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You are here: BAILII >> Databases >> England and Wales Court of Protection Decisions >> DY, Re [2021] EWCOP 28 (10 May 2021) URL: https://www.bailii.org/ew/cases/EWCOP/2021/28.html Cite as: [2021] EWCOP 28, [2021] COPLR 415, (2021) 24 CCL Rep 387 |
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Strand, London, WC2A 2LL |
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B e f o r e :
____________________
A Local Authority |
Applicant |
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- and – A Mother And A Father and |
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DY (by her litigation friend, the Official Solicitor) |
Respondents |
____________________
Mr Mant for DY
The other Respondents were neither present nor represented.
Hearing dates: 3 February and 23 April 2021
____________________
Crown Copyright ©
Mrs Justice Knowles:
Background Facts
Capacity
to Decide to Engage in Sexual Relations: The Current Law
1) the sexual nature and character of the act of sexual intercourse, including the mechanics of the act;
2) the fact that the other person must have thecapacity
to consent to the sexual activity and must in fact consent before and throughout the sexual activity;
3) the fact that P can say yes or no to having sexual relations and is able to decide whether to give or withhold consent;
4) that a reasonably foreseeable consequence of sexual intercourse between a man and a woman is that the woman will become pregnant;
5) that there are health risks involved, particularly the acquisition of sexually transmitted and transmissible infections, and that the risk of sexually transmitted infection can be reduced by the taking of precautions such as theuse
of a condom.
"The greater problem for me is whethercapacity
needs in some way to reflect or encompass the moral and emotional aspect of human relationships. I have reflected long and carefully on this given Miss Jenni Richards QC's challenge to formulate and articulate a workable test. In relation to the moral aspect, I do not think it can be done. Of itself that does not alarm me for two reasons: first, I think the standard for
capacity
would be very modest, not really going beyond an awareness of "right" and "wrong" behaviour as factors in making a choice; and secondly, the truly amoral human is a rarity and other issues would then come into play. Accordingly, although in my judgment it is an important component in sexual relations, it can have no specific role in a test of
capacity
.
And so one turns to the emotional component. It remains in my view an important, some might argue the most important, component; certainly, it is the source of the greatest damage when sexual relations are abused. The act of intercourse is often understood as having an element of self-giving qualitatively different from any other human contact. Nevertheless, the challenge remains: can it be articulated into a workable test? Again I have thought long and hard about this and acknowledge the difficulty inherent in the task. In my judgment one can do no more than this: does the person whosecapacity
is in question understand that they do have a choice and that they can refuse? That seems to me an important aspect of
capacity
and is as far as it is really possible to go over and above an understanding of the physical component."
"…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."
Concerns about a person's ability to understand orweigh
risks posed by potential sexual partners could lead to a conclusion that they lacked
capacity
to make certain decisions about contact or support arrangements. However, such concerns were irrelevant to the person's
capacity
to consent to the sexual act itself (A Local Authority v TZ (No 2) [2014] EWCOP 973). It is noteworthy that the requirement to assess
capacity
on a general basis applies to the timing and circumstances of the decision, not just to the identity of the sexual partner: see [76]-[77] of IM v LM (see above) wherein the Court of Appeal stated:
"[76] 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 havecapacity
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.
[77] 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 hercapacity
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.
[78] Finally, as s 27 of the Act makes plain, where a court finds that a person lackscapacity
to consent to sexual relations, then the court does not have any jurisdiction to give consents 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."
"Most people faced with the decision whether or not to have sex do not embark on a process of weighing up complex, abstract or hypothetical information. I accept the submission on behalf of the Official Solicitor that the weighing up of the relevant information should be seen as a relatively straightforward decision balancing the risks of ill-health (and possible pregnancy if the relations are heterosexual) with pleasure, sexual and emotional brought about by intimacy. There is a danger that the imposition of a higher standard forcapacity
may discriminate against people with a
mental
impairment."
In Re JB, Baker LJ at [96] noted that decisions about sexual relations are not exclusively visceral or emotional, but he did not otherwise qualify or disapprove the guidance cited above.
The Evidence
"In my opinion, [DY] lackscapacity
to consent to sex, due to an inability to understand some of the relevant information, namely that consent is required both within and outside of a relationship. She has a good knowledge of consent within a relationship but didn't appear to understand consent outside of a relationship. I also have concerns that she would not be able to
use
or
weigh
any information about
capacity
if she weren't in a relationship. She has previously shown a desperation to be loved and in a relationship which is a consequence of her disordered attachment and experience of trauma. As with decisions about contact, [DY] appears to have no understanding that she has the same rights as others, and that she would be able to say no to someone if she did not want to have sex with them (if she were not in a relationship). The only reason [DY] could think of for not having sex with other people was because she is currently in a relationship. She appears to place more weight on being in a relationship than in her autonomy and ability to say no to others.
[DY] is cognitively able to understand the relevant information, however her disordered attachment and complex trauma prevent her from being able touse
the information. Therefore, sex education on its own is unlikely to lead to her being able to gain
capacity
to consent to sex. It is crucial that [DY] receives therapy in developing a sense of self and assertiveness that would then enable her to make decisions to keep herself safe. This is a long piece of work and is unlikely to lead to [DY] gaining
capacity
within a practicable timescale for the current hearing. I would hope that [DY] would be able to gain
capacity
in this area and would recommend a reassessment of
capacity
following work on assertiveness and keeping herself safe. I would envisage this taking approximately a year or two, however this depends on the availability of a therapist experienced in trauma with people with an LD, the skill of therapist and [DY's] engagement. DY could easily learn to say that she could say no outside of a relationship, however I do not believe she would easily be able to
use
this information after she had learned it. Any further assessment of
capacity
will therefore need to be carried out by an experienced assessor with a knowledge of trauma and disrupted attachment."
Discussion
Conclusion