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England and Wales Court of Protection Decisions
You are here: BAILII >> Databases >> England and Wales Court of Protection Decisions >> D Borough Council v AB (Rev 1)  EWCOP 101 (28 January 2011)
Cite as:  Fam 36,  EWCOP 101,  EWHC 101 (Fam),  3 All ER 435,  2 FLR 72,  Med LR 499,  3 WLR 1257,  3 FCR 62,  EWHC 101 (COP)
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Newcastle-upon-Tyne, NE1 3LA
B e f o r e :
| D Borough Council
- and -
Mr Vikram Sachdeva (instructed by Irwin Mitchell, on behalf of the Official Solicitor) for the Respondent
Hearing date: 24 January 2011
Crown Copyright ©
Mr Justice Mostyn:
i) On 12 September 2008 a young boy in a dentist's waiting area observed a man touching his groin, licking his lips and was then asked by the man for his name. The dentist's diary showed that Alan was due for an appointment at that time.
ii) On 10 September 2008 two girls aged 9 and 10 stated that when travelling on a bus a man had commented upon their physical appearance, touched their upper legs and then attempted to look up their skirts. The police were notified. On 4 October 2008 these two girls were travelling on the bus once again, as was Alan. The girls notified the bus driver who also notified the police. Alan was then taken to the police station and questioned. However, the police decided that no further action should be taken against him.
i) Re E (an Alleged Patient); Sheffield City Council v E and S  EWHC 2808 (Fam),  Fam 326,  1 FLR 965,
ii) X City Council v MB, NB and MAB (by his Litigation Friend the Official Solicitor)  EWHC 168 (Fam),  2 FLR 968.
iii) Local Authority X v MM and KM  EWHC 2003 (Fam),  1 FLR 443.
Each of these cases was, however, decided before the coming into force of the Mental Capacity Act 2005 ("MCA") on 1 October 2007. Moreover, the test propounded by Munby J was forcefully doubted in some obiter comments by Baroness Hale of Richmond in the House of Lords' decision of R v Cooper  UKHL 42  1 WLR 1786. It is now said that the law is in a state of confusion. Recently in D County Council v LS  EWHC 1544 (Fam) Roderic Wood J attempted a reconciliation of the competing views.
I may say this much in the outset, that it appears to me that the contract of marriage is a very simple one, which does not require a high degree of intelligence to comprehend. It is an engagement between a man and woman to live together, and love one another as husband and wife, to the exclusion of all others. This is expanded in the promises of the marriage ceremony by words having reference to the natural relations which spring from that engagement, such as protection on the part of the man, and submission on the part of the woman.
Although reams have been written on the subject this simple proposition has never been doubted, but, rather, has been reaffirmed time and again. To enter into a marriage the bar of intelligence and understanding is set low.
On this part of the case accordingly I conclude that there is no statutory provision which compels me to hold that a girl under the age of 16 lacks the legal capacity to consent to contraceptive advice, examination and treatment provided that she has sufficient understanding and intelligence to know what they involve.
(1) that the girl (although under 16 years of age) will understand his advice;
(2) that he cannot persuade her to inform her parents or to allow him to inform the parents that she is seeking contraceptive advice;
(3) that she is very likely to begin or to continue having sexual inter-course with or without contraceptive treatment;
(4) that unless she receives contraceptive advice or treatment her physical or mental health or both are likely to suffer;
(5) that her best interest require him to give her contraceptive advice, treatment or both without the parental consent.
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.
 I should add just one observation. Questions of capacity are always 'issue specific': Sheffield City Council v E. The question of whether someone has capacity to marry is not the same as the question whether that person has capacity to consent to sexual relations. The two questions have to be considered separately. That said, since a sexual relationship is, generally speaking, implicit in any marriage, it must follow that, generally speaking, someone who lacks the capacity to consent to sexual relations will for that very reason necessarily lack the capacity to marry. The converse, of course, is not necessarily true. Someone may have the capacity to consent to sexual relations whilst lacking the capacity to marry.
And in Local Authority X v MM and KM he stated:
 When considering capacity to marry, the question is whether X has capacity to marry, not whether she has capacity to marry Y rather than Z. 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: Re E (an Alleged Patient); Sheffield City Council v E and S  EWHC 2808 (Fam),  Fam 326,  1 FLR 965, at paras –. 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 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 consent 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: see X City Council v MB, NB and MAB (by his Litigation Friend the Official Solicitor)  EWHC 168 (Fam),  2 FLR 968, at para . 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.
 In my judgment, this decision of the Supreme Court of Victoria stands as an essentially correct summary and statement of the common law rule. 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.
. … Therefore for 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 the capacity to choose whether or not to engage in it, the capacity to decide whether to give or withhold consent to sexual intercourse (and, where relevant, to communicate their choice to their spouse)?
 As we have seen, amongst the questions on which Dr Land was asked to advise in this case was whether MAB has the capacity to consent to sexual relations. In responding to that question Dr Land treated the model set out in Re MB (Medical Treatment)  2 FLR 426 as providing what he called 'an appropriate framework'. I do not in any way criticise him for doing so, because his letter of instructions contained no guidance for him on the point. Applying the approach in Re MB, Dr Land asked himself what information might be relevant to making a decision about embarking on sexual activity. His answer was:
'Such information might include basic knowledge about the risks of pregnancy, sexually transmitted diseases; some understanding of what is involved in sexual activity; and an understanding of the nature of the relationship they have with the other party.'
Applying that approach, Dr Land's conclusion, as we have seen, was that MAB lacks the capacity to consent to sexual relations, not having, in his view, even a rudimentary understanding of the practical issues of human reproduction.
 … I have absolutely no quarrel with the substance of the approach which Dr Land adopted. The matters which he considered in the passage from his report which I have quoted in para 86 above are precisely the kind of matters which I would expect to be considered in this context."
For capacity to consent to sex to be present the following factors must be understood:
1. The mechanics of the act
2. That only adults over the age of 16 should do it (and therefore participants need to be able to distinguish accurately between adults and children)
3. That both (or all) parties to the act need to consent to it
4. That there are health risks involved, particularly the acquisition of sexually transmitted and sexually transmissible infections
5. That sex between a man and a woman may result in the woman becoming pregnant
6. That sex is part of having relationships with people and may have emotional consequences
(1) The following principles apply for the purposes of this Act.
(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.
By s 2 it is provided:
People who lack capacityE+W
(1) For the purposes of this Act, 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 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 of capacity 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 behaviour, which might lead others to make unjustified assumptions about his capacity.
(4) In proceedings under this Act or any other enactment, any question whether a person lacks capacity within the meaning of this Act must be decided on the balance of probabilities.
By s3 it is provided:
Inability to make decisionsE+W
(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) 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).
(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.
1. A person (A) commits an offence if:
(a) he intentionally touches another person (B),
(b) the touching is sexual,
(c) (B) is unable to refuse because of or for a reason related to a mental disorder, and
(d) (A) knows or could reasonably be expected to know that (B) has a mental disorder and because of it or for a reason related to it (B) is likely to be unable to refuse.
2. (B) is unable to refuse if:
(a) 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), or
(b) he is unable to communicate such a decision to (A)
24. My Lords, I have no doubt that the answer to questions (a) and (b) is "yes". The Court of Appeal acknowledged that this was a difficult area and they were, in my view, unduly influenced by the views of Munby J in another context. I am far from persuaded that those views 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": see Re C (Adult: Refusal of Treatment)  1 WLR 290, 295, approved in Re MB (Medical Treatment)  2 FLR 426. In Re C, the patient's persecutory delusions might have prevented him from weighing the information relevant to having his leg amputated because of gangrene, which he was perfectly capable of understanding, but they did not. But in NHS Trust v T (adult patient: refusal of medical treatment)  EWHC 1279 (Fam),  1 All ER 387, 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 (para 63). In the same way, a person's delusions that she was being commanded by God to have sexual intercourse, an act which she was perfectly capable of understanding, might make her incapable of exercising an autonomous choice in the matter.
25. However, it is not for us to decide whether Munby J was right or wrong about the common law. The 2003 Act puts the matter beyond doubt. 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" (s 30(2)(a)). Provided that the inability to refuse is "because of or for a reason related to a mental disorder" (s 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 Re MB) or a blood transfusion (as in NHS Trust v T).
26. The 2003 Act also makes it clear that the question is whether the complainant has the capacity to choose whether to agree to "the touching", that is, the specific act of sexual touching of which the defendant is accused. It is, perhaps, easier to understand how the test of capacity might be "act specific" but not "person specific" or "situation specific" if intellectual understanding were all that was required. The complainant here did know what a "blow job" was. Even then, it is well accepted that capacity can fluctuate, so that a person may have the required degree of understanding one day but not another. But that is because of a fluctuation in the mental disorder rather than a fluctuation in the circumstances. Once it is accepted that choice is an exercise of free will, and that mental disorder may rob a person of free will in a number of different ways and in a number of different situations, then a mentally disordered person may be quite capable of exercising choice in one situation but not in another. The complainant here, even in her agitated and aroused state, might have been quite capable of deciding whether or not to have sexual intercourse with a person who had not put her in the vulnerable and terrifying situation in which she found herself on 27 June 2007. The question is whether, in the state that she was in that day, she was capable of choosing whether to agree to the touching demanded of her by the defendant.
27. 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 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 on Human Rights. The object of the 2003 Act 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.
37 It is not for me to second-guess what conclusions the Supreme Court (as it now is) might come to if the old common-law decisions under the inherent jurisdiction were reviewed by them in the light of the above recorded observation made by Baroness Hale. Nor is it necessary for me to attempt to interpret, and decide upon, whether or not phrases used by Munby J. in MAB (paragraph 74) and MM (paragraph 87) (see for example the words emphasised in citation in paragraph 13 above) indicated that, to his mind, the test now contained in section 3 (1) (c) of the 2005 Act was considered by him (albeit he expressed his reflections, if made, in succinct form) to be a necessary part of any test of capacity in relation to the two issues of sexual relations and marriage.
38 I have decided that such an exercise is unnecessary because, in my judgment, the observations of Baroness Hale in paragraphs 24 to 28 in particular of the judgment in R v C (but in the context of the whole of her judgment) are, though framed in terms of an analysis of the relevant aspects of the SOA 2003, so self-evidently of wide application in considering questions of capacity in the civil as well as the criminal context that it is impossible for me to come to any other conclusion than that the approach adopted in those paragraphs of R v C apply to questions of the capacity, or lack of it, to make decisions on the issue of sexual relations (and indeed of marriage), in both the civil and the criminal arena and, in particular, are, in my judgment, wholly consistent with the statutory requirements of section 3 of the 2005 Act.
39 In other words the above approach accommodates the need to "understand the information relevant to the decision", retention of that information for a necessary period, and the requirement "to use or weigh that information as part of the process of making the decision ……" required by section 3 (1) of the 2005 Act.
40 In considering these matters all counsel emphasised, and I agree, that it is necessary to discriminate between those matters which go directly to a person's capacity (or impeded capacity, or lack of capacity) to make a choice, and those matters which can only be relevant to a "best interests" decision. What is necessary is that the particular sexual partner (to continue this illustration) 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. See, for example, the plight of the victim in R v C.
41 Further illustrations of this proposition may be seen in the cases of a lack of capacity to consent based upon an irrational fear; for examples of which see paragraph 24 of the decision in R v C, and the references to NHS Trust v T (Adult Patient: refusal of Medical Treatment)  1 AER 387, and Baroness Hale's own example at the conclusion of that paragraph.
42 These types of impediment which affect mental functioning to the extent of undermining the ability to make a capacitous decision must be carefully distinguished from a person's specific features which do not undermine capacity in the same way. Another person's view of the suitability of a particular sexual partner for the person whose capacity is being considered is irrelevant to the determination of whether or not that person has capacity. To take account of such a feature in determining capacity would be risking the importation of "best interests," and runs directly counter to section 1 (4) of the 2005 Act ["a person is not to be treated as unable to make a decision merely because he makes an unwise decision"]. Furthermore, as Baroness Hale pointed out in R v C, to apply such a consideration to the determination of capacity would be, as Miss Greaney also observed in her submissions to me, a gross failure to respect a person's autonomy, protected by Article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950 in relation to one of the most intimate and personal aspects of their private life.
43 For the avoidance of doubt, it seems to me (approaching the issue of capacity to consent to marriage on the conventional assumption that almost invariably, but not inevitably, contemplation of marriage includes contemplation of sexual relations within marriage) the above approach has relevance to the issue of capacity to consent to marriage; but the application of the above test is not dependent upon there being such a contemplation of sexual relations.
- The mechanics of the act
- That there are health risks involved, particularly the acquisition of sexually transmitted and sexually transmissible infections
- That sex between a man and a woman may result in the woman becoming pregnant
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.
The question here is whether further steps of a sex-educative nature should be taken to try to bring Alan up to the requisite level of capacity so that the present régime of deprivation of liberty can, at least regards sex, be lifted.
i) the declarations I have made be of an interim nature;
ii) the local authority do provide Alan with sex education in the hope that he thereby gains that capacity; and
iii) the matter be returned to Court after a period of nine months for a review in order to see what progress the education is making, with a view to making final declarations at that point.
Note 1 In Canon Law failure to consummate, of itself, is not a ground for nullity, as the principle established at least since the Council of Tribur in the 9th century is thatconsensus non concubitus facit matrimonium. Failure to consummate is however one of the (very few) grounds available for a papal dissolution of the bond: see Code of Canon Law (1983), canon 1142. That said, a marriage entered into by a party with an intention contra bonum proles has long been avoidable on the ground of defective consent. [Back] Note 2 where both John and Jim are themselves of capacity. [Back]
Note 1 In Canon Law failure to consummate, of itself, is not a ground for nullity, as the principle established at least since the Council of Tribur in the 9th century is thatconsensus non concubitus facit matrimonium. Failure to consummate is however one of the (very few) grounds available for a papal dissolution of the bond: see Code of Canon Law (1983), canon 1142. That said, a marriage entered into by a party with an intention contra bonum proles has long been avoidable on the ground of defective consent. [Back]
Note 2 where both John and Jim are themselves of capacity. [Back]