case concerns KF, and matters which are of great importance to her. All professionals and experts in this case had to be mindful of the complex set of facts and how much of an impact any decision being made by the court would have upon her. The question of what is the relevant information must be carefully considered for any capacity assessment, to ensure that any capacity assessment undertaken fully assesses P fully and accurately, but does not set the threshold too high or appear overly paternalistic in their assessment.
Mr Justice Poole ruled that KF should not have unsupervised overnight contact with KW. Upon considering all the evidence available it was decided this contact would be too unsafe given all the facts. Whilst this was a very disappointing decision for KF, it was undoubtedly the correct one.
Mr Justice Poole stated “It is difficult to see how a person who lacks capacity to decide to have contact with a specific person could have capacity to decide to engage in sexual relations with that person. In cases in which it has been determined that P lacks capacity to make decisions about contact with a past or potential partner because of the risk of harm to P or by P, and it has been determined that P has capacity to decide to engage in sexual relations, consideration should be given to P’s capacity to decide to engage in sexual relations with that partner. Failure to do so could result in incoherent capacity decisions. It was right to consider capacity to engage in sexual relations as a person-specific issue in this case.”
Author: Georgia McKelvey, Court of Protection Paralegal