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Court of Protection Update (August 2014)

In this update Sally Bradley and Julia Townend, barristers of 4 Paper Buildings, focus on developments in the law concerning capacity to consent to sexual relations.

Sally Bradley, barrister, 4 Paper Buildings 

Sally Bradley and Julia Townend, barristers, 4 Paper Buildings

This Court of Protection update will focus on the area of capacity to consent to sexual relations, an issue not expressly covered by the Mental Capacity Act 2005. There has been an interesting flurry of decisions in this area and this article seeks to provide an overview of how the case law has developed. Most recently, the Court of Appeal in IM v LM, AB & Liverpool City Council [2014] EWCA Civ 37 has helped clarify the law, settling the pre-existing conflict between the civil and criminal jurisdictions. 

Civil/COP jurisdiction: Local Authority X v MM & KM [2007] EWHC 2003 (Fam); [2009] 1 FLR 443

The issue in Local Authority X v MM & KM was whether MM, who suffered from paranoid schizophrenia and a moderate learning disability and was sexually active (and in a sexual relationship with her partner of 15 or so years, an individual suffering from a psychopathic personality disorder), could be safeguarded from potential sexual exploitation through appropriate care planning.

Munby J (as he then was) held that MM did have capacity to consent to sexual relations and was entitled to continue her sexual relationship in a dignified manner through an appropriate care plan. He likened the test for determining capacity to consent to sexual relations to the test of capacity to consent to marry and concluded that it is a question directed to the nature of the activity as opposed to the identity of the partner. He said at paragraphs 86 and 87 of the judgment:

"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: Sheffield City Council v E [2004] EWHC 2808 (Fam), [2005] Fam 326, at paras [83]-[85]. 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) [2006] EWHC 168 (Fam), [2006] 2 FLR 968, at para [84]. 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."

Thus Munby J clearly specified that capacity to consent to sexual relations is issue-specific and not person-specific, and depends on a person having all of the following:

(a) Sufficient understanding and knowledge of:

i. The sexual nature and character of the act; and

ii. The reasonable foreseeable consequences of it.

(b) The capacity to choose whether or not to engage in it.

(c) The capacity to decide whether to give or withhold consent.

Criminal jurisdiction: R v C [2009] UKHL 42

The issue again arose in the criminal case of R v C [2009] UKHL 42. Section 30 of the Sexual Offences Act 2003 provides for the offence of engaging in sexual activity with a person with a mental disorder impeding choice. 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 that because of it or for a reason related to it B is likely to be unable to refuse.

B is unable to refuse if:

i. 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

ii.  he is unable to communicate such a choice to A.

In such cases a jury can take into account the following factors in relation to the defendant: his behaviour, his identity and his characteristics. Baroness Hale considered the common law definition of capacity and concluded that a wider definition of capacity was an essential element of the Sexual Offences Act 2003, stating at paragraph 27 that:

" 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 place."

Resolving the conflicting approaches: D Borough Council v AB [2011] EWHC 101 (Fam); [2011] 2 FLR 72

The conflicting approaches within the civil/COP and criminal jurisdictions were considered by Mostyn J in D Borough Council v AB [2011] EWHC 101 (Fam); [2011] 2 FLR 72. It was held that capacity to consent to sexual relations was act-specific and the existing test applied by the Court of Protection was not affected by the obiter comments of Baroness Hale in the House of Lords. An individual would have capacity where they had sufficient rudimentary knowledge of the sexual act to then give or withhold consent. It was said to be important that the test was not too complex and did not require too much enquiry. Mostyn J rejected the joint experts' proposal that there should be included within the test a requirement that both parties must consent to it and have an understanding that sex is part of relationships with emotional consequences. The local authority's submission that personality and characteristics of the sexual partners were relevant was also rejected.

Mostyn J held that it was sufficient for the individual to understand:

(a) The mechanics of the act;

(b) That there are health risks involved, particularly the acquisition of sexually transmitted and sexually transmissible infections; and

(c) That sex between a man and a woman may result in the woman becoming pregnant.

Mostyn J thus lowered the threshold and confirmed the act-specific as opposed to the person-specific test.

Revisiting the issue: IM v LM, AB & Liverpool City Council [2014] EWCA Civ 37

The Court of Appeal revisited the principles in IM v LM, AB & Liverpool City Council [2014] EWCA Civ 37 in which the main issue was whether LM had capacity to make a decision when facing pressure from other sources. LM had suffered from drug and alcohol problems. She was 37 years old and had convictions for prostitution. Her three children were in the care of their grandmother. During a hospital admission where LM was being treated for excessive alcohol misuse she suffered a cardiac arrest followed by hypoxic brain injury which resulted in amnesia (albeit she enjoyed some periods of lucidity). Whilst she recovered to some extent it was not disputed that she lacked the relevant capacity to make decisions about residence, care and her contact with others.

LM's partner, AB, had been banned from seeing her when she was in hospital. He had a significant criminal record. He had issued proceedings in the Court of Protection asserting that it was in LM's best interests for her to have contact with him. At first instance Jackson J considered that the measures in place regarding LM's residence and contact were sufficient to safeguard her wellbeing. He did not follow the expert evidence and stated that as LM had a general understanding of sex, a declaration could be made that she had the capacity to consent to sexual relations. In his view she understood, in broad terms, the nature of the act; and he felt that there was insufficient evidence to rebut the presumption of capacity. He held that whilst she possessed a weak understanding that did not mean that she lacked capacity.

LM's mother appealed, arguing that the judge had not adopted a person-specific approach and had he done so he would not have concluded that LM had capacity to consent to sexual relations. The proposal was that LM's contact with AB should be restricted so as to prevent any sexual relationship resuming (they had been in a sexual relationship before her cardiac arrest and resulting brain injury).

The issue in the case was aptly summarised in the opening to the Court of Appeal judgment:

"When is it appropriate for society to intervene paternalistically in a decision or decisions that individuals make as to their sexual relations?"

The Court of Appeal upheld Jackson J's decision and confirmed that the answer to this question depends on whether the decision being made falls within the civil or criminal jurisdiction. It was held that Jackson J's approach was the right one right one in respect of the Court of Protection and the civil jurisdiction.

The Court of Appeal considered the divergent opinions of Baroness Hale and Munby J as to whether consent is person-specific or act-specific. It was determined that both were right in that in a criminal context the focus is on person, time, place whereas in the civil context in the Court of Protection the test is general and not person- or situation-specific. The Court of Appeal held that whilst Baroness Hale's view was not binding, it had very real influence and further that it would be 'totally unworkable' to insist the test was person-specific. It was suggested that "capacity to consent to future sexual relations can only be assessed on a general and non-specific basis". The Court of Appeal, in reconciling the differences, stated that the different approaches were "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."

The Court of Appeal held that to make an assessment on a person-specific element would be "totally unworkable" and that "capacity to consent to future sexual relations can only be assessed on a general and non-specific basis".

On appeal it was also highlighted that a person without capacity should not be placed under a greater burden to consider the consequences of sexual relations than a person who has capacity (and would rarely consider a large amount of information before deciding to consent to sexual relations). Effectively an incapacitated person should not be overprotected but should be entitled to make mistakes and poor choices in the same way as all other human beings.

A Local Authority v TZ (No 2) [2014] EWHC 973 (COP)

In A Local Authority v TZ (No 2) [2014] EWHC 973 (COP), TZ, aged 24 years, who suffered from mild learning disabilities, atypical autism, hyperactivity disorder and did not have the capacity to litigate sought determination of the issue as to whether he had the capacity to consent to and engage in sexual relations. He was homosexual, did not have an identified partner but wanted to enjoy sexual relations. The parties agreed with Baker J to adjourn the case until the Court of Appeal decision in IM v LM and, AB & Liverpool City Council [2014] EWCA Civ 37 had been handed down.

The Court of Appeal in that decision in fact confirmed Baker J's interpretation in relation to capacity to consent to sexual relations, adopting an act-specific approach. He held that there had to be respect for autonomy in matters of private life, particularly in the context of the Mental Capacity Act 2005 including the presumption of capacity and the obligation to take all practical steps to enable a person to make a decision and that "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" (paragraph 23).

In determining what orders were necessary Baker J held the following (paragraph 46 onwards):

"in applying the principle in s.1(6) and generally, the Court must have regard to TZ's human rights, in particular his rights under article 8 of ECHR to respect for private and family life. As the European Court of Human Rights observed in Niemitz v Germany (1993) 16 EHRR 97 at para 29, 'private life' includes, inter alia, the right to establish relationships with other human beings. This has been reiterated on a number of occasions, see for example Pretty v UK (2002) EHRR 1 at paragraph 61 and in Evans v UK (2008) 46 EHRR 34 at paragraph 71. There is a positive obligation on the state to take measures to ensure that his private life is respected, and the European Court has stated that 'these obligations may involve the adoption of measures designed to secure respect for private life even in the sphere of the relations of individuals between themselves': Botta v Italy (1998) 26 EHRR 241 paragraph 33.

"47. These principles plainly apply when considering what steps should be taken to protect someone, such as TZ, who has the capacity to consent to sexual relations but lacks both the capacity to make a decision whether or not an individual with whom he may wish to have sexual relations is safe and the capacity to make a decision as to the support he requires when having contact with such an individual. In such circumstances, the state through the local authority is under a positive obligation to take steps to ensure that TZ is supported in having a sexual relationship should he wish to do so.

"48. In passing, it should be noted that this is consistent with the provisions of the United Nations Convention on the Rights of Persons with Disabilities, (ratified by the UK in 2009 although not yet incorporated into English law) and in particular article 23 which requires states to 'take effective and appropriate measures to eliminate discrimination against persons with in all matters relating to marriage, family, parenthood and relationships, on an equal basis with others'."

Conclusion: pulling the strands together

The cases relating to LM and TZ as explored above have sought to provide clarity on this issue, making it clear that those who have disabilities should be allowed to experience sexual relations and the consequential mistakes of such relationships in the same way that others do. When considering the issue an appropriate balance needs to be struck between the exercise of freedom of choice and protection from sexual exploitation.