Capacity, crime and liberty

A high-risk sex offender with complex needs argued he should not be deprived of liberty to protect others as he understood his risks and their consequences, report Belinda Schwehr and Emman Kaur

Chainlink fence

In a recent court of protection case, a judge ruled that a man with a history of sexual offending would no longer be managed by being deprived of his liberty.

Deprivation of liberty – a loss of freedom and being under constant supervision or control – is sometimes required to meet needs. It must be authorised under the Mental Capacity Act 2005.

The man challenged this authorisation on the grounds that he had capacity and also that, even if he did not, the best interests requirement was not met.
The court upheld his first argument, agreeing that he did have capacity to decide on his care and support. This meant he could no longer be deprived of his liberty.

The case (DY v A City Council and A NHS Trust) balanced the man’s desire for greater autonomy and independence with the public’s perception of a need for oversight and protection.

Mrs Justice Judd explored the issue of whether DY, a man in his 20s who had autism and complex needs and was living in a care home, had the capacity to make decisions about his care and support arrangements.

The judge said he was no different from many people who have capacity and ‘can make unwise decisions and act on impulse’.

The background to the case is that DY had demonstrated problems from a young age, including sexualised behaviour and self-harming, which worsened in his mid-teens. In 2016, he was sectioned under the Mental Health Act.

In 2017, DY pleaded guilty to two offences of sexual assault in relation to a girl aged under 13 years and received a 26-month youth rehabilitation order. He had been assessed as a category one (high risk) offender.

His diagnoses include autistic spectrum disorder, generalised anxiety disorder and paedophilia.

He was under a deprivation of liberty safeguards (DoLS) authorisation in the care home (DoLs are safeguards designed to ensure people are looked after in a way that does not inappropriately restrict their freedom).

A sexual harm prevention order (SHPO) prohibited him from having contact with children under 16, save what was not reasonably avoidable. Whenever DY was out in the community, he was accompanied by male staff and was checked four times a night due to his sexualised behaviour and self-harm risk.

DY argued that the purpose of this DoLS authorisation and the underlying care plan was public protection so it could not be allowed. However, the judge concluded that the primary purpose of the care plan was to prevent harm to DY himself so it was not unlawful on that account.

Mrs Justice Judd also cited a previous case (Birmingham City Council v SR; Lancashire County Council v JTA [2019]), where the court had heard it was a false dichotomy to conclude that the concept of the protection of the person with impaired capacity could not also include protecting him or her from the consequences of harming members of the public.

If he lacked capacity, therefore, the care plan and DoLS would have been lawful.

Aware and fit to stand trial

The judge went on to agree with DY’s incapacity challenge, basing her analysis on the “clear, cogent and firm” evidence of the expert, consultant psychiatrist Christopher Ince.

Ince’s position was that DY did have an understanding of his offending, his victim profile and consequences of offending. There was no suggestion, said Ince, that DY would be unfit to plead in a criminal trial.

A significant risk to the public and a person from reoffending cannot be the determining factor in the question of capacity.

He concluded that DY’s understanding was relatively sophisticated, consistent with his cognitive functioning, and that it was not mere repetition.

The respondents to DY’s challenge – the city council and the NHS – asserted that DY was not capable of using or weighing information as part of the process of making a decision.

Evidence suggested he was inclined to say things that he thought the person in front of him wanted to hear, for example stating he knew he needed support. He would then say he had learned ways to cope over the years and wanted to live without restriction, but would follow this up by remarking he knew it was the staff who kept him safe.

DY said with the DoLS removed “it would mean I am able to meet people in the community… make friends… maybe have a relationship with a woman… my ultimate goal is to live my life peacefully… I don’t know about making relationships… I’ve never made any friends in the community for the last 10 years… wouldn’t know how to do it… I’m a bit rusty… obviously you’ll meet them and taken them to a restaurant, maybe have a drink or a meal… discuss hobbies and interests”.

DY stated: “I know I am high risk but there has to be a point where things change… constantly having staff coming out with you… I know how to be civil with people in the community… I know if I broke the SHPO I’d go to prison…one-way ticket to prison… I know I’d have to register my address if I moved house… I’d be terrified about going to prison… people with my convictions in prison, they get killed or severely beaten up.”

The judge appreciated that there was a high risk of DY acting impulsively and reoffending if given the opportunity. However, she agreed with Ince that this risk was a matter for the criminal justice system, not something to be addressed through a deprivation of liberty authorisation.

She said that DY was no different from many people who have capacity and “can make unwise decisions and act on impulse”.

The judge added: “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.”

The DoLS was terminated. However, DY had to remain in the care home and be offered support to make wise decisions, without compulsion, before the expiration of the SPHO later this year.

He will remain on the sex offenders’ register.

Comment: test for capacity regarding wrongdoing is set low

This case tackled the thorny issue of whether deprivation of liberty can be used to protect members of the public and how this is intertwined with an individual’s best interests.

On the one hand, the judge accepted DY could potentially make unwise decisions and act on impulse.

This could result in him committing sexual offences and self-harming. On the other, she accepted that he was an individual with capacity.

This case makes it clear the test for capacity regarding wrongdoing and its consequences is set low.

The criminal justice system is responsible for outcomes for offenders, including those with only a basic understanding of right and wrong.

The significant risk to the public and the person from reoffending – because of him acting impulsively without supervision under a Deprivation of Liberty Safeguards (DoLS) authorisation – cannot be the determining factor in the question of capacity.

The forthcoming Liberty Protection Safeguards (LPS), introduced in the Mental Capacity (Amendment) Act 2019, will replace the DoLS.

These have been designed to put the rights and wishes of those affected at the centre of all decision-making on deprivation of liberty.

Since the LPS cannot be used where the primary purpose is to protect others from the risk of harm from a individual, they can only be used to achieve public protection when this is incidental – as happened in the case here.

However, as with DoLS, the LPS will allow for examination of unforeseen and unconsidered effects on the individual concerned arising from his or her actions towards others.

Emman Kaur is a volunteer writer at CASCAIDr

Cases: DY v A City Council & Anor [2022] EWCOP 51.
Birmingham City Council v SR; Lancashire County Council v JTA [2019] EWCOP 28.