Hull City Council v KF – Court Of Protection Capacity To Decide On Contact With Others

In all cases, the Court of Protection is required to rule on a person’s capacity in respect of many issues, including a protected party’s capacity in relation to specific health and welfare matters. Determining a protected party’s capacity is fundamental as the Court of Protection’s jurisdiction falls away should the person be found to have the requisite capacity. If a protected party is found to lack capacity in relation to the question in issue, the Court of Protection will be required to make a best interests decision on their behalf, taking into account all evidence available before them.

Hull City Council v KF [2022] EWCOP 33

Case background

The recent case of Hull City Council v KF was concerned with a protected party’s (KF) application for a declaration that she could decide to enter into sexual relations with her long-term partner, KW, and have unsupervised contact with him. KF was classed as vulnerable due to her learning difficulties.

The Court of Protection made initial interim declarations confirming that KF retained the capacity to enter into sexual relations. However, KF did not have sufficient capacity to decide whom she could have contact with which prevented unsupervised contact with KW. Whilst KF was able to express whom she wanted to have contact with and the benefits of this, KF failed to acknowledge the risks in that she was previously abused, physically, emotionally, and financially, by KW.

In further considering KF’s capacity to enter into sexual relations, Dr Mynors-Wallis produced an opinion that KF did have the capacity and referred to the test set out in A Local Authority v JB, requiring a protected party to understand the below:

The more concerning conclusion of Dr Mynors-Wallis’s report was KF’s lack of capacity in relation to contact with others, more specifically KW. KF was keen to have unsupervised contact with KW and the concerns arose around KW previously assaulting her and having been charged with GBH as a result, and the fact that he was due to be sentenced shortly. The Court relied on evidence from KF’s litigation friend and KF was able to express why she wanted contact with KW and the benefits of this, whilst also appreciating the nature of the contact and the necessary arrangements to ensure KW’s residence safe environment.

Decision

The Judge in applying the above in respect of KF’s contact with KW stated capacity must be assessed specifically in relation to KW. The Judge commented that despite the above, KF was unable to appreciate the risk that KW may assault her again, which appeared to be a very real risk. Although KF had the capacity to enter into sexual relations this would not extend to being with KW, given the history and inherent risks that carried. Given KF’s inability to weigh up the risks associated with KW, the Judge concluded that KF did not have the capacity to enter into sexual relations with KW or have unsupervised contact with him. The Judge confirmed this would not be a case of KW knowingly making an unwise decision as KW was unable to consider and weigh up the risks.

The Judge then turned to make a best interests decision allowing only supervised contact with KW moving forward. The Judge took particular caution in reaching this decision due to the sensitivity of this case. The background to this case meant it was unlikely there was enough time for any decision to change as it was expected KW would soon be imprisoned and on his release, KF may have passed due to her terminal cancer.