A Local Authority v AW [2020] EWCOP 24

This matter revolved around the assessment of AW’s capacity to make decisions relating to his residence and care.

AW is a 35-year-old man and suffers from learning disabilities and an autistic spectrum disorder. AW is someone who, whilst on the surface can appear able and capable, but as a result of his autism he is socially vulnerable. AW has been living in a residential care placement for adults with learning disabilities for about 7 years.

AW has pursued gay relationships and has been a heavy user of websites, chat rooms, dating apps and other social media to progress this pursuit. AW had a history of placing himself in high risk scenarios with people he had met through such means. The risk has been to the detriment of AW, where he could be taken advantage of, and of the people he meets when the relationship does not progress the way AW wishes and AW resorts to verbal and violent outbursts.

At a previous hearing it was considered and decided that AW did not have capacity to make the following decisions:

  • Conduct litigation proceedings;
  • His contact with others;
  • To use social media and the internet; and
  • Disclosure of personal information to others.

Whilst he was found to have capacity to consent to sexual relationships, it was acknowledged that there was an anomaly in that AW had been found to have capacity to embark on sexual relations, whilst unable to judge with whom it is safe to have those relations.

AW had recently been fixated on a man who lived in a separate residential placement. Whilst AW’s fixation continued, he requested to be moved to that new residential placement to allow AW to progress the relationship. Whether AW had capacity in respect of where he resides and the care provided was the main issue to be considered.

Due consideration was given to the expert evidence obtained. It was noted that AW’s capacity and understanding fluctuated as to the level of fixation on pursuing a relationship with an individual.

Ultimately, it was held that, even if AW’s capacity fluctuated, AW fundamentally lacked the capacity to understand the impact of moving residence or changes to his care plan. However, it was noted that particular care should be taken to permit and encourage AW to participate when he was engaged and not distracted by any of his obsession aspects of his personality.

(A side note of interest is that this hearing was conducted via Skype for Business. The Judge noted that the hearing was listed to be in ‘Open Court’ and checks were undertaken to ensure that any interested party who wished to attend would be able to. Furthermore, the electronic hearing was recorded.)

The full judgement can be read here

If you have any questions regarding this summary case law please contact Kris Kilsby here

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