A convicted child sex offender who “poses a risk” has the mental capacity to make decisions about his care and support, a judge has decided after a hearing in a specialist court.
Mrs Justice Judd was told that the man, who is in his 20s and has “complex needs”, had been detained under the terms of Mental Health Act and placed at a hospital unit in 2016.
The judge heard how in 2017, he had been “determined” to lack the mental capacity to consent to his detention and treatment – under the terms of the Mental Capacity Act.
He had subsequently moved to a specialist unit where staff worked with “young people with sexually problematic behaviours”.
As of June 2021, he was still considered a high risk to children. To children he poses a risk of sexual assault— Mrs Justice Judd
The judge said the man posed a “risk” to children.
But she has decided that he no longer needs to be the subject of a “deprivation of liberty authorisation” and said “any further offending” is a “matter for the criminal justice system”.
The judge said her decision meant that the man would no longer be “compelled to accept” a care package offered by specialists.
Mrs Justice Judd has outlined her conclusions in a ruling published online after considering evidence at a public hearing in the Court of Protection, where judges make rulings about people who might not have the mental capacity to take decisions for themselves, in London.
The judge, who is based at the Royal Courts of Justice in London and also oversees hearings in the Family Division of the High Court, has ruled that neither the man, nor a council or NHS trust involved in his care, can be identified in media reports of the case.
She has given no indication where he lives.
Lawyers representing the man had asked the judge for a ruling and argued that he had “capacity”.
A council and NHS trust argued that he did not – and were “concerned”.
In 2017, the man had admitted “two offences of sexual assault of a girl aged under 13” and been given a 26-month Youth Rehabilitation Order, Mrs Justice Judd heard.
He had been placed on the sex offender register for five years and was “prohibited from having contact with children under 16 save as is inadvertent and not reasonably avoidable in the course of daily life”, she was told.
She has given no indication where he lives.
Lawyers representing the man had asked the judge for a ruling and argued that he had “capacity”.
A council and NHS trust argued that he did not – and were “concerned”.
In 2017, the man had admitted “two offences of sexual assault of a girl aged under 13” and been given a 26-month Youth Rehabilitation Order, Mrs Justice Judd heard.
He had been placed on the sex offender register for five years and was “prohibited from having contact with children under 16 save as is inadvertent and not reasonably avoidable in the course of daily life”, she was told.
“As of June 2021, he was still considered a high risk to children,” the judge said. “To children he poses a risk of sexual assault.”
Mrs Justice Judd heard evidence from consultant psychiatrist Dr Christopher Ince – who had been “jointly” asked to prepare a report about the man by lawyers on both sides.
Dr Ince had considered whether the man had the mental capacity to “conduct the proceedings and to make decisions on his residence, care, contact, sexual relations and access to social media”.
He had concluded that the man “had capacity in relation to all the domains set out”, the judge said.
The council and NHS trust involved had “conceded” that he had the mental capacity in relation to “conducting these proceedings, contact, sexual relations and social media”.
Mrs Justice Judd said the issue she had to decide was whether he had the mental capacity to consent to his care and support arrangements.
“I have come to the conclusion on the balance of probability that (he) has capacity to make decisions as to his care and support,” Mrs Justice Judd said.
The truth is that most sexual offenders and risky adults have capacity, and, like (the man) are not to be managed by a deprivation of liberty within the provisions of the Mental Capacity Act— Mrs Justice Judd
“I entirely appreciate why the (the council and NHS trust) are so concerned, because there is a high risk that (the man) will reoffend if he is given the opportunity to do so.
“If he is allowed to make decisions for himself, he could go out alone, and in doing so he could put others and himself at risk by acting impulsively and committing a sexual assault.
“Those responsible for his care are undoubtedly very worried about the effect upon him (and of course others too) were he to do this.
“Anyone responsible would be concerned about this, as I am myself.”
But, she said, “any further offending” was a “matter for the criminal justice system”.
She added: “The truth is that most sexual offenders and risky adults have capacity, and, like (the man) are not to be managed by a deprivation of liberty within the provisions of the Mental Capacity Act.”
Mrs Justice Judd said the man would continue to be offered the same care package he now had – and would be “strongly encouraged” to continue to be “accompanied by at least one care worker” whenever he went out.
She added: “What this decision changes are that (he) will no longer be compelled to accept what is on offer, but I sincerely hope that he does.”
