username

password

image of 4 Paper Buildings logoCoram ChambersFamily Law Week Email SubscriptionAlpha BiolabsGarden Court1 Garden Courtsite by Zehuti

Home > Judgments

B v A Local Authority [2019] EWCA Civ 913

An appeal and cross appeal following the judgment of Cobb J in the Court of Protection, in which he made declarations regarding the mental capacity of the subject, B, to make decisions to use social media, consent to sexual relations and to decide where she resides. Decision: The OS’s appeal was dismissed and the Local Authority’s appeal was allowed on the basis that there was a direct conflict between the decision made as to B’s capacity in some respects and lack of capacity to make decisions in others.

Summary of Background
The Local Authority applied for declarations in respect of B, a 31 year old woman who lived at home with her parents with occasional respite care and some community support and who was assessed as requiring support to maintain her safety when communicating with others. B frequently used social media to search for potential boyfriends and engage in "sex chats" which led her to meet Mr C, who has convictions for multiple sex offences and is the subject of a Sexual Harm Prevention Order, despite which B did not accept he posed a risk and maintained regular contact with him, including staying overnight, and expressed her intention to live with him and have his baby.

This prompted the Local Authority to apply for declarations that B lacked capacity to litigate, consent to sexual relations, and to make decisions as to her contact with others. Subsequently, the court was also asked to, and did, impose an interim injunction on Mr C to prevent him contacting B which he was later found to have breached leading to him receiving a suspended custodial sentence.

On 21 February 2019, Cobb J made declarations in relation to B's ability to make decisions about her residence, care, contact with others, sexual relations and social media usage referring to the relevant sections of the MCA which he observed produced anomalous results in so far as this meant that B could be assessed as having capacity in relation to one matter but not another. In reaching his decision, Cobb J relied upon the judgment of Theis J, in LBX v K, L, M [2013] EWHC (Fam) in which she sets out lists of information to be referred to when making decisions about a person's capacity to make decisions and his own judgment in Re A [2019] EWCOP 2.

Cobb J concluded that B did have capacity to make decisions in relation to her residence having referred to the list of relevant information that B would need to be able to understand, retain and use / weigh in order to do so as set out by Theis J (at [43]) in LBX.

By contrast, having referred to the list of information set out at [29] in LBX, Cobb J determined that B lacked capacity to make decisions about her care and that further education would not assist her in understanding her care needs, before making a declaration under section 15.

Regarding B's capacity to make decisions about contact, Cobb J, again, referred to LBX and the list of information to be considered set out therein before concluding that B lacked capacity to make such decisions and made a declaration of incapacity under section 15 on the basis that no amount of practicable help was likely to enable her to make capacitous decisions in this respect.

Cobb J referred to his own judgment in Re A to consider B's capacity to decide to use social media, the subject in Re A being distinguishable from B in that he also used social media to access paedophilic material. Cobb J repeated his list of relevant information for assessing capacity to make decisions in social media as set out in Re A (at [39]), and having applied done so, concluded that B did not currently have capacity to decide to use social media in order to make connections with others but only made an interim declaration under section 48 on the basis that B should be offered practicable help in order to assist her in acquiring the capacity to do so.

As to B's capacity to make decisions as to sexual relations, Cobb J applied the following list of relevant information to consider:

i) the sexual nature and character of the act of sexual intercourse, the mechanics of the act;

ii) the reasonably foreseeable consequences of sexual intercourse, namely pregnancy;

iii) the opportunity to say no; i.e. to choose whether or not to engage in it and the capacity to decide whether to give or withhold consent to sexual intercourse;

iv) that there are health risks involved, particularly the acquisition of sexually transmitted and transmissible infections;

v) that the risks of sexually transmitted infection can be reduced by the taking of precautions such as the use of a condom.

and found that B had an adequate understanding in relation to (i) – (iii), but that her understanding was "fundamentally flawed" in respect of (iv) and (v) as she regarded this to be a "matter of hygiene". Accordingly, he concluded that she, therefore, lacked capacity to make decisions as to sexual relations but only made an interim declaration under s.48 as there was evidence that she previously had capacity in this respect and directed that B receive education about the risks of STIs and be reassessed thereafter.

The Grounds of Appeal
The OS's grounds 1 and 2 were summarised as being that:

"Cobb J erred in his formulation of the relevant information which B needs to be able to understand, retain and use or weigh for the purposes of making the decision to use social media and the internet by importing limbs (iii) (offence to others by sharing media) and (vi) (potential to commit crimes by sharing media) from the case of Re A when they were irrelevant to B's case. In so doing, he failed to strike an appropriate balance between protecting incapacitous individuals, and protecting their personal autonomy"

And Ground 3 was deemed to be that:

"Cobb J erred in his formulation of the relevant information which B needs to understand, retain and weigh in order to have the capacity to consent to sexual relations by importing limbs (iii) (right to say no) and (v) (prevention of sexually transmitted infections by use of a condom)."

The local authority cross-appealed on the following six grounds:

"Ground 1: Cobb J reached a decision that B had capacity to make her own decisions about residence without following the steps required in the statutorily mandated decision making process; in particular, by failing to address the questions of whether B had the ability to understand, retain and use or weigh the relevant information, and by failing to address whether B was engaging with support offered to her to outline the risks of living with Mr C.

Ground 2: Cobb J failed to identify all of the foreseeable consequences of B going to live with Mr C.

Ground 3: Cobb J wrongly treated the question as to whether B had capacity to make decisions about (a) care services; (b) who she should have contact with; (c) her access to social media; and (d) sexual relations with Mr C or others as not being relevant information in relation to the decision about residence in this case.

Ground 4: Cobb J wrongly treated the list of relevant information identified in LBX as being an exclusive list of factors and thus failed to take account of other information which he ought to have treated as relevant.

Ground 5: Cobb J erred in holding that B understood, in broad terms, the care she would receive when living with Mr C. This conclusion was contrary to the evidence before the Judge, and he gave no reasons for departing from it.
Ground 6: Cobb J reached contradictory conclusions in relations to B's capacity to make decisions about residence and her capacity to make decisions in relation to care, contact, social media and sexual relations.

The Decision
At [36] the court reiterates that the MCA ss1-3 make clear that determination of capacity is "decision-specific" as per York City Council v C [2013] EWCA Civ 478, [2014] 2 WLR 1, at [35], endorsed in IM v LM [2014] EWCA Civ 37 at [51], and that a "functional" as opposed to an "outcome" approach is to be taken. The court also emphasised the importance of taking care not to discriminate against persons suffering from a mental disability by imposing too high a test of capacity.

Capacity to decide to use social media
The OS objected to Cobb J's direct importation of the list of information to be considered as applied by him in Re A on the basis that the cases were factually different making some of the information considered in that case, irrelevant to B. In doing so, the OS's counsel proposed an alternative list of 3 matters for consideration as an alternative approach to that espoused by Cobb J in Re A. 

As the OS was appealing on the basis of Cobb J's reasoning and not his findings or his order, the only issue was the relevant information to be considered when determining capacity to decide to use social media. The court, therefore, focused upon Cobb J's list and his elaboration of the list (at [29]) in Re A and the OS's proposed alternative list of three questions and concluded that there was no "particular advantage to the tripartite formulation proposed on behalf of the OS as Cobb J's list [44]: "is to be treated and applied as no more than guidance to be adapted to the facts of the particular case".

Capacity to consent to sexual relations
The OS submitted that Cobb J's decision was flawed as he had taken irrelevant matters into account; objecting to three of the five relevant matters that he concluded should be taken into consideration on the basis that points (iii)- (v) in particular are "inapposite in all cases" those points being:

"(iii) the opportunity to say no; i.e. to choose whether or not to engage in it and the capacity to decide whether to give or withhold consent to sexual intercourse." 

"(iv) that there are health risks involved, particularly the acquisition of sexually transmitted and transmissible infections;"

"(v) that the risks of sexually transmitted infection can be reduced by the taking of precautions such as the use of a condom."

The court notes that a final decision is awaited from Hayden J in London Borough of Tower Hamlets v NB [2019] EWCOP 17 in respect of the test to be applied, and that, it was not otherwise disputed that the test for capacity to consent to sexual relationships is general and issue specific, rather than person or event specific [49].

At [51] in respect of matter (iii), the court observes that the conclusion of Parker J that "awareness of the ability to consent to or refuse sexual relations is more than just an item of relevant information" in The London Borough of Southwark v KA [2016] EWCOP 20 (at [52]), is "plainly correct" and irrelevant to B in any event on the basis of her deemed understanding of this.

The court went on to dismiss the OS's third ground of appeal having rejected their contention that matter (iv) was incorrect in that the authorities only require there to be an appreciation of a connection between sexual intercourse and a potential risk to health. In doing so, the court deemed the OS's position on point (iv) to be connected to their objection to matter (v) [56], and reiterated what is stated at s 3(4) of the MCA and in para 4.16 of Chapter 4 of the Code of Practice and (at [57]), before observing that:

"…in accordance with the MCA s.3(1)-(4), the ability to understand and retain those facts at least for a period of time and to use or weigh them as part of the decision whether to engage in sexual intercourse are essential to capacity to make a decision whether to have sexual intercourse. What is critical is not that a person, whose capacity is being assessed, is permanently aware of how sexually transmitted infections may be caught and that protection may be provided by a condom…Rather it is an assessment of whether the person being assessed has the ability to understand those matters when explained to him or her and to retain the information for a period of time and to use or weigh it in deciding whether or not to consent to sexual relations."    

and (at [59]), that according to s.1(4) of the MCA, making an unwise decision is not tantamount to being unable to make a decision but, as per the Code of Practice, "…can form part of a capacity assessment…".

Capacity to decide on Residence
At [62] the court rejects the Local Authority's criticism of Cobb J's application of the Theis J's list in LBX, again deeming the intention to that this will be used as "no more than guidance to be expanded of contracted or otherwise adapted to the facts of the particular case".

However, (at 63-64]), the court upheld the appeal in respect of the Local Authority's overarching contention that Cobb J's decision that B has capacity to make decisions in relation to residence was flawed in:

"(1) failing to take into account relevant information relating to the consequences of each of those decisions, and

(2) producing a situation in which there was an irreconcilable conflict with his conclusion on B's incapacity to make other decisions, and so

(3) making the Local Authority's care for and treatment of B practically impossible.

and agreed with the contention that "…the Judge's flawed conclusion followed from his approach in analysing B's capacity in respect of different decisions as self-contained "silos" without regard to the overlap between them"

The court found that it was "plainly relevant" [65] that Cobb J made a declaration that B did not have capacity to make a decision as to the persons with whom she has contact as this "conflicted directly" with his conclusion that she did have capacity to decide to move in with Mr C. The court found this was also in direct conflict with the interim declaration that B did not have capacity to consent to sexual relations [66] and Cobb J's conclusion that B had a sufficient understanding of the care she would receive if living with Mr C despite having made a declaration that she did not have capacity to make decisions about her care [67]. Similarly, there was also a conflict between Cobb J's decision that, despite B's lack of capacity to make decisions about her care and limited understanding of her care needs, she did have capacity to decide to reside with her parents rather than move to residential care.

Accordingly, the Local Authority's appeal was allowed and the OS's appeal was dismissed.

NB At [33] having concluded that the OS had failed to comply with the same as they "…do not identify as concisely as possible in a separate document the respects in which the judgment of Cobb J was wrong, and they include the reasons why the decision was wrong rather than confining those to the skeleton argument…" the court reiterates the importance of complying with CPR 52CPD para 5, as emphasised by Hickinbottom LJ (at [56]-[57] ) in Harverye v Secretary of State for the Home Department [2018] EWCA Civ 2848 when drafting grounds of appeal. 

Summary by Lucinda Wicks, barrister, Coram Chambers

Full case B v A Local Authority [2019] EWCA Civ 913 on BAILII