ZX (Capacity to Engage in Sexual Relations)

Factual and Procedural Background

The appellant, represented by his litigation friend the Official Solicitor, appeals a decision by a judge in the Court of Protection that he lacks capacity to engage in sexual relations. The appellant, born in 2006, and his older brother were subject to care proceedings shortly after birth due to concerns about their parents' mental health, substance abuse, neglect, and injuries. Both boys were adopted in 2007. The appellant was diagnosed with ADHD at age 5 and later exhibited harmful and violent sexual behaviours, resulting in placement in a specialised residential unit under local authority care.

Over the years, the appellant engaged in sexual behaviour with others in the placement, including allegations of rape and sexual assault. Despite extensive therapeutic support and restrictions, he continued to display concerning sexual conduct. The local authority applied to the Court of Protection in 2024 for declarations that the appellant lacked capacity in multiple domains, including sexual relations, and for authorisation of continued deprivation of liberty. The appellant was assessed by a consultant psychiatrist, Dr Ince, who initially concluded capacity to engage in sexual relations but later revised this opinion following further legal developments.

The Court of Protection judge conducted a hearing and concluded the appellant lacked capacity to engage in sexual relations, making declarations and interim orders accordingly. The Official Solicitor sought permission to appeal this decision, which was granted, leading to this appeal hearing.

Legal Issues Presented

1. Whether the judge applied the correct legal test under the Mental Capacity Act 2005 (MCA) when determining the appellant's capacity to engage in sexual relations.
2. Whether the judge was correct to find that the appellant lacks capacity to consent to sexual relations due to an inability to use or weigh information "in the moment".
3. Whether the judge improperly considered wider public protection concerns and the absence of mental health or criminal justice interventions when assessing capacity.

Arguments of the Parties

Appellant's Arguments

• The judge applied the wrong legal test by requiring only a "connection" rather than a clear causative nexus between the appellant's inability to make decisions and his mental impairment.
• The evidence was insufficient to establish that the appellant was unable to weigh the need for consent, as opposed to choosing to disregard it; Dr Ince failed to ask about decision-making "in the moment".
• The judge wrongly relied on the appellant's history of non-consensual sexual behaviour as evidence of incapacity.
• The judge rejected impulsivity as a factor linking the appellant's impairment to incapacity but still concluded incapacity without sufficient evidential basis for other cognitive deficits causing incapacity.
• The judge and expert misunderstood the effect of the case Re ZZ, wrongly raising the threshold for capacity.
• The judge improperly allowed public protection concerns to influence the capacity assessment, effectively substituting welfare considerations for legal capacity determinations.

Respondent's Arguments

• The judge's use of the term "connection" does not indicate an incorrect legal test; the judge properly framed the causative nexus requirement in his conclusions.
• It is appropriate, and necessary, for the court to consider the wider factual context beyond clinical assessment when determining capacity, including behavioural history.
• The judge was entitled to rely on the wider context, including the appellant's history of sexually offensive behaviour, in the absence of direct evidence about "in the moment" decision-making.
• The appellant's neurodevelopmental disorder manifests as a range of symptoms beyond impulsivity, supporting the judge's conclusion that capacity is lacking.
• The judge was entitled to proceed without a further assessment given the expert's view that no new evidence would likely emerge from another interview.
• The judge did not allow public protection concerns to improperly influence the capacity decision and remained mindful that the Court of Protection is not a court of public protection.

Table of Precedents Cited

Court's Reasoning and Analysis

The court analysed the appellant’s capacity under the Mental Capacity Act 2005, applying the Supreme Court’s framework from A Local Authority v JB. The judge found the appellant understands the relevant information about sexual relations but concluded that due to his mental disorders, particularly ADHD and conduct disorder, he was impulsive and unable to use or weigh that information "in the moment" during sexual activity, especially regarding consent withdrawal.

The judge rejected the expert’s view that impulsivity was absent, describing the appellant as cunning and capable of planning, but nonetheless found incapacity based on the appellant’s behaviour and mental disorder combined. The judge acknowledged the difficulty and speculative nature of assessing capacity in the absence of direct evidence of decision-making during sexual encounters, relying instead on historical behaviour and expert opinion.

On appeal, the court found that the judge applied an incorrect legal test by requiring only a "connection" rather than a clear causative nexus between incapacity and mental impairment, as mandated by s.2(1) MCA and JB. The expert’s revision of opinion after reading Re ZZ was based on a misinterpretation that this case changed the law, undermining the reliability of his assessment.

The court held that the judge improperly based his conclusion on the appellant’s history of non-consensual sexual behaviour without sufficient evidence that this reflected incapacity rather than a choice to offend. Furthermore, the judge failed to adequately explain how the appellant’s cognitive deficits other than impulsivity caused incapacity, especially after rejecting impulsivity as a factor.

The court rejected the appellant’s argument that public protection concerns improperly influenced the capacity assessment, finding the judge was careful to distinguish capacity from welfare and public protection issues, consistent with the Supreme Court’s guidance.

Overall, the court determined the capacity assessment process was flawed due to the erroneous legal test, misapplication of expert evidence, and insufficient analysis of causative nexus, necessitating a fresh assessment.

Holding and Implications

The appeal is ALLOWED on grounds 1 and 2, and the declaration that the appellant lacks capacity to engage in sexual relations is SET ASIDE.

An interim declaration to that effect will be made pending a fresh psychiatric or psychological assessment conducted in accordance with the correct legal principles established in A Local Authority v JB and related case law. The fresh assessment should address whether the appellant can use information about consent "in the moment" during sexual activity.

The case is to be remitted to the lower court for further case management, including determining the terms of the capacity assessment and appointing an appropriate expert. No new precedent is established by this decision; it reaffirms the established legal framework and underscores the need for rigorous application of the correct legal test and careful expert evaluation in capacity assessments under the MCA.