- December 24, 2020
- Posted by: MJC Law
- Category: Court of Protection
On 15 December 2020 Mr Justice Keehan handed down the first judgment in the Court of Protection relating to a person’s capacity to engage in autoerotic asphyxiation (‘AEA’) in A Local Authority v AA [2020] EWCOP 66, setting out the relevant information that a person must understand, retain and use and weigh in order to make a capacitous decision.
Background
The case concerns AA who is 19 and who has been diagnosed with autism and Asperger’s Syndrome. AA currently resides in supported living and has a 24 hour care package. He has expressed interests in a number of sexual practices, including a wish to engage in AEA. He also chooses to engage with individuals online who share similar interests to him.
The case was brought to court by the local authority to consider AA’s capacity and to authorise the move to the supported living placement and any resulting deprivation of liberty. AA is currently subject to a number of restrictions at his supported living placement including:
1. One to one staffing at all times with visual checks every 10 minutes throughout the day and every 15 minutes when he is asleep;
2. No unsupervised access in the community;
3. Checks on his mobile phone and laptop by staff every evening; and
4. Bedroom searches twice a day by care staff.
The local authority considers that the above restrictions are necessary to keep AA safe but AA has expressed that he would like the restrictions to be lessened or removed altogether.
Expert evidence was provided in the case by Dr Burchess, clinical psychologist, who concluded that AA has capacity to conduct these proceedings and make decisions regarding his residence; care; contact with others; engagement in sexual relations; and using the internet and social media. Further expert evidence was provided by Dr Ince, consultant psychiatrist, on the discrete issues of AA’s capacity to engage in AEA and his use of the internet and social media in the context of the contact that he has with others that he meets online. Dr Ince concluded that AA lacks capacity in both areas.
At the hearing on 27 September 2020, the court heard from AA and heard evidence from both Dr Burchess and Dr Ince, as well as from AA’s social worker.
Judgment
The judgment of Mr Justice Keehan sets out that the relevant information when assessing a person’s capacity to engage in AEA, as agreed by Dr Burchess and Dr Ince, is:
i) the concept of AEA;
ii) the manner in which AA engages in AEA;
iii) the range of risks and harm associated with the practice of AEA and their likelihood; and
iv) knowledge and use of safety strategies and their effectiveness (recognising that AEA is an inherently dangerous practice and potentially life threatening).
Mr Justice Keehan also explains that Dr Burchess had considered whether knowledge and experience of alternative mechanisms for obtaining sexual gratification should be included and whilst Dr Ince agreed, he felt that issues relating to areas of his ASD being unassessed made this difficult for AA. [18]
Mr Justice Keehan was clear that the impact of a person’s death or acquired brain injury on others was not relevant information when assessing a person’s capacity as this “would set the bar too high in comparison to capacitous adults who engage in the practice of AEA.” [49]
On the evidence available, Mr Justice Keehan decided that AA has capacity to conduct the proceedings and make decisions regarding his residence, care and sexual relations. His Lordship decided, on an interim basis, that AA lacks capacity to engage in AEA and to have contact with others he meets online and that he should be provided with the necessary therapy and education in order to support him to make such decisions in the future.
Mr Justice Keehan agreed with the submissions of the local authority and the Official Solicitor that no best interests decisions should be made in respect of whether a person should engage in AEA or not.
Discussion
This judgment is the first to specifically consider the issue of AEA and the relevant information when assessing a person’s capacity in this area in the Court of Protection.
This case is not intended to open a floodgate for assessments in respect of other solitary sexual acts and His Lordship accepted the submissions of the parties that this case dealt with issues that engaged “the most private and personal of AA’s Article 8 rights and that the State should be very slow and cautious to interfere with the same.” [45] The court was required to determine the issue at the heart of this case due to the serious risk of harm that was involved and this judgment identifies the test to be used in cases involving AEA going forward.
If you would like to speak to someone about the issues raised in this case, contact one of the members of our Court of Protection team on 0113 4830188 or email enquiries@mjc-law.co.uk