England and Wales Court of Appeal (Civil Division) Decisions
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IM v LM & Ors  EWCA Civ 37 (23 January 2014)
 COPLR 246,
 FAM 61,
 3 All ER 491,
 1 Fam 61,
(2014) 17 CCL Rep 39,
 WLR(D) 31,
 2 FCR 13,
 EWCA Civ 37,
 1 FAM 61,
 Med LR 345,
17 CCL Rep 39,
 3 WLR 409
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[View ICLR summary:  WLR(D) 31]
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[Buy ICLR report:  1 Fam 61]
||Neutral Citation Number:  EWCA Civ 37
||Case No: B6/2013/0318
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE COURT OF PROTECTION
Mr Justice Peter Jackson
||Royal Courts of Justice
Strand, London, WC2A 2LL
||23rd January 2014
B e f o r e :
THE PRESIDENT OF THE QUEEN'S BENCH DIVISION
(SIR BRIAN LEVESON)
LORD JUSTICE TOMLINSON
LORD JUSTICE McFARLANE
||- and -
||(1) LM (by her Litigation Friend, the Official Solicitor)
(3) LIVERPOOL CITY COUNCIL
(Transcript of the Handed Down Judgment of
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Richard Gordon Q.C. and Matthew Stockwell (instructed by Peter Edwards Law, Liverpool) for the Appellant
Jenni Richards Q.C. and Jonathan Butler (instructed by Hogans Solicitors, Rainhill, Liverpool)for LM
Adam Fullwood (instructed by Quality Solicitors, Jackson & Canter, Liverpool) for AB
James Gatenby (instructed by the City Solicitor, Liverpool) for Liverpool City Council
HTML VERSION OF JUDGMENT
Crown Copyright ©
Sir Brian Leveson:
- When is it appropriate for society to intervene paternalistically in a decision or decisions that individuals make as to their sexual relations? At different levels, the question can be approached medically, sociologically and philosophically: the answers will not necessarily be the same. Seeking to identify the balance that our society, expressed through Parliament, has mandated, the Mental Capacity Act 2005 brings the issue to the court for it to undertake the exercise of judgment, based on the criteria that the legislation has set out. The significance of this decision should not be underestimated: if, in any case, there is a declaration of lack of capacity, the relevant local authority must undertake the very closest supervision of that individual to ensure, to such extent as is possible, that the opportunity for sexual relations is removed.
- When granting leave to appeal in this case, McFarlane LJ identified what he described as an apparent conflict of judicial opinion at first instance on the issue of capacity to consent to sexual relations. In such a difficult area, it is particularly important that the legal framework should be clear and readily understandable by all those called upon either to make decisions or to advise. Each individual decision, however, is ultimately dependant upon a factual background which will never be identical to any other. In the circumstances, to provide context, we shall outline the facts of this appeal, before analysing the legal position both in general and then specifically in the context of this case. This is a judgment of the court to which each member has made a substantial contribution.
- LM was born in October 1972. Her life, at least as an adult, has been chaotic with an extensive history of drug and alcohol abuse; she has convictions for offences related to prostitution. All three of her children (by a former abusive partner) have, at some time, been raised by her mother IM, the oldest child is now an adult, the second is presently living with one of LM's siblings and the youngest, now aged 11, is still with IM.
- Having been diagnosed with liver disease, in July 2010, LM was admitted to hospital, vomiting blood from the upper gastrointestinal tract as a result of excessive alcohol misuse. On or about 16 July, she underwent surgery during the course of which she suffered a cardiac arrest leading to an hypoxic brain injury, causing significant amnesia with moments of lucid thought. Her memory loss causes her confusion and distress. In September 2010, she was placed in a specialist unit for the purposes of extensive rehabilitation and in the period since, on occasions, she has been calm. She has, however, also displayed frustration and agitation, accompanied by physical and verbal aggression to staff and other service users. By January 2013 she was reported as having made good progress.
- Proceedings before the Court of Protection were commenced by AB, with whom LM had had a relationship (including a sexual relationship) such that they had been living together for a number of years. He had also had a troubled background (including what is described as having a significant criminal record) and, for what was described as inappropriate behaviour, had been barred from the hospital in which LM was being treated; thereafter, his contact with LM had been restricted. The proceedings were a challenge to the legality of these restrictions. In particular, contact with LM and, indeed, knowledge of her whereabouts had been withheld. Although the source of various allegations against AB was IM, neither she nor the local authority listed a schedule of allegations or made a statement in support of them, notwithstanding requests so to do by the Official Solicitor, acting for LM.
- The principal issues during these proceedings were, therefore, the placement of LM and contact arrangements between her and AB. In the event, by the hearing in 22 January 2013 (which is the subject of appeal), unchallenged declarations were made that LM lacked capacity to make decisions concerning residence, care and contact with others. It was also declared, without challenge, that it was in LM's best interests:
"3) To reside at [identified residential accommodation] and to receive the care currently being provided by the Brain Injury Rehabilitation Trust and funded by LPCT.
4) For LM to have contact with AB, to include letters, under the supervision of Dr P [the responsible clinical neuropsychologist] whilst she resides at [the residential accommodation] with a trial of more relaxed contact expected to take place.
5) Both before and following the anticipated move to supported living, LM's contact with AB shall be subject to LCC's [ie the local authority's] safeguarding and best interests assessments. For the avoidance of doubt there is an expectation that a reduction in the present restrictions on contact should at least be trialled.
6) To move to independent supported living in or around 12 months time and to receive the care and support identified in the Support Plan completed by LCC (or such other relevant authority as may be the case).
7) For LM' s immediate family and AB to be consulted as part of the planning process in relation to her future accommodation, care and contact arrangements.
8) If appropriate, for LCC or its nominated officer to enter into and sign any tenancy agreement on LM's behalf for the purposes of facilitating or maintaining her independent supported living."
- For the purposes of resolving issues relating to residence, contact, medical treatment, property and affairs and litigation, Dr G, a consultant psychiatrist had been asked by the court to prepare a report. She noted (in her report of 8 October 2012) that LM wished to re-establish a sexual relationship with AB and expressed the belief that "unsupervised contact with AB may trigger sexualised behaviour". It was only then that the capacity to consent to sexual relations arose.
- Dr P (LM's clinical neuropsychologist) addressed the issue in a statement dated 16 November 2012. Having concluded that LM understands the nature and character of the act of sexual intercourse (that knowledge not having been lost following brain injury) her need for gynaecological treatment due to poor health before the cardiac arrest had itself given rise to questions about her ability reasonably to foresee the consequences of various activities; he left the issue to the court, making the point that if she is deemed vulnerable, the question was not the act (of sexual intercourse) but "the relationship of the two parties engaging in the act". His concern was LM's ability not to "feel coerced or pressured or manipulated into sexual activity and of the trust placed with AB not to abuse his position".
- In a supplementary report dated 1 December 2012, Dr G specifically addressed the issue of sexual relations as "an issue specific test; not person (partner) situational specific test except where external cues are an integral part of her assessment". She went on:
"With prompting, LM is able to describe the mechanics of the sexual act and when asked directly, is able to say that heterosexual intercourse can give rise to pregnancy and is aware of the risks of sexually transmitted infections. This is in keeping with a relative preservation of pre-morbid memories and is indicative of the fact that she can understand and retain the relevant information. However, she was not able to weigh up the risks to herself of a further pregnancy or the potential risks to any children. Specifically, she could identify no difficulties that she may have if she became pregnant saying that she already had 3 children and that they were 'OK'. … She could see no areas of concern that others may have about her looking after children. LM was therefore unable to understand the foreseeable, possibly inevitable consequences, of pregnancy.
She would not engage in a discussion about sexually transmitted disease which, I believe, based on her behaviour when faced with other questions she could not answer, was a way of not having to consider questions that she found difficult. Based on her need for others to monitor her general physical health, although LM can identify that a sexually transmitted infection may arise from a sexual relationship, I do not believe that she would be able to take appropriate action relating to any gynaecological symptoms, partly due to apathy and lack of initiation arising from her brain injury and partly to a lack of general awareness of her own state of health.
As LM is unable to weigh up the pertinent information in a clinical interview, she is even less likely to be able to weigh up the information in a non-clinical setting. This latter opinion is based on the likelihood that she will respond to environmental cues. If she returns to using alcohol or drugs her ability to consider pertinent information will be further reduced.
Engaging with LM in an assessment of capacity was difficult and, on advice from … an integral member of her care team who has known LM since admission to RC, assessment was kept as brief as possible. Being of the opinion that LM lacks capacity to consent to a sexual relationship on the basis that she cannot weigh up information about the risks of pregnancy and sexually transmitted disease, no further assessment of her understanding of her right to say no was attempted.
As I am of the opinion that LM does not have the capacity to consent to a sexual relationship, I have not considered the matter of contraception."
- The report from Dr G influenced the local authority's plans for LM and led to its opposition to unsupervised contact (on the basis that such contact might lead to sexual intercourse between them). A further report from Dr G (dated 15 January 2013) put the matter in this way:
"LM was not able to weigh up the advantages and disadvantages of becoming pregnant, specifically as she was unable to recognise that pregnancy may result in health risks to herself, potentially the foetus and that the foreseeable outcome of the pregnancy - i.e. a baby, which she may or may not have contact with."
- In her skeleton argument for the purposes of this appeal, Miss Jenni Richards Q.C. for the Official Solicitor on behalf of LM put it this way:
"Thus, the deficit in [Dr G's] view was an inability to recognise that pregnancy may result in health risks to LM (no specific risks were identified), or "potential" health risks to the foetus (no specific risks were identified) or the risk of a removal of a child at birth, with which hypothetical child LM may or may not have had contact during its life. [Dr G] asserted that LM would not be able to understand, retain and weigh up "information surrounding sexually transmitted diseases", but did not identify the nature and extent of the information that she considered to be relevant."
- On 22 January 2013, for the fourth time, this matter came before Peter Jackson J. The Official Solicitor for LM argued that the approach of Dr G to the question of consent to sexual relations was wrong in law and (together with the local authority) invited the judge to resolve the issue. The appellant IM, along with AB, sought an adjournment on a number of bases, firstly it was suggested that it was necessary to clarify Dr G's opinion; secondly information circulated that day at court indicated fresh concern about LM's health which might require investigation. There was also some question about whether the court was only expected to provide directions on this issue (although the matter had been listed for a full day). In the event, Jackson J decided to hear whatever evidence the parties wished to adduce (including from IM) and submissions. Dr G was not able to attend (although no application was made to adjourn for that reason); Dr P gave evidence by telephone. Although the grounds of appeal criticise the decision of the judge to proceed, based on the available evidence and his lengthy involvement with the case, it was, in any event, clearly open to him.
- Amplifying his written evidence, Dr P made it clear that:
"[LM] does understand sexual activity; she does is able to tell you about pregnancy and having babies and those kind of issues so she is aware of that. And also in terms of weighing up a decision, she certainly showed some ability to be able to weigh up whether that would be something that she [inaudible]. So if you start talking her through the thresholds, the test of capacity, you do kind of start to come out with a sense that she does have the capacity to understand issues of a sexual nature."
- When asked whether she had the capacity to understand, that she has a choice and could refuse sex, he said:
"There are two very clear questions there. One is: does she understand sex, the nature and the consequences? Yes, she does. Would she be able to make choices about whether she would choose to engage or not engage in sexual activity? I feel that that becomes then an issue about who is she engaging in sexual activity with and what might their pressures be. So it becomes then very much an issue of almost an environmental issue of who is there, who is making those kind of requests."
- He said that her wishes could be "usurped by an individual"; he did not think that she was always "able to fully manage her own choices" and "may just acquiesce to somebody else's wishes and desires". He agreed that there was no evidence that AB had initiated sexual relations or sought to exercise undue influence and that LM was also mindful "that there were negative consequences that could come from sexual activity".
- Peter Jackson J underlined the depth of feeling on both sides and the concern to keep LM's interests "at the forefront or at least near the forefront". He concluded, as agreed by all, that she was not capable of making decisions about where she should live, about how her care should be provided or about how much time she should spend with others. He said that there should be an expectation that some further relaxation of AB's contact with LM would be attempted so that everybody would be able to decide whether it was going well. To reduce contact would not, in the judge's view, have done justice to the importance of that relationship.
- Peter Jackson J made it clear that he intended to follow the conclusions reached by other judges of the Family Division ("at least four of whom have delivered fully reasoned judgments on the question of what the appropriate test is for a person's capacity to make decisions about sexual relations"). He went on to observe that the burden of proving incapacity rested on those who asserted it and that the threshold for those who wished to establish that a person cannot make a decision because they are overborne by influences from others "must be a high one in relation to an act which is so very hard to rationalise".
- Referring to the advice of Dr P and the contribution of Dr G, the kernel of the judge's decision is expressed in these terms:
"14. I find … that [LM] does possess the abilities required to lead to the conclusion that she has capacity to make decisions about whether or not to have sexual relations. She is somebody who has been [fully] sexually active in the past; she has had children; she understands the rudiments of the sexual act; she has a basic understanding of issues of contraception and the risks of sexually transmitted diseases. The area in which she is weakest is her ability to understand the implications for herself should she become pregnant. Pregnancy for [LM] would be an extremely serious state of affairs; there can be no doubt about that. But her weakness in that respect does not, for me, lead to the conclusion that her capacity is absent; it argues for her to receive continued safeguarding and help, advice and explanation as and when the question of sexual activity might become a reality.
15. In fact, a declaration of incapacity whilst having huge implications for [LM's] individual future would not, to my mind, provide her with very much protection. What will provide her with protection is the fact that she needs continued close support, amounting at times to supervision, in how she goes on with her life. And taking [AB's] position as an example, the opportunity for sexual activity will for at least some time to come be limited. But even so as time has passed, the respect that a person with disabilities such as LM is entitled to must mean that she is given opportunities which may carry with them at least some levels of risk and it seems to me that a declaration that [LM] has the capacity to make decisions for herself about sexual activity, combined with the declarations that I will be making about her residence, care and contact amount to an overall package that is likely to meet the test of time in the same way that the arrangements to which the parties have subscribed over the past year or two have shown themselves to be centred on [LM's] welfare."
- The decision is challenged by LM's mother, IM, on the basis that the judge failed to pose the correct legal test, wrongly purporting to follow the conclusions in the cases to which he had been referred, when Hedley J (in A Local Authority v H  1 FCR 590 at para. 18) had said that four of the six cases were "irreconcilable". It is argued that he made errors of law in that (a) he modified the correct standard of proof (which was simply on the balance of probabilities); (b) erroneously took various irrelevant factors (such as her demonstrated sexualised behaviour prior to and following her brain injury) into account; (c) failed to appreciate that far from the opportunities for AB to have sex with LM being limited, the local authority will be under an obligation to facilitate such activity; (d) failed to recognise that an inability to understand the implications of pregnancy demonstrated a lack of capacity to consent; and (e) failed to have regard to the account of the clinicians that LM was unable to understand the nature of her relationship with others so as to be vulnerable to abuse and, in so doing, failed to explain why he disagreed with their views.
- The Mental Capacity Act 2005 ("the Act") made new provision relating to persons who lack capacity and, by s. 1, sets out the principles to be applied in these terms:
"(2) A person must be assumed to have capacity unless it is established that he lacks capacity.
(3) A person is not to be treated as unable to make a decision unless all practicable steps to help him to do so have been taken without success.
(4) A person is not to be treated as unable to make a decision merely because he makes an unwise decision.
(5) An act done, or decision made, under this Act for or on behalf of a person who lacks capacity must be done, or made, in his best interests.
(6) Before the act is done, or the decision is made, regard must be had to whether the purpose for which it is needed can be as effectively achieved in a way that is less restrictive of the person's rights and freedom of action."
- S. 2(1) of the Act provides "… a person lacks capacity in relation to a matter if at the material time he is unable to make a decision for himself in relation to the matter because of an impairment of, or disturbance in the functioning of, the mind or brain" and s. 3(1) provides what is described as a functional test for capacity in these terms:
"For the purposes of section 2, a person is unable to make a decision for himself if he is unable –
(a) to understand the information relevant to the decision,
(b) to retain that information,
(c) to use or weigh that information as part of the process of making the decision, or
(d) to communicate his decision (whether by talking, using sign language or any other means)."
- It is also appropriate to understand that s. 27(1) of the Act identifies the limits of the powers of the court, where lack of capacity has been established, in a number of areas, dealing in the main with alterations to legal status (but including sexual relations). It provides:
"Nothing in this Act permits a decision on any of the following matters to be made on behalf of a person –
(a) consenting to marriage or a civil partnership,
(b) consenting to have sexual relations,
(c) consenting to a decree of divorce being granted on the basis of two years 1 separation,
(d) consenting to a dissolution order being made in relation to a civil partnership on the basis of two years' separation,
(e) consenting to a child's being placed for adoption by an adoption agency,
(f) consenting to the making of an adoption order,
(g) discharging parental responsibilities in matters not relating to a child's property,
(h) giving a consent under the Human Fertilisation and Embryology Act 1990"
- The Code of Practice issued by the Lord Chancellor and to which judges must have regard (see s. 42(5)(a) of the Act) makes it clear (at para. 4.4) that the assessment of a person's capacity must be based on their ability to make a specific decision at the time it needs to be made, and not their ability to make decisions in general: in the jargon that litters this area of the law, it is 'decision-specific' (see PC & NC v City of York Council  EWCA Civ 478 at paras. 31-35).
- Further, the identification of the "information relevant to the decision" is critical. Although 'information' is not defined by the Act, s. 3(4) provides that it includes information "about the reasonably foreseeable consequences of (a) deciding one way or another, or (b) failing to make the decision" and the Code explains (at 4.16):
"It is important not to assess someone's understanding before they have been given relevant information about a decision. Every effort must be made to provide information in a way that is most appropriate to help the person to understand. Quick or inadequate explanations are not acceptable unless the situation is urgent … Relevant information includes:
• the nature of the decision
• the reason why the decision is needed, and
• the likely effects of deciding one way or another, or making no decision at all."
- Finally, although by no means definitive as a statement of the law, the Code (at para. 4.33) asserts that the Act's new definition of capacity "is in line with existing common law tests" and that the Act does not replace them.
- In the circumstances, it is necessary by way of background to give a brief description of two key authorities which establish the common law approach as it was prior to the Act. These two authorities will surface at various stages as we move forward to describe the developing case law at first instance and in apparently conflicting observations made by Baroness Hale in the context of a criminal case before the House of Lords.
- The two decisions are Re C (Adult: Refusal of Treatment  1 WLR 290, 295 and Re MB (Medical Treatment)  2 FLR 426. In Re C Thorpe J described a three stage decision-making process relating to medical treatment in these words:
'First, comprehending and retaining treatment information, second, believing it and, third, weighing it in the balance to arrive at choice.'
In Re MB, Butler-Sloss LJ, giving the judgment of the Court of Appeal (together with Saville and Ward LJJ) distilled the test to:
"A person lacks capacity if some impairment or disturbance of mental functioning renders the person unable to make a decision whether to consent to or to refuse treatment. That inability to make a decision will occur when:
(a) the patient is unable to comprehend and retain the information which is material to the decision, especially as to the likely consequences of having or not having the treatment in question;
(b) the patient is unable to use the information and weigh it in the balance as part of the process of arriving at the decision."
- Still in the context of describing the pre-Act case law, it is of value to focus in upon the topic of consent to sexual relations by a consideration of a decision prior to the passage of the Act concerned with the capacity to decide to marry. In Sheffield City Council v E  2 WLR 953, Munby J (as he then was) analysed a long line of authority concerned with the capacity to marry and said (at para. 85) that the test was to understand the contract of marriage and not the implications of a particular marriage. He elucidated the question of capacity in this way:
"83. … [T]he question is whether E has capacity to marry, not whether she has capacity to marry X rather than Y, nor whether she has capacity to marry S rather than some other man.
84. It is, moreover, a question quite distinct from the question of whether E is wise to marry; either wise to marry at all, or wise to marry X rather than Y, or wise to marry S."
- The significance of this decision is that, prior to the implementation of the Act, Munby J points to the parallel with marriage when considering capacity to consent to sexual intercourse. In X City Council v MB, NB and MAB  EWHC 168 (Fam),  2 FLR 968, he observed that "generally speaking", capacity to marry must include the capacity to consent to sexual relations. Approving the statement of the common law enunciated by the Supreme Court of Victoria in R v Morgan  VR 337, he said (at para. 74):
"The question is whether the woman (or man) lacks the capacity to understand the nature and character of the act. Crucially, the question is whether she (or he) lacks the capacity to understand the sexual nature of the act. Her knowledge and understanding need not be complete or sophisticated. It is enough that she has sufficient rudimentary knowledge of what the act comprises and of its sexual character to enable her to decide whether to give or withhold consent."
- Munby J went on (at paragraph 89) to record the submission of Ms Ball QC (for the Official Solicitor) that the approach taken to marriage in Sheffield City Council v E should apply equally to consent to sexual relations on the basis that the addition of a sexual element should not add to the complexity of the understanding required, for the ability to choose whether to engage in sexual relations is not one which is beyond that of the person of average intelligence; nor does it require any degree of expert advice or expert participation to aid understanding. Ms Ball submitted that the application of 'the more complicated test in Re MB' would thus be inapposite to the sexual aspect of the test for capacity to marry. Munby J agreed with those submissions, holding that the analysis in Re MB is not irrelevant in the context of sexual relations, but is unlikely to be either necessary or particularly helpful to refer to it.
- In Re MM; Local Authority X v MM & KM  EWHC 2003 (Fam),  1 FLR 443, Munby J returned to the issue when he was concerned with the capacity of a paranoid schizophrenic with a moderate learning disability and a childhood history of emotional deprivation and sexual abuse who, for some 15 years, had been in a relationship (including a sexual relationship) with a man who abused alcohol and had been diagnosed with a psychopathic personality disorder. He said (at paras 86 and 87):
"The question of capacity to marry has never been considered by reference to a person's ability to understand or evaluate the characteristics of some particular spouse or intended spouse. In my judgment, the same goes, and for much the same reasons, in relation to capacity to consent to sexual relations. The question is issue specific, both in the general sense and, as I have already pointed out, in the sense that capacity has to be assessed in relation to the particular kind of sexual activity in question. But capacity to consent to sexual relations is, in my judgment, a question directed to the nature of the activity rather than to the identity of the sexual partner.
A woman either has capacity, for example, to consent to 'normal' penetrative vaginal intercourse, or she does not. It is difficult to see how it can sensibly be said that she has the capacity to consent to a particular sexual act with Y whilst at the same time lacking capacity to consent to precisely the same sexual act with Z. So capacity to sexual intercourse depends upon a person having sufficient knowledge and understanding of the nature and character – the sexual nature and character – of the act of sexual intercourse, and of the reasonably foreseeable consequences of sexual intercourse, to have the capacity to choose whether or not to engage in it, the capacity to decide whether to give or withhold consent to sexual intercourse. It does not depend upon an understanding of the consequences of sexual intercourse with a particular person. Put shortly, capacity to consent to sexual relations is issue specific; it is not person (partner) specific."
- The judge also made it clear that the civil and criminal law should adopt the same test for capacity to consent to sexual relations although the former could not derogate from the protection afforded to the vulnerable by the latter: there was either capacity to consent to sexual relations or there was not and it could not depend upon the forensic context in which the question arose: see paras. 88 and 89. He also said that there was no relevant distinction between the test that he had formulated in X City Council v MB, NB and MAB and the test set out in s. 3(1) of the Act.
- At paragraph 84, Munby J directly addressed the relevance, or otherwise, of the test established by the Court of Appeal in Re MB (Medical Treatment):
'This does not mean that the test in Re MB (Medical Treatment)  2 FLR 426 is irrelevant in these contexts. After all, what I have called the general theory is in principle as applicable in a situation where the question is whether X has the capacity to marry as it would be if the question was whether X has the capacity to litigate or the capacity to consent (or refuse consent) to medical treatment. It is simply that such a refined analysis is probably not necessary where the issue is as simple as the question whether someone has the capacity to marry or the capacity to consent to sexual relations.'
- In London Borough of Ealing v KS  EWHC 636 (Fam),  1 MHLR 256, Roderic Wood J considered the significance of the requirement of sufficient knowledge and understanding of what Munby J described as "the reasonably foreseeable consequences of sexual intercourse". The context was an argument that these consequences included the possibility of impact on the individual's psychiatric, social and emotional state especially if she were to become pregnant. He asked whether the state should be put in the position of considering the nature of the proposed acts or the realism of her beliefs or otherwise in relation to the intentions of the person with whom she wished to have sexual intercourse, concluding that this proposition represented a confusion between capacity to consent in law and whether choices were wise when considered in the light of a best interests test.
- Against that background, it is necessary to consider the decision of the House of Lords in Regina v Cooper  UKHL 42,  1 WLR 1786. The complainant, an emotionally unstable woman with schizo-affective disorder, low IQ and a history of harmful use of alcohol, left a community mental health team resource centre in a distressed and agitated state, met the defendant who offered to help her. He took her to a friend's house, gave her crack cocaine and asked her to engage in sexual activity which she did. She later said that she had consented because she had been panicky and afraid; she had both stayed and submitted because she did not want to die.
- In relation to a charge of sexual touching of a person with mental disorder impeding choice contrary to s. 30 of the Sexual Offences Act 2003 ('the 2003 Act'), the jury were directed that the complainant would have been unable to refuse sexual activity if she lacked the capacity to choose whether to agree to it for any reason, including an irrational fear or confusion of mind arising from mental disorder or if through her mental disorder she was unable to communicate such a choice to the defendant even though she was physically able to communicate. Quashing the conviction, the Court of Appeal (Criminal Division) agreed with the conclusion expressed by Munby J that a lack of capacity to choose to agree "cannot be person specific or, we would add, situation specific" and held that irrational fear which prevented the exercise of choice could not be equated with lack of capacity to choose and that inability to communicate referred to a physical inability.
- The House of Lords restored the conviction. The headnote summarises the decision in this way:
"[T]he words 'or for any other reason' in section 30(2)(a) of the 2003 Act encompassed a wide range of circumstances in which a person's mental disorder might make her unable to make an autonomous choice whether to agree to sexual touching even though she might have sufficient understanding of the information relevant to making it; that those circumstances could include an irrational fear preventing the free exercise of choice; that incapacity to choose could be person- and situation-specific; that section 30(2)(b) of the 2003 Act referred to an inability to communicate choice which was the result of or associated with a disorder of the mind and its meaning was not limited to a physical inability to communicate; and that, accordingly, the judge's directions on lack of capacity and inability to communicate would be upheld."
- The ratio of the case turns on the proper interpretation of s. 30 of the 2003 Act. Baroness Hale (with whom the other members of the House agree) makes it clear (at para 25):
"A person is unable to refuse if he lacks the capacity to choose whether to agree to the touching "whether because he lacks sufficient understanding of the nature or reasonably foreseeable consequences of what is being done, or for any other reason": section 30(2)(a). Provided that the inability to refuse is "because of or for a reason related to a mental disorder" (section 30(1)(c)), and the other ingredients of the offence are made out, the perpetrator is guilty. The words "for any other reason" are clearly capable of encompassing a wide range of circumstances in which a person's mental disorder may rob them of the ability to make an autonomous choice, even though they may have sufficient understanding of the information relevant to making it. These could include the kind of compulsion which drives a person with anorexia to refuse food, the delusions which drive a person with schizophrenia to believe that she must do something, or the phobia (or irrational fear) which drives a person to refuse a life-saving injection (as in In re MB  2 FLR 426) or a blood transfusion (as in NHS Trust v T  1 All ER 387)."
- The significance of the decision, however, is far wider. Baroness Hale introduced her speech by referring to the policy of the Mental Health Act 1959, as much as (and to the extent) possible, to integrate into society people with mental disorders and disabilities, so that they could enjoy the same rights as other people. She considered that the Court of Appeal was unduly influenced by the views of Munby J "in another context" and which she was "far from persuaded … were correct". This was on the basis that the case law on capacity had recognised that to be able to make a decision the person concerned must not only be able to understand the information relevant to making it but also be able to "weigh [that information] in the balance to arrive at [a] choice" (see In Re C (Adult: Refusal of Treatment  1 WLR 290, 295 approved in In re MB (Medical Treatment)  2 FLR 426, 433). Baroness Hale went on (at para 27):
"[I]t is difficult to think of an activity which is more person- and situation-specific than sexual relations. One does not consent to sex in general. One consents to this act of sex with this person at this time and in this place. Autonomy entails the freedom and the capacity to make a choice of whether or not to do so. This is entirely consistent with the respect for autonomy in matters of private life which is guaranteed by article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms."
- In addition to referring to Re C and Re MB (see paragraph 27 above) Baroness Hale referred, in the same context, to the decision of Charles J in NHS Trust v T (adult patient: refusal of medical treatment)  EWHC 1279 (Fam),  1 All ER 387, where the patient had a history of self harming leading to dangerously low haemoglobin levels. She knew that if she refused a blood transfusion she might die; nevertheless she believed that her blood was evil and that the healthy blood given her in a transfusion became contaminated and thus increased the volume of evil blood in her body and "likewise the danger of my committing acts of evil". Charles J concluded that she was unable to use and weigh the relevant information, and thus the competing factors, in the process of arriving at her decision to refuse a transfusion.
- Although not binding, the view expressed by Baroness Hale in Regina v Cooper has clearly (and rightly) had very real influence on the judges of the Family Division who are called upon to make decisions in this very difficult area of the law. In D County Council v LS  EWHC 1544 (Fam),  COPLR 331 Roderic Wood J expressed the view that, in principle, there should be a significant degree of conformity in the tests relevant to establishing capacity in both the civil and criminal courts. He suggested (at para. 40) that it was necessary to discriminate between those matters which go directly to a person's capacity to make a choice and those matters that could only be relevant to a 'best interests' decision. He went on:
"What is necessary is that the particular sexual partner … impedes or undermines or has the effect of impeding or undermining the mental functioning of a person when that person makes their decisions, so as to render them incapacitous."
- In Re A (Capacity: Refusal of Contraception)  EWHC 1549, (Fam)  Fam 61 concerned the issue of contraception and the relevance of consequences that may follow a sexual relationship (in particular, pregnancy and the removal of any child from her care). The local authority argued that the "reasonably foreseeable consequences" in s. 3(4) of the Act should be construed widely to include an understanding of what would be involved in caring for and committing to a child. Bodey J (accepting the argument advanced by the Official Solicitor) rejected that approach, considering that it set the bar too high and risked a move away from personal autonomy in the direction of social engineering. He said (at para 61):
"I am persuaded that the wider test would create a real risk of blurring the line between capacity and best interests. If part of the test were to involve whether the woman concerned understood enough about the practical realities of parenthood, then one would inevitably be in the realms of a degree of subjectivity, into which a paternalistic approach could easily creep. What exactly would the woman have to be able to envisage about parenthood, who would decide, and just how accurate would her expectations have to be? … This translates into the statutory embargo in section 1 (4) against finding incapacity on the basis that a given decision would be 'unwise',
- Later, at paragraphs 63 and 64, he concluded:
"Contrary to my initial view as to the very wide ambit of the words 'the reasonably foreseeable consequences' [s 3(4)] of deciding one way or another on contraception, I have concluded that Official Solicitor's submissions on this are correct. Although in theory the 'reasonably foreseeable consequences' of not taking contraception involve possible conception, a birth and the parenting of a child, there should be some limit in practice on what needs to be envisaged, if only for public policy reasons. I accept the submission that it is unrealistic to require consideration of a woman's ability to foresee the realities of parenthood, or to expect her to be able to envisage the fact-specific demands of caring for a particular child not yet conceived with unpredictable levels of third-party support. I do not think such matters are reasonably foreseeable: or, to borrow an expression from elsewhere, I think they are too remote from the medical issue of contraception. To apply the wider test would be to 'set the bar too high' and would risk a move away from personal autonomy in the direction of social engineering.
… I do not consider that questions need to be asked as to the woman's understanding of what bringing up a child would be like in practice; nor any opinion attempted as to how she would be likely to get on; nor whether any child would be likely to be removed from her care."
- The issue was further analysed by Mostyn J in D Borough Council v B  EWHC 101 (Fam),  Fam 36 in a case concerning an application by a local authority for a declaration that a vulnerable adult with a moderate learning disability lacked capacity to consent to sexual relations. The judge made an interim order to that effect pending practical steps (by way of sex education) to generate capacity. Revisiting the authorities, he noted (at para. 13 et seq) that to enter into a marriage (of which sexual relations is, generally speaking, a component part), "the bar of intelligence and understanding is set low". Nullity is available where consent has been forced or tricked. Reviewing Gillick v West Norfolk and Wisbech Area Health Authority  AC 112, concerned with contraception advice for girls under the age of 16, he observed (at para 18):
"It is noteworthy that the doctor does not need to know the identity of the person with whom the girl proposes to have sex, let alone his characteristics. The terms of this decision show clearly that the capacity in question is act- and not person-specific."
- Concluding that capacity to consent to sexual relations was act-specific and required an understanding and awareness of the mechanics of the act, that there are health risks involved and that sex between a man and a woman could result in the woman becoming pregnant, Mostyn J rejected the "compromise approach" advanced by Roderic Wood J. He recognised that although it was difficult to think of an activity more person- and situation-specific than sexual relations (as Baroness Hale had observed), he said that the same was true (or truer) of marriage. He went on (at para. 35):
"It does not follow that capacity to marry is spouse- as opposed to status-specific. Far from it. I do think … that there has been a conflation of capacity to consent to sex and the exercise of that capacity. There is also a very considerable practical problem in allowing a partner-specific dimension into the test. Consider this case. Is the local authority supposed to vet every proposed sexual partner of Alan to gauge if Alan has the capacity to consent to sex with him or her?"
- In A Local Authority v H  EWHC 49 COP,  1 FCR 590, Hedley J considered the issue of capacity to consent to sexual relations in the context of an adult with mild learning disabilities and atypical autism with a full scale IQ of 64 who had demonstrated an early and deep degree of sexualisation. In expressing himself as closer to the views of Munby and Mostyn JJ, he provided important context to the issue of whether a single test could exist both for the criminal and civil law. He said (at page 596e):
" It is of course important to remember that possession of capacity is quite distinct from the exercise of it by the giving or withholding of consent. Experience in the family courts tend to suggest that in the exercise of capacity humanity is all too often capable of misguided decision-making and even downright folly. That of itself tells one nothing of capacity itself which requires a quite separate consideration.
 These issues, moreover, resonate both in criminal and in civil law. It is of course highly desirable that there should be no unnecessary inconsistency between them. However, capacity arises in different contexts. In the criminal law it arises most commonly in respect of a single incident and a particular person where the need to distinguish between capacity and consent may have no significance on the facts. In a case such as the present, however, capacity has to be decided in isolation from any specific circumstances of sexual activity as the purpose of the capacity enquiry is to justify the prevention of any such circumstances arising. There is of course no absolute distinction between capacity in civil and capacity in criminal law, it is merely that they fall to be considered in very different contexts and often, perhaps, for different purposes."
- Later, at paragraph 26, Hedley J concluded:
'The focus of the criminal law must inevitably be both act and person and situation sensitive; the essential protective jurisdiction of this court, however, has to be effective to work on a wider canvas. It is in those circumstances that I find myself closer to the views expressed by Munby J and Mostyn J …'
- In our judgment, the distinction drawn by Mostyn J and Hedley J is extremely important and sight of it must not be lost. The criminal law bites only retrospectively. Has this conduct, in these circumstances and with the knowledge or understanding of these participants, contravened the law? In the context of s. 30 of the 2003 Act, provided the inability to refuse is because of or for a reason related to a mental disorder, it does not matter whether it is because he or she lacks sufficient understanding of the nature or reasonably foreseeable consequences of what is being done, or for any other reason. The civil law requires prospective assessment in the light of the particular circumstances of the affected individual. The criminal law does not only protect those whom the courts have declared lack capacity.
- In A Local Authority v H, at paragraph 30, Hedley J considered the question of ability to weigh and use relevant information in the context of sexual relations and observed:
'This is a difficult concept in the context of human sexual relations since choices are generally made rather more by emotional drive and instinct than by rational choice. Of course there is a rational element that has been for most people assimilated into instinct and the control of emotional drive. It seems to me that what is at issue here is whether the person is able to deploy the general knowledge set out above into a specific decision-making act.'
- Subsequent to the decision of Peter Jackson J in the present case, in PC v City of York Council  EWCA Civ 478,  COPLR 409, this court has considered the question of the capacity of a woman to decide whether or not she was going to live with her husband. McFarlane LJ (with whom Richards and Lewison LJJ agreed) recognised (at para. 21) that capacity to marry was "act, rather than person, specific" and that there was "some relatively solid ground for holding that the same is also true with respect to consent to sexual relations". He did not consider it necessary to resolve the issue raised by Baroness Hale about the approach of Munby J (and others) but observed (at para. 27):
"Whilst consent to sexual relations forms part of the wider decision by a spouse whether or not to take up full cohabitation with her husband, the two decisions are not precisely the same. The fact that one may be act-specific does not mean that the other, wider, decision cannot be person-specific."
- McFarlane LJ was also clear about the importance of the statutory language. He said (at para. 35):
"The determination of capacity under MCA 2005, Part 1 is decision-specific. Some decisions, for example agreeing to marry or consenting to divorce, are status or act specific. Some other decisions, for example whether P should have contact with a particular individual, may be person-specific. But all decisions, whatever their nature, fall to be evaluated within the straightforward and clear structure of MCA 2005, ss 1 to 3 which requires the court to have regard to 'a matter' requiring 'a decision'. There is neither need nor justification for the plain words of the statute to be embellished. … The MCA 2005 itself makes a distinction between some decisions (set out in s 27) which as a category are exempt from the court's welfare jurisdiction once the relevant incapacity is established (for example consent to marriage, sexual relations or divorce) and other decisions (set out in s 17) which are intended, for example, to relate to a 'specified person' or specific medical treatments."
- We endorse the language of McFarlane LJ and express concern that the terminology that has developed in this field ('person-specific', 'act-specific', 'situation-specific' and 'issue-specific') although superficially attractive, tends to disguise the broad base of the statutory test which, when applied to the question of capacity in the wide range of areas that is covered by the Act, will inevitably give rise to different considerations. It is important to emphasise that s. 3(1)(c) of the Act refers to the ability to use or weigh information as part of the process of making the decision. In some circumstances, having understood and retained relevant information, an ability to use it will be what is critical; in others, it will be necessary to be able to weigh competing considerations.
- The short judgment of Hedley J in A NHS Trust v P  EWHC 50 (COP) (which involved capacity to decide whether or not to continue with, or terminate, a pregnancy) is also worthy of note for its more general observations as to the proper limits of the Court of Protection's jurisdiction (para. 10):
"Most importantly, the Act provides:
'A person is not to be treated as unable to make a decision merely because he makes an unwise decision.'
In the field of personal relationships that is a very important qualification to the powers of the court. The plain fact is that anyone who has sat in the Family jurisdiction for as long as I have, spends the greater part of their life dealing with the consequences of unwise decisions made in personal relationships. The intention of the Act is not to dress an incapacitous person in forensic cotton wool but to allow them as far as possible to make the same mistakes that all other human beings are at liberty to make and not infrequently do."
- Finally, in terms of this review of the relevant case law, comes the recent decision of Baker J in A Local Authority v TZ  EWHC 2322 (COP) which directly considered capacity to consent to sexual relations. On the central issue, Baker J concluded:
"For my part, in this case, I shall adopt the approach of Munby J and Mostyn J and hold that the capacity to consent to sexual relations is indeed act specific rather than person specific. With respect to Baroness Hale, it seems to me that the approach favoured by Munby J and Mostyn J is more consistent with respect for autonomy in matters of private life, particularly in the context of the statutory provisions of the MCA and specifically the presumption of capacity and the obligation to take all practical steps to enable a person to make a decision. To require the issue of capacity to be considered in respect of every person with whom TZ contemplated sexual relations would not only be impracticable but would also constitute a great intrusion into his private life."
The Arguments on Appeal
- For the Appellant, Mr Richard Gordon Q.C. sought to establish seven propositions:
i) The evaluation of legal capacity focuses, by reference to the criteria in MCA 2005, on the capacity of an individual to make a particular decision or decisions. The legal principles to be applied are the same whatever the nature of the decision in question.
ii) Deciding whether a person possesses such legal capacity necessarily requires consideration of the characteristics of the person making the decision. In that sense evaluation of capacity is always person-centred or person specific.
iii) Some decisions (for example in the context of a person's relationship with another person) are person specific. Other decisions may not involve that dynamic and may be 'act specific'.
iv) Capacity to consent to sexual relations is pre-eminently capable of being a person specific decision and will inevitably relate to consent to sexual relations with another particular individual.
v) The case law on capacity to consent to sexual relations has become confused and over-complicated; it requires to be modified in the light of the correct principles;
vi) Applying the correct principles to the evidence on the facts of the present case, the only evidence was clearly to the effect that, on an evaluation of capacity that included a person specific element, LM did not possess capacity to consent to sexual relations.
vii) The judge adopted an erroneous approach and failed to consider any person-specific element. He considered a number of legally irrelevant considerations. He adopted an incorrect threshold test as well as departing from the conclusion of expert witnesses without providing any articulated reason for so doing. His conduct of the hearing was also in error.
- During the course of his oral submissions, Mr Gordon was plain that his propositions (i) to (iv) involve a head-on attack upon each of the previous High Court decisions on capacity to consent to sexual relations on the basis that there has been over-conceptualisation and in each case the elementary mistake is made of attempting to evaluate capacity in a manner that was divorced from the person-specific factors in the cases. Mr Gordon firmly relies upon the approach taken by this court in PC v City of York.
- Mr Gordon submits that it is not relevant to have regard to the fact that consent to sexual relations is singled out, together with other issues relating to status, by s 27 of the Act. He argues that s 27 only applies once lack of capacity to consent to sexual relations has been established and it can therefore have no impact upon that, earlier, assessment of capacity.
- In relation to his proposition (vii), relating to suggested errors by the judge, Mr Gordon argued that, of the five factors taken into account by the judge in paragraph 14 and 15 (set out at paragraph 18 above), no fewer than four were legally irrelevant to the issue before the court; those four factors were:
(a) That LM had been sexually active prior to her mental deterioration;
(b) Whilst LM's understanding of the risks of pregnancy was impaired, a declaration of incapacity would not provide her with increased protection;
(c) LM's opportunity for sexual activity would be limited as regards AB; and
(d) There was a risk of LM falling pregnant, respect for disability involved providing opportunities that carried some risk.
- In taking some of the above matters into account, it is argued that the judge committed the error of considering aspects of LM's best interests at the stage of determining capacity. That, submits Mr Gordon, leaves only one element in paragraphs 14 and 15 that supports the decision and that is the finding that LM understands the rudiments of the sexual act and has a basic understanding of the issues of contraception and the risks of sexually transmitted disease. These factors, it is argued, are entirely issue-specific and indicate an erroneous judicial approach.
- Finally, the judge is criticised for determining this important issue at a hearing that lasted less then two hours and without adjourning to permit the expert evidence to be canvassed in full.
- In opposition to the appeal, Miss Jenni Richards Q.C. makes the following core submissions:
i) The approach taken at first instance by Munby J (as he then was), Mostyn J, Hedley J and Baker J is the correct approach;
ii) The Appellant's argument is flawed for the following reasons:
(a) The issue of capacity is conflated with the exercise of that capacity in relation to any specific giving or withholding of consent at a later date.
(b) The line between capacity and best interests is blurred.
(c) The Appellant's approach is an 'outcome' approach, which focuses on the final content of an individual's decision. Such an approach was expressly eschewed by the Law Commission report which was the precursor of the MCA 2005 (Law Com No 231 'Mental Incapacity' 1995), in favour of the 'functional' approach, which is now at the core of the Act.
(d) The Appellant, by referring to the range of information that a person must be able to understand and weigh, identifies a decision making process that would be a challenge for many capacitated adults and bears no relation to real life decisions.
(e) The Appellant's case therefore requires a level of capacity in excess of that applicable in everyday life.
(e) As a result, the Appellant's case seeks to establish an unjustified and disproportionate interference with LM's life and is in any event impracticable and unworkable.
- On behalf of AB, Mr Adam Fullwood supported the submissions of the Official Solicitor on the law and, in doing so, made a strong plea for the court to identify a workable and practical test based on the individual's ability to carry out the decision making process in the context of sexual relations.
- For the local authority, Mr James Gatenby reminded the court that the Act is solely concerned with enabling the court to do for an individual what he is not capable of doing for himself; the statute goes no further. Sexual relations are an area of private life of the utmost sensitivity and the state, through the decisions of the court, should be very cautious before it holds that a person is incapable of making such decisions for themself. Mr Gatenby submitted that, for most people, the decision whether or not to engage in sexual relations was an impulsive, emotive matter that is often driven by deep and private thoughts; it would be wrong for the court to impose a more stringent requirement upon those whose case may be before the Court of Protection.
- A theme of all three of the submissions made in opposition to the appeal was that, because of the nature of the decision, where in ordinary life the heart may easily overrule the head, when determining capacity to consent to sexual relations the element in s 3(1)(c) of the Act relating to the ability to use and to weigh information is of limited relevance.
- We have considered with care the apparent conflict between the approach taken in the reported cases at first instance and the obiter observations of Baroness Hale in Regina v Cooper. The apparent distinction of approach would seem to arise in two respects:
i) Baroness Hale's concern that Munby J was advocating an approach to the evaluation of capacity to consent to sexual relations which, in contrast to other areas of capacity, did not involve the need to consider whether the individual was able to use and to weigh the relevant information; and
ii) Munby J's conclusion that capacity to consent to sexual relations was 'issue specific' and not person, or partner, specific, which is in contrast to Baroness Hale's statement that it is difficult to think of an activity which is more person and situation-specific than sexual relations.
- In trying to find a way through this apparent conflict, and taking the issue of whether Munby J was excluding the ability to 'weigh' from the test first, the key passage would seem to be the following words from paragraph 24 of Baroness Hale's speech in Regina v Cooper set out above but worth repeating:
'I am far from persuaded that [the views of Munby J] were correct, because the case law on capacity has for some time recognised that, to be able to make a decision, the person concerned must not only be able to understand the information relevant to making it but also be able to "weigh [that information] in the balance to arrive at [a] choice".'
- In the remainder of paragraph 24 Baroness Hale references the internal quotation above to the then extant case law and provides two examples of the importance of an ability to weigh the relevant information. These are Re C (Adult Refusal of Treatment)  1 WLR 290 (patient's persecutory delusions might have prevented him from weighing up information relating to deciding to consent to the amputation of a leg because of gangrene) and NHS Trust v T (Adult Patient: Refusal of Medical Treatment)  1 All ER 387 (patient with a history of self-harming, who needed blood transfusions, had a delusion that the transfused blood was 'evil' where Charles J held that she was unable to use and weigh the relevant information).
- The two decisions of Munby J which were before the House of Lords in Regina v Cooper, and to which Baroness Hale makes express reference, were X City Council v MB and others in 2006 and Re MM in 2007. We have already described how both of these decisions, in turn, drew upon Munby J's earlier judgment in Sheffield City Council v E.
- In the Sheffield City Council case Munby J had sought to draw a distinction between evaluation of 'complex' decisions, for example the conduct of litigation or consent to medical treatment, to which the approach in Re C (Adult Refusal of Treatment) (which Baroness Hale had directly in mind) would be 'appropriate and helpful' but Munby J went on to say (paragraph 136):
'But I doubt whether such a refined analysis is either necessary or indeed particularly helpful where the issue is as simple as the question whether someone has the capacity to marry. … The question remains as it was in 1881 [in Hunter v Edney (orse Hunter) 10 PD 93]: is E capable of understanding the nature of the contract of marriage. There is no need, as it seems to me, to over-analyse that simple question by bringing to bear on it the analyses in Re C (Adult: Refusal of Treatment). I do not say that these analyses are irrelevant; they are not. I merely say that in this particular context it is unlikely to be either necessary or even particularly helpful to refer to them.'
- By the time he came to determine Re MM, the Act was on the statute book, but had not yet been brought into force. At paragraphs 69 to 72 Munby J describes the test in Re MB (to which Baroness Hale rightly affords full weight) and he accepted that this test, as he had held in the Sheffield City Council case, 'applies, in principle, to all "problems" and to all "decisions".' Munby J then goes on, at paragraph 73 to observe that "[w]hat is in essence, as it seems to me, the same theory or principle is now to be found in the statutory test of capacity set out in s 3(1) of the MCA 2005". He then sets out s 3(1) which, of course, includes s 3(1)(c) relating to the ability 'to use or weigh' relevant information.
- Our reading of the various judgments of Munby J prior to the House of Lords decision in Regina v Cooper is that he was drawing a distinction between the extent of the judicial investigation required as between a 'complex' decision, say, to consent to medical treatment, which would typically involve obtaining expert evidence, and a more straightforward decision, such as marriage or consenting to sexual relations, which ought not to require (and does not typically receive from a person of full capacity) such a refined analysis. The distinction drawn, therefore, relates to the extent of the judicial exercise, and not to its content or structure. If Baroness Hale, as seems to be the case, understood Munby J to be saying that consideration of the ability to 'weigh' up relevant information had no place in determining capacity to consent to sexual relations, then, with respect, we would suggest that this is a misunderstanding. Munby J's express endorsement of the Re MB test as applying to all decisions and his incorporation of s 3(1)(c) of the Act into his judgment in Re MM, which in turn he holds is the same test as in Re MB, strongly indicate that he was not seeking to apply a different test, that is to say one which did not include evaluation of ability to 'weigh', to capacity to marry or to consent to sexual relations.
- If, however, Baroness Hale was right and, contrary to our interpretation of Munby J's words, he was intending to apply a test to marriage and sexual relations which did not include the ability to use and to weigh relevant information, then we would unhesitatingly hold that Munby J was in error.
- For the avoidance of doubt, every single issue of capacity which falls to be determined under Part 1 of the Act must be evaluated by applying s 3(1) in full and considering each of the four elements of the decision making process that are set out at (a) to (d) in that sub-section. A person is unable to make a decision for himself if he is unable to undertake one or more of these four functions:
"(a) To understand the information relevant to the decision,
(b) To retain that information,
(c) To use or weigh that information as part of the process of making the decision, or
(d) To communicate his decision (whether by talking, using sign language or any other means)."
The extent to which, on the facts of any individual case, there is a need either for a sophisticated, or for a more straightforward, evaluation of any of these four elements will naturally vary from case to case and from topic to topic.
- The second aspect in which Baroness Hale's judgment is seemingly at odds with the approach taken in the first instance cases relates to the question of whether capacity to consent to sexual relations is 'issue-specific' or 'person/partner-specific'. The relevant quotation from Baroness Hale's speech is at paragraph 38 above and our summary of the first instance case law demonstrates the almost unanimous, and apparently contrary, view of those judges who have considered the point.
- Having already laid the ground during our summary of the case law (in particular at paragraphs 41 to 44) it is not necessary to dwell unduly on this point in which, in our view, each of the judges, including Baroness Hale, was correctly stating the law. The reason why the words used are diametrically opposed to each other arises, in our view, from the two distinct and different contexts in which the respective judgments were given. We regard the passages that we have quoted from Mostyn J in D Borough Council v B and Hedley J in A Local Authority v H as being correct in drawing a distinction between the general capacity to give or withhold consent to sexual relations, which is the necessary forward looking focus of the Court of Protection, and the person-specific, time and place specific, occasion when that capacity is actually deployed and consent is either given or withheld which is the focus of the criminal law.
- Baroness Hale is plainly right that: 'One does not consent to sex in general. One consents to this act of sex with this person at this time and in this place' [emphasis added]. The focus of the criminal law, in the context of sexual offences, will always be upon a particular specific past event with any issue relating to consent being evaluated in retrospect with respect to that singular event. But the fact that a person either does or does not consent to sexual activity with a particular person at a fixed point in time, or does or does not have capacity to give such consent, does not mean that it is impossible, or legally impermissible, for a court assessing capacity to make a general evaluation which is not tied down to a particular partner, time and place.
- Going further, we accept the submission made to us to the effect that it would be totally unworkable for a local authority or the Court of Protection to conduct an assessment every time an individual over whom there was doubt about his or her capacity to consent to sexual relations showed signs of immediate interest in experiencing a sexual encounter with another person. On a pragmatic basis, if for no other reason, capacity to consent to future sexual relations can only be assessed on a general and non-specific basis.
- Finally, as s 27 of the Act makes plain, where a court finds that a person lacks capacity to consent to sexual relations, then the court does not have any jurisdiction to give consent on that person's behalf to any specific sexual encounter. The exclusion in s 27 supports the conclusion that assessment of capacity to consent to sexual relations can only be on a general basis, rather than tied to the specific prospect of a sexual relationship with a particular individual in specific circumstances.
- On the basis that we have described, we hold that the approach taken in the line of first instance decisions of Munby J, Mostyn J, Hedley J and Baker J in regarding the test for capacity to consent to sexual relationships as being general and issue specific, rather than person or event specific, represents the correct approach within the terms of the MCA 2005. We also conclude that this approach is not, in truth, at odds with the observations of Baroness Hale, which were made in a different legal context.
- We also endorse the approach of Bodey J in Re A. The requirement for a practical limit on what needs to be envisaged as "reasonably foreseeable consequences" derives not just from pragmatism but from the imperative that the notional decision-making process attributed to the protected person with regard to consent to sexual relations should not become divorced from the actual decision-making process carried out in that regard on a daily basis by persons of full capacity. That process, as Ms Richards observes, is largely visceral rather than cerebral, owing more to instinct and emotion than to analysis.
- It is for that reason also that the ability to use and weigh information is unlikely to loom large in the evaluation of capacity to consent to sexual relations. It is not an irrelevant consideration; indeed (as we have emphasised) the statute mandates that it be taken into account, but the notional process of using and weighing information attributed to the protected person should not involve a refined analysis of the sort which does not typically inform the decision to consent to sexual relations made by a person of full capacity. That is the point which Munby J was seeking to make in MN at paragraph 84, which we have reproduced at paragraph 35 above. It is precisely this point at which Hedley J was driving in A NHS Trust v P when he observed that "the intention of the Act is not to dress an incapacitous person in forensic cotton wool but to allow them as far as possible to make the same mistakes that all other human beings are at liberty to make and not infrequently do".
- We agree. Perhaps yet another way of expressing the same point is to suggest that the information typically, and we stress typically, regarded by persons of full capacity as relevant to the decision whether to consent to sexual relations is relatively limited. The temptation to expand that field of information in an attempt to simulate more widely informed decision-making is likely to lead to what Bodey J rightly identified as both paternalism and a derogation from personal autonomy.
- For all these reasons, therefore, we consider that in his paragraphs 14 and 15 the judge adopted essentially the correct approach and reached a conclusion which is not just unassailable but also, we think, on the basis of the evidence before him, correct.
- Turning to Mr Gordon's specific criticisms of the judge, we deal first with the propositions identified at paragraph 55 above. Points (i)-(iii) are unexceptional, save only for two matters. First, it must be borne in mind that where a decision is of a kind which falls to be made on a daily or at any rate repeated basis, it is inevitable that the enquiry required by the Act is as to the capacity to make a decision of that kind, not as to the capacity to make any particular decision of that kind which it may be forecast may confront the protected person. Second, it must be understood that the evaluation of capacity to make a decision whether to consent to sexual relations is in this civil, prospective context, person-centred or person-specific only in the sense that it is of course the capacity of the protected person which is in issue. Mr Gordon's point (iv) goes to the heart of the matter and we have already explained why in our view capacity to consent to future sexual relations can only be assessed on a general and non-specific basis. As to point (v), we hope that we have adequately explained the source of any possible confusion in the current learning. As to point (vi), we consider with respect that the evidence of Dr G which principally bore upon an alleged lack of capacity related not to the introduction of a person-specific element in the sense of the identity of any sexual partner but rather to Dr G's doubts as to LM's ability to understand the foreseeable, possibly inevitable consequences of pregnancy. For ease of reference we repeat the relevant passages from Dr G's two supplementary reports:-
"However, she was not able to weigh up the risks to herself of a further pregnancy or the potential risks to any children. Specifically, she could identify no difficulties that she may have if she became pregnant saying that she already had three children and that they were "OK" . . . She could see no areas of concern that others may have about her looking after children."
"LM was not able to weigh up the advantages and disadvantages of becoming pregnant, specifically as she was unable to recognise that pregnancy may result in health risks to herself, potentially the foetus and that the foreseeable outcome of the pregnancy, i.e. a baby, which she may or may not have contact with."
- We agree with Miss Richards that, in identifying these considerations, Dr G introduced into the notional decision-making process elements of refinement which could not reasonably be expected to inform the typical, and again we emphasise typical, decision-making process of persons of full capacity. In so doing, Dr G went beyond the practical and pragmatic limit which we have attempted to identify. It follows that there is also nothing in the criticism that the judge departed from the conclusion of an expert witness, and specifically a jointly instructed expert witness, without providing any articulated reason for so doing. The judge did no such thing. The judge simply identified a part of Dr G's evidence as irrelevant to the legal issue to be decided. He also explained why he did so – because it did not bear upon LM's capacity to make a decision of the kind in question.
- Mr Gordon's point (vii) was expanded in argument as we have set out at paragraph 58 above. We do not agree that the judge took into account legally irrelevant considerations. The fact that LM had been sexually active prior to her mental deterioration was obviously relevant, not least given Dr P's opinion that LM's understanding of the nature and character of the act of sexual intercourse had not been lost following her brain injury. Equally, we consider that the judge was right to point out that, in LM's circumstances, a declaration of incapacity would provide her with little protection in respect of her impaired ability to understand the full implications for herself of pregnancy, unless of course she was to be subjected to a degree of intrusive control which is inappropriate, not realistically achievable and, in any event, simply unthinkable.
- This last point is not of course relevant to the evaluation of capacity, but the judge did not suggest that it was. Allied to the point however, we do regard as highly pertinent the judge's observation that the potential adverse consequences of sexual relationships are matters upon which LM can expect to be given support, for example, by way of advice upon contraception. The same is true of a person of full capacity. LM's weakness of perception in this area, a weakness which is sadly not uncommon (albeit the consequences for LM may be more significant than for many), do not in her case tell in favour of a lack of capacity to consent to sexual relations any more than it does in a person of full capacity.
- Mr Gordon also castigated as legally irrelevant to the question of capacity the judge's observation that "The respect that a person with disabilities such as LM is entitled to must mean that she is given opportunities which may carry with them at least some levels of risk." In our judgment the judge was there expressing in different language precisely the point espoused by Hedley J in A NHS Trust v P to the effect that the intention of the Act is to allow a protected person as far as possible to make the same mistakes as all other human beings are at liberty to make and not infrequently do.
- We do agree with Mr Gordon that the fact that LM's opportunity for sexual activity with AB will, for at least some time to come, be limited is not relevant to the question of capacity. However we do not think that the judge so regarded it either. He merely gave it as an example of the effect of the close support currently afforded to LM. It was indicative that the overall package of decisions concerning residence, care and contact were centred on LM's welfare. It also incidentally points up that in terms of protection against the consequences of an unwise decision LM may ironically in this respect if in no other be in a better position than others of full capacity.
- That leaves only the criticism that the judge was wrong to proceed to a decision rather than to give directions for the resolution of the issue. We have already dealt with this point at paragraph 12 above. In effect the complaint resolved to an assertion that IM, wished to examine Dr G. That desire does not emerge from IM's Position Statement of 15 January 2013, prepared for the hearing on 22 January 2013, and it was not enunciated by Mr Matthew Stockwell who appeared for IM at the hearing before the judge. In the Position Statement, IM supported the assessment of Dr G that LM lacks capacity to consent to sexual relations and at paragraph 10 indicated, somewhat equivocally, "IM wishes to have an opportunity to assess her position in light of Dr G's responses to further questioning". On the central aspect of Dr G's opinion cross-examination would have been beside the point. The relevant material is legally irrelevant. All parties acquiesced in the judge proceeding as he did and he considered that the proceedings were "overdue for conclusion". In our view there is no substance in the criticism of the judge's conduct of the hearing.
- We dismiss the appeal.
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