Did P have capacity to make decisions surrounding his residence, care, sexual relations and access to social media given his diagnosis?

The case of DY & A council & A NHS Trust [2022] EWCOP 51 concerned whether DY had capacity to make decisions surrounding his care and support arrangements, given the threat posed by his sexual behaviour to the public. The application also dealt with the upcoming expiry of the standard DOLS authorisation in place for DY.


Shortly after DY was born, he was the subject of care proceedings and has been throughout most of his life. As a result, a Care Order was granted on the basis that he would return home to live with his parents. At the age of 10 years old, DY began demonstrating sexualised behaviour and was self-harming. As a result of having a stoma bag fitted when DY was a teenager, he suffered from ill health.

In DY’s mid-teens, he suffered from serious mental health issues which included exacerbated self-harming and more frequent suicide attempts. In 2011, DY was diagnosed with Autistic Spectrum Disorder and Generalised Anxiety Disorder and Paedophilia. As a result, in 2016, DY was detained under Section 3 of the Mental Health Act and this meant that he was placed at a hospital unit. A year after, in 2017, it was determined that DY lacked capacity to consent to his detention and treatment under the Mental Capacity Act. Also, in 2017, DY pleased guilty to two offences of sexual assault of a girl aged under 13. As a consequence, he received a 26-month Youth Rehabilitation Order, was placed on the Sex Offenders Register and was prohibited from having contact with children under 16. He was also determined to pose a risk to his mother.

In 2019, he moved to his current placement and was still deemed as lacking capacity to make decisions about accommodation and care. Several provisions were put in place due to his sexualised behaviour.


On 25 May 2021, in line with Section 21 of the Mental Capacity Act 2005, proceedings were issued that challenged DY’s deprivation of liberty at his placement. The grounds of the challenge were that the mental capacity qualifying requirement in paragraph 15 Schedule A1 and the best interests requirement in paragraph 16 Schedule A1 were not met.

Dr Christopher Ince, who was a Consultant Psychiatrist currently working in Forensic Learning Disability and Autism Services at Northgate Hospital in Northumberland, was instructed to prepare a detailed report on the DY’s capacity to take part in the proceedings and whether he had capacity to make decisions regarding his residence, care, contact, sexual relations and access to social media. The report was produced on 14 April 2022. He concluded that DY had capacity in relation to all the domains set out.

Discussions and conclusions

The Judge decided that DY had capacity to make decisions as to his care and support. He stated that “In arguing otherwise, it seems to me that the respondents are setting the bar of capacity at too high a level”.

The Judge deemed that DY understood the risks he posed and he expressed his fear of what would happen to him if another offence was committed. The Judge expressed that he understood why the parties were concerned, but that any further offending by DY was a matter to be dealt with under the criminal justice system.


The standard authorisation was terminated in accordance with paragraphs 15 and 16 of Schedule A1 Mental Capacity Act which meant that DY would no longer be subject to a Deprivation of Liberty Authorisation.

DY would continue to be offered the same care package which included help with his daily living and medication, and he was strongly encouraged to continue to be accompanied by at least one care worker whenever he went out.

DY remained on the sex offenders register and was offered the psychological help and therapy that he so clearly needed as a matter of urgency, for his own benefit and of course the protection of the public.

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