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London Borough of Tower Hamlets v NB (consent to sex) [2019] EWCOP 27

Court of Protection case regarding the capacity of a wife to consent to sexual relations with her husband of 27 years.

The case concerns the capacity of an individual ("NB") to consent to sexual relations. NB and her husband had been married since 1992 and had one daughter together.

Hayden J had previously refused to make an order by consent and instead adjourned the matter for full argument. In [2019] EWCOP 17 Hayden J delivered an interim judgment. The Court and the parties then became aware that the Court of Appeal was considering issues relating to capacity to consent to sexual relations in another case and so it was agreed that it was appropriate to await that judgment before determining the current application. The Court of Appeal delivered judgment in B v A Local Authority [2019] EWCA Civ 913 and the parties made further written submissions.

The case has previously received much media attention. Hayden J has previously (and repeats herein) set out his concern as to the nature of the media attention received, and the impact of that attention on the parties (particularly the husband).

This judgment is, essentially, Hayden J's consideration of those written submissions and observations on the applicable test(s). No final conclusion is reached and no decision as to whether or not any declarations etc. should be made. The judgment considers the applicable statute and case law in detail.

Hayden J, at length, explores the question of whether a test that is issue-specific (or act specific) can be tailored to consider specific circumstances of the individuals before the Court e.g. in a case where the parties cannot have children or there is no risk of sexually transmitted diseases.

The Judge comments on the "omnipresent danger in the Court of Protection" that in emphasising the need to protect the incapcitous, sight is lost of the "fundamental principle that the promotion of autonomous decision making is itself a facet of protection". The Judge notes that it is important to recognise relationships are driven as much by instinct and emotion as by rational choice and it is therefore "artificial, at best, to extract both instinct and emotion from an evaluation of consent to sex, they are intrinsic to the act itself." As such "To establish an inflexible criterion to what may properly constitute 'consent' risks imposing a rationality which is entirely artificial."

The Judge continues "It also needs to be emphasised that the law does not identify the criterion which are being considered here. The MCA 2005, in some ways like the Children Act 1989, is a distillation of principles which require to be applied in the context of a careful balance, one in which proportionality of intervention will always be an indivisible feature. Much of the applicable criteria concerning assessment of capacity, across a broad range of decisions, finds its way into this process via the conduit of expert evidence. This is all profoundly helpful to the practitioners and the professionals but the danger is that conceptual silos are created which fail to appreciate the individual and the infinite variety of people's lives."

He continues "It is important to identify that depriving an individual of a sexual life in circumstances where they may be able to consent to it with a particular partner, is not 'wrapping them up in cotton wool'. Rather, it is depriving them of a fundamental human right. Additionally, I repeat, AU's Article 8 rights are also engaged in this context. He too has a right to a sexual life where there is true consent and mutual desire."

The Judge comments that in cases such as these generally the relevant tests for capacity are framed by experts and "a practice has developed of applying these tests as if they had the force of statute." Rather it is the Judge who evaluates the broad canvas of evidence to determine the question of capacity i.e. it is judges not experts who decide the issues.

Considering the history of the case law Hayden J comments that "the Courts have repeatedly emphasised that the tests are to be applied in a way which focus upon P's individual characteristics and circumstances. Whilst it is difficult to contemplate many heterosexual relationships where a failure to understand a risk of pregnancy or sexual disease (consequent upon sexual intercourse) will permit a conclusion that P has capacity, it should not be discounted automatically. This is to elevate the expert guidance beyond its legitimate remit." "Attributing to expert evidence the status of legislative authority serves also to deprive it of its own intellectual energy and inevitably, in due course, some of its forensic utility."

It was therefore submitted on behalf of the official solicitor that "the Court should identify a category of individuals for whom pregnancy and sexually transmitted disease will not require assessment." And that it was "incumbent on the Court to specify how those undertaking the assessment are to approach that preliminary question." However, Hayden J refuses and comments that this "is only likely to overburden the test and to introduce unnecessary technicalities."

Hayden J emphasises that "the tests require the incorporation of P's circumstances and characteristics. Whilst the test can rightly be characterised as 'issue specific', in the sense that the key criteria will inevitably be objective, there will, on occasions, be a subjective or person specific context to its application."

Going further the Judge notes "That there is no need to evaluate an understanding of pregnancy when assessing consent to sexual relations in same sex relationships or with women who are infertile or post-menopausal strikes me as redundant of any contrary argument. Nor, with respect to what has been advanced in this case, can it ever be right to assess capacity on a wholly artificial premise which can have no bearing at all on P's individual decision taking. It is inconsistent with the philosophy of the MCA 2005."

Finally, Hayden J opines "we must be vigilant to ensure that the applicable tests do not become a tyranny of sameness, in circumstances where they are capable of being applied in a manner that may properly be tailored to the individual's situation."

Case summary by Luke Eaton, barrister, 1GC

Full judgment London Borough of Tower Hamlets v NB (consent to sex) [2019] EWCOP 27 on BAILII