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You are here: BAILII >> Databases >> England and Wales Court of Protection Decisions >> A Local Authority v TZ [2013] EWCOP 2322 (31 July 2013) URL: https://www.bailii.org/ew/cases/EWCOP/2013/2322.html Cite as: [2013] EWCOP 2322, [2013] EWHC 2322 (COP) |
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Strand, London, WC2A 2LL |
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B e f o r e :
____________________
IN THE MATTER OF THE ![]() ![]() AND IN THE MATTER OF TZ A LOCAL AUTHORITY |
Applicant |
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- and - |
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TZ (by his litigation friend, the Official Solicitor) |
Respondent |
____________________
John McKendrick (instructed by CVC Solicitors on behalf of the Official solicitor) for the Respondent
Hearing dates: 3rd and 4th July 2013
____________________
Crown Copyright ©
The Honourable Mr. Justice Baker :
Introduction
Background
"TZ has some knowledge of the mechanics and risk of sexual intercourse, and the potential for these risks to be reduced by using condoms. In my opinion, and in making comparison with the general population of sexually active individuals, his level of knowledge does reach the threshold of 'rudimentary' for the mechanics of sexual intercourse, awareness of associated health risks with respect to sexually transmitted infections (and that a condom can potentially reduce these risks) and that sex between the man and the woman may result in pregnancy."
The Law
"1. The principles. This section has no associated Explanatory Notes
(1) The following principles apply for the purposes of this Act.
(2) A person must be assumed to havecapacity
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 lackscapacity
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.
2. People who lackcapacity
. This section has no associated Explanatory Notes
(1) For the purposes of this Act, a person lackscapacity
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 a disturbance in the functioning of, the mind or brain.
(2) It does not matter whether the impairment or disturbance is permanent or temporary.
(3) A lack ofcapacity
cannot be established merely by reference to -
(a) a person's age or appearance, or
(b) a condition of his, or an aspect of his behavior, which might lead others to make unjustified assumptions about hiscapacity
.
(4) In proceedings under this Act or any other enactment, any question whether a person lackscapacity
within the meaning of this Act must be decided on the balance of probabilities.
(5) No power which a person ("D") may exercise under this Act—
(a) in relation to a person who lackscapacity
, or
(b) where D reasonably thinks that a person lackscapacity
,
is exercisable in relation to a person under 16.
(6) Subsection (5) is subject to section 18(3).
3. Inability to make decisions. This section has no associated Explanatory Notes
(1) 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) touse
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).
(2) A person is not to be regarded as unable to understand the information relevant to a decision if he is able to understand an explanation of it given to him in a way that is appropriate to his circumstances (using simple language, visual aids or any other means).
(3) The fact that a person is able to retain the information relevant to a decision for a short period only does not prevent him from being regarded as able to make the decision.
(4) The information relevant to a decision includes information about the reasonably foreseeable consequences of—
(a) deciding one way or another, or
(b) failing to make the decision."
"The determination ofcapacity
under MCA 2005 Part I 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 the MCA 2005 sections 1 – 3, which requires the court to have regard to 'a matter' requiring 'a decision'. There is neither need or justification for the plain words of the statute to be embellished."
"The question [capacity
to consent to sexual relations] is issue specific, both in the general sense and…in a 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."
"My Lords, it 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 thecapacity
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. The object of the Sexual Offences Act 2003 was to get away from the previous 'status' – based approach which assumed that all 'defectives' lacked
capacity
, and thus denied them the possibility of making autonomous choices, while failing to protect those whose
mental
disorder deprived them of autonomy in other ways."
"but the same is true (if not truer) of marriage. But it does not follow thatcapacity
to marry is spouse-as opposed to status- specific. Far from it. I do think, with the greatest possible respect, 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?"
"the question is whether she (or he) lacks thecapacity
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."
At paragraph 84, he added:
"… [F]or present purposes, the question comes to this. Does the person have 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 thecapacity
to choose whether or not to engage in it…"
"I therefore conclude that thecapacity
consent to sex remains act-specific and requires an understanding and awareness of: the mechanics of the act; that there are health risks involved, particularly the acquisition of sexually transmitted and sexually transmissable infections; that sex between a man and a woman may result in the woman becoming pregnant."
"I would also make this observation. I am sure that the first and second of these criteria is needed to be able to consent to penetrative anal sex and oral sex. I doubt if the third is. And I doubt if either the second or third is necessary to be able to consent to sexual activity such as mutual masturbation. This leads to potentially serious management problems where different kinds of sexual activities are practiced at different times."
"…the court must tread especially carefully where an organ of the state proposes that a citizen's ability to perform, in a non-abusive way, the sex function should be abrogated or curtailed. It involves a very profound aspect of civil liberties and person autonomy."
"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 the emotional drive."
Evidence concerning TZ's capacity
to consent to sexual relations
"… [TZ's] ability touse
and
weigh
this information in balance in order to reach a decision was significantly compromised by both his cognitive and social impairment arising from his
mental
condition. More specifically, distractibility and impulsivity (associated with his ADHD) and abstract thinking/imagimation difficulties and nintense interests (associated with his autism) are likely to significantly interfere with his ability to
use
and
weigh
relevant information."
"My opinion remains that TZ's ability touse
and
weigh
the relevant information (which includes a complex analysis of risks and benefits often in the abstract and hypothetical) in balance in order to reach a decision is still significantly compromised by both his cognitive and social impairment arising from his complex
mental
condition. Specifically, symptoms associated with his ADHD (including distractibility and impulsivity), and those associated with autism (abstract thinking/imagination difficulties and intense interests) together with his intellectual impairment are still likely to significantly interfere with his ability to
use
and
weigh
relevant information. Other psychological factors such as early attachment issues, emotional factors related to his traumatic experiences are also likely to contribute."
"I always have someone with me. I feel all right about that but I'd like them to take a step back so I could take responsibility for my own life."
Discussion and conclusion
"some people who have serious brain damage might make impulsive decisions regardless of information they have been given or their understanding of it".
"This criterion is much too sophisticated to be included in the low level of understanding and intelligence needed to be able to consent to sex. Apart from anything else, I would have thought that a great deal of sex takes place where one party or the other is wholly oblivious to this supposed necessity."