DY & A council & A NHS Trust [2022] EWCOP 51

Application to determine whether DY has capacity to decide on his care and support arrangements in circumstances where his sexual behaviour may pose a threat to the public and current authorisation for deprivation of liberty is due to expire .​

DY, who has a diagnosis of ASD, has been in care proceedings most of his life and over that time his sexualised behaviour had resulted in him pleading guilty to two sexual offences and being placed on the sex offender register. Now in his 20’s, he is currently prohibited from having contact with children under 16 and at his placement is always accompanied by male staff when he goes into the community and is checked four times a night due to his sexualised behaviour and self harm. Shortly before this hearing, the respondents conceded that DY has capacity to conduct of proceedings and to decide on contact, sexual relations and social media use, leaving the court to decide whether he had capacity to decide on his care. 

HHJ Judd reviews the report of the expert witness who following interviews with DY concluded that DY was honest about the risk he posed and that “perhaps most importantly, he was able to set out a level of care that he believed would be both sufficient, beneficial and would balance his own wishes for a greater degree of autonomy and independence with an umbrella of oversight and protection.” Accordingly, while acknowledging the concerns of the respondents, she terminates the Standard Authorisation and states [35]: 

“The truth is that most sexual offenders and risky adults have capacity, and, like DY are not to be managed by a Deprivation of Liberty within the provisions of the Mental Capacity Act 2005.”

Read the judgment on the National Archives.