Judgment concerning whether the PN had capacity to make decisions about engagement in sexual relations.

‘Simon Garlick specialist Court of Protection barrister was instructed by the local authority (led by Joseph O’Brien KC) in the case of Re PN (Capacity: Sexual Relations and Disclosure) [2023] EWCOP 44 decided by Poole J, sitting as a Tier 3 judge in the Court of Protection’. The case concerned a 34 year old man with diagnoses of mild learning disability and autism, who had a history since childhood of impulsive sexual assaults on women, including staff at the forensic placement he now lives at.  Declarations had been made that PN lacked capacity to make decisions about his accommodation, his care and support, his contact with others and his access to the internet and social media. At this hearing the court was asked to make decisions about his capacity to engage in sexual relations and his capacity to decide on disclosure to others – in particular women with whom, probably following social media contact, PN might express face to face contact – of information about his assessed risk to women. 

The court heard evidence from an independent Consultant Psychiatrist whose conclusion – ultimately accepted by all parties and the court – was that PN’s impulsive assaults did not arise from a momentary inability to use or weigh relevant information  (in particular the requirement for the other party to consent to any sexual act), and were not caused by his autism or his learning disability. Rather his actions arose ‘because of his character and outlook and not because of his impairments’.  The case is of interest in its analysis of how the Supreme Court’s decision in A Local Authority v JB[2021] UKSC 52 relating to decisions to engage in sexual relations should be applied in circumstances where an individual may make unwise or even harmful decisions. The court also decided that PN had capacity to decide whether information about his risk to others should be disclosed, the first time such an issue has come before the court of protection.

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