A Local Authority v AW [2020] EWCOP 24

Application brought by the Local Authority seeking declarations and orders to enable safeguarding of AW, a 35-year old man living in residential care placement but where there are concerns about his capacity to decide on sexual relationships and other matters.

As Cobb J states at the start, the judgment creates no new principles but

“sets out my reasoning in reaching conclusions in a case which has the characteristics of many which come before the Court of Protection: namely, where the subject of the application is believed to have capacity in making decisions in relation to certain aspects of their life, but not in others; where there are, in such cases, inevitably 'grey areas' in between.”

In a previous hearing Cobb J had already concluded that AW lacked capacity to conduct proceedings; make decisions about his contact with others; use social medial and the internet; make decisions about disclosure of personal information to others; but has capacity to consent to sexual relations.

He adjourned determination of the more contentious issues of whether AW lacked capacity to make decisions about where he lived and his care and support arrangements. He was also invited consider how the restrictions on AW's use of the internet and social media should be managed, and the support required to allow AW to develop sexual relationships.

In this judgment, he reviews the expert and other evidence, in particular a report by the jointly-appointed expert Dr Rippon. He highlights her conclusion that AW’s ability to understand information about the decisions required fluctuated but that on all points of that spectrum he lacked the “level of capacity to understand, use or weigh that information”.

In his concluding paragraphs [from 41] Cobb J agrees that AW lacks capacity and that it is not fluctuating: instead there “ is a basic and profound lack of understanding”. He also accepts that the care and support package put forward does represent a deprivation of liberty but one that is proportionate and in AW’s best interests.

Read the full judgment on Bailii