“3) To reside at [identified residential accommodation] and to receive the care currently being provided by the Brain Injury Rehabilitation Trust and funded by LPCT. 4) For LM to have contact with AB, to include letters, under the supervision of Dr P [the responsible clinical neuropsychologist] whilst she resides at [the residential accommodation] with a trial of more relaxed contact expected to take place. 5) Both before and following the anticipated move to supported living, LM's contact with AB shall be subject to LCC’s [ie the local authority’s] safeguarding and best interests assessments. For the avoidance of doubt there is an expectation that a reduction in the present restrictions on contact should at least be trialled. 6) To move to independent supported living in or around 12 months time and to receive the care and support identified in the Support Plan completed by LCC (or such other relevant authority as may be the case). 7) For LM' s immediate family and AB to be consulted as part of the planning process in relation to her future accommodation, care and contact arrangements. 8) If appropriate, for LCC or its nominated officer to enter into and sign any tenancy agreement on LM’s behalf for the purposes of facilitating or maintaining her independent supported living.”
“With prompting, LM is able to describe the mechanics of the sexual act and when asked directly, is able to say that heterosexual intercourse can give rise to pregnancy and is aware of the risks of sexually transmitted infections. This is in keeping with a relative preservation of pre-morbid memories and is indicative of the fact that she can understand and retain the relevant information. However, she was not able to weigh up the risks to herself of a further pregnancy or the potential risks to any children. Specifically, she could identify no difficulties that she may have if she became pregnant saying that she already had 3 children and that they were ‘OK’. … She could see no areas of concern that others may have about her looking after children. LM was therefore unable to understand the foreseeable, possibly inevitable consequences, of pregnancy. She would not engage in a discussion about sexually transmitted disease which, I believe, based on her behaviour when faced with other questions she could not answer, was a way of not having to consider questions that she found difficult. Based on her need for others to monitor her general physical health, although LM can identify that a sexually transmitted infection may arise from a sexual relationship, I do not believe that she would be able to take appropriate action relating to any gynaecological symptoms, partly due to apathy and lack of initiation arising from her brain injury and partly to a lack of general awareness of her own state of health. As LM is unable to weigh up the pertinent information in a clinical interview, she is even less likely to be able to weigh up the information in a non-clinical setting. This latter opinion is based on the likelihood that she will respond to environmental cues. If she returns to using alcohol or drugs her ability to consider pertinent information will be further reduced. Engaging with LM in an assessment of capacity was difficult and, on advice from … an integral member of her care team who has known LM since admission to RC, assessment was kept as brief as possible. Being of the opinion that LM lacks capacity to consent to a sexual relationship on the basis that she cannot weigh up information about the risks of pregnancy and sexually transmitted disease, no further assessment of her understanding of her right to say no was attempted. As I am of the opinion that LM does not have the capacity to consent to a sexual relationship, I have not considered the matter of contraception.”
“LM was not able to weigh up the advantages and disadvantages of becoming pregnant, specifically as she was unable to recognise that pregnancy may result in health risks to herself, potentially the foetus and that the foreseeable outcome of the pregnancy - i.e. a baby, which she may or may not have contact with.”
“Thus, the deficit in [Dr G’s] view was an inability to recognise that pregnancy may result in health risks to LM (no specific risks were identified), or “potential” health risks to the foetus (no specific risks were identified) or the risk of a removal of a child at birth, with which hypothetical child LM may or may not have had contact during its life. [Dr G] asserted that LM would not be able to understand, retain and weigh up “information surrounding sexually transmitted diseases”, but did not identify the nature and extent of the information that she considered to be relevant.”
“[LM] does understand sexual activity; she does is able to tell you about pregnancy and having babies and those kind of issues so she is aware of that. And also in terms of weighing up a decision, she certainly showed some ability to be able to weigh up whether that would be something that she [inaudible]. So if you start talking her through the thresholds, the test of capacity, you do kind of start to come out with a sense that she does have the capacity to understand issues of a sexual nature.”
“There are two very clear questions there. One is: does she understand sex, the nature and the consequences? Yes, she does. Would she be able to make choices about whether she would choose to engage or not engage in sexual activity? I feel that that becomes then an issue about who is she engaging in sexual activity with and what might their pressures be. So it becomes then very much an issue of almost an environmental issue of who is there, who is making those kind of requests.”
“14. I find … that [LM] does possess the abilities required to lead to the conclusion that she has capacity to make decisions about whether or not to have sexual relations. She is somebody who has been [fully] sexually active in the past; she has had children; she understands the rudiments of the sexual act; she has a basic understanding of issues of contraception and the risks of sexually transmitted diseases. The area in which she is weakest is her ability to understand the implications for herself should she become pregnant. Pregnancy for [LM] would be an extremely serious state of affairs; there can be no doubt about that. But her weakness in that respect does not, for me, lead to the conclusion that her capacity is absent; it argues for her to receive continued safeguarding and help, advice and explanation as and when the question of sexual activity might become a reality. 15. In fact, a declaration of incapacity whilst having huge implications for [LM’s] individual future would not, to my mind, provide her with very much protection. What will provide her with protection is the fact that she needs continued close support, amounting at times to supervision, in how she goes on with her life. And taking [AB’s] position as an example, the opportunity for sexual activity will for at least some time to come be limited. But even so as time has passed, the respect that a person with disabilities such as LM is entitled to must mean that she is given opportunities which may carry with them at least some levels of risk and it seems to me that a declaration that [LM] has the capacity to make decisions for herself about sexual activity, combined with the declarations that I will be making about her residence, care and contact amount to an overall package that is likely to meet the test of time in the same way that the arrangements to which the parties have subscribed over the past year or two have shown themselves to be centred on [LM’s] welfare.”
“(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.”
“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).” (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).”
“Nothing in this Act permits a decision on any of the following matters to be made on behalf of a person – (a) consenting to marriage or a civil partnership, (b) consenting to have sexual relations, (c) consenting to a decree of divorce being granted on the basis of two years 1 separation, (d) consenting to a dissolution order being made in relation to a civil partnership on the basis of two years' separation, (e) consenting to a child's being placed for adoption by an adoption agency, (f) consenting to the making of an adoption order, (g) discharging parental responsibilities in matters not relating to a child's property, (h) giving a consent under theHuman Fertilisation and Embryology Act 1990 ”
“It is important not to assess someone’s understanding before they have been given relevant information about a decision. Every effort must be made to provide information in a way that is most appropriate to help the person to understand. Quick or inadequate explanations are not acceptable unless the situation is urgent … Relevant information includes: • the nature of the decision • the reason why the decision is needed, and • the likely effects of deciding one way or another, or making no decision at all.” • the nature of the decision • the reason why the decision is needed, and • the likely effects of deciding one way or another, or making no decision at all.”
‘First, comprehending and retaining treatment information, second, believing it and, third, weighing it in the balance to arrive at choice.’
“A person lacks capacity if some impairment or disturbance of mental functioning renders the person unable to make a decision whether to consent to or to refuse treatment. That inability to make a decision will occur when: (a) the patient is unable to comprehend and retain the information which is material to the decision, especially as to the likely consequences of having or not having the treatment in question; (b) the patient is unable to use the information and weigh it in the balance as part of the process of arriving at the decision.”
“83. … [T]he question is whether E has capacity to marry, not whether she has capacity to marry X rather than Y, nor whether she has capacity to marry S rather than some other man. 84. It is, moreover, a question quite distinct from the question of whether E is wise to marry; either wise to marry at all, or wise to marry X rather than Y, or wise to marry S.”
“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.”
“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. 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 the 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 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. 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.”
‘This does not mean that the test in Re MB (Medical Treatment)[1997] 2 FLR 426 is irrelevant in these contexts. After all, what I have called the general theory is in principle as applicable in a situation where the question is whether X has the capacity to marry as it would be if the question was whether X has the capacity to litigate or the capacity to consent (or refuse consent) to medical treatment. It is simply that such a refined analysis is probably not necessary where the issue is as simple as the question whether someone has the capacity to marry or the capacity to consent to sexual relations.’
“[T]he words ‘or for any other reason’ in section 30(2)(a) of the 2003 Act encompassed a wide range of circumstances in which a person’s mental disorder might make her unable to make an autonomous choice whether to agree to sexual touching even though she might have sufficient understanding of the information relevant to making it; that those circumstances could include an irrational fear preventing the free exercise of choice; that incapacity to choose could be person- and situation-specific; that section 30(2)(b) of the 2003 Act referred to an inability to communicate choice which was the result of or associated with a disorder of the mind and its meaning was not limited to a physical inability to communicate; and that, accordingly, the judge’s directions on lack of capacity and inability to communicate would be upheld.”
“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”: section 30(2)(a). Provided that the inability to refuse is “because of or for a reason related to a mental disorder” (section 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 In re MB[1997] 2 FLR 426 ) or a blood transfusion (as in NHS Trust v T[2005] 1 All ER 387 ).”
“[I]t 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 byarticle 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms.”
“What is necessary is that the particular sexual partner … 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.”
“Contrary to my initial view as to the very wide ambit of the words ‘the reasonably foreseeable consequences’ [s 3(4)] of deciding one way or another on contraception, I have concluded that Official Solicitor’s submissions on this are correct. Although in theory the ‘reasonably foreseeable consequences’ of not taking contraception involve possible conception, a birth and the parenting of a child, there should be some limit in practice on what needs to be envisaged, if only for public policy reasons. I accept the submission that it is unrealistic to require consideration of a woman’s ability to foresee the realities of parenthood, or to expect her to be able to envisage the fact-specific demands of caring for a particular child not yet conceived with unpredictable levels of third-party support. I do not think such matters are reasonably foreseeable: or, to borrow an expression from elsewhere, I think they are too remote from the medical issue of contraception. To apply the wider test would be to ‘set the bar too high’ and would risk a move away from personal autonomy in the direction of social engineering. … I do not consider that questions need to be asked as to the woman’s understanding of what bringing up a child would be like in practice; nor any opinion attempted as to how she would be likely to get on; nor whether any child would be likely to be removed from her care.”
“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.”
“It does not follow that capacity to marry is spouse- as opposed to status-specific. Far from it. I do think … that there has been a conflation of capacity to consent to sex and the exercise of that capacity. There is also a very considerable practical problem in allowing a partner-specific dimension into the test. Consider this case. Is the local authority supposed to vet every proposed sexual partner of Alan to gauge if Alan has the capacity to consent to sex with him or her?”
“[21] It is of course important to remember that possession of capacity is quite distinct from the exercise of it by the giving or withholding of consent. Experience in the family courts tend to suggest that in the exercise of capacity humanity is all too often capable of misguided decision-making and even downright folly. That of itself tells one nothing of capacity itself which requires a quite separate consideration. [22]These issues, moreover, resonate both in criminal and in civil law. It is of course highly desirable that there should be no unnecessary inconsistency between them. However, capacity arises in different contexts. In the criminal law it arises most commonly in respect of a single incident and a particular person where the need to distinguish between capacity and consent may have no significance on the facts. In a case such as the present, however, capacity has to be decided in isolation from any specific circumstances of sexual activity as the purpose of the capacity enquiry is to justify the prevention of any such circumstances arising. There is of course no absolute distinction between capacity in civil and capacity in criminal law, it is merely that they fall to be considered in very different contexts and often, perhaps, for different purposes.”
‘The focus of the criminal law must inevitably be both act and person and situation sensitive; the essential protective jurisdiction of this court, however, has to be effective to work on a wider canvas. It is in those circumstances that I find myself closer to the views expressed by Munby J and Mostyn J …’
‘This is a difficult concept in the context of human sexual relations since choices are generally made rather more by emotional drive and instinct than by rational choice. Of course there is a rational element that has been for most people assimilated into instinct and the control of emotional drive. It seems to me that what is at issue here is whether the person is able to deploy the general knowledge set out above into a specific decision-making act.’
“Whilst consent to sexual relations forms part of the wider decision by a spouse whether or not to take up full cohabitation with her husband, the two decisions are not precisely the same. The fact that one may be act-specific does not mean that the other, wider, decision cannot be person-specific.”
“The determination of capacity under MCA 2005, Part 1 is decision-specific. Some decisions, for example agreeing to marry or consenting to divorce, are status or act specific. Some other decisions, for example whether P should have contact with a particular individual, may be person-specific. But all decisions, whatever their nature, fall to be evaluated within the straightforward and clear structure of MCA 2005, ss 1 to 3 which requires the court to have regard to ‘a matter’ requiring ‘a decision’. There is neither need nor justification for the plain words of the statute to be embellished. … The MCA 2005 itself makes a distinction between some decisions (set out in s 27) which as a category are exempt from the court’s welfare jurisdiction once the relevant incapacity is established (for example consent to marriage, sexual relations or divorce) and other decisions (set out in s 17) which are intended, for example, to relate to a ‘specified person’ or specific medical treatments.”
“Most importantly, the Act provides: ‘A person is not to be treated as unable to make a decision merely because he makes an unwise decision.’ In the field of personal relationships that is a very important qualification to the powers of the court. The plain fact is that anyone who has sat in the Family jurisdiction for as long as I have, spends the greater part of their life dealing with the consequences of unwise decisions made in personal relationships. The intention of the Act is not to dress an incapacitous person in forensic cotton wool but to allow them as far as possible to make the same mistakes that all other human beings are at liberty to make and not infrequently do.”
“For my part, in this case, I shall adopt the approach of Munby J and Mostyn J and hold that the capacity to consent to sexual relations is indeed act specific rather than person specific. With respect to Baroness Hale, it seems to me that the approach favoured by Munby J and Mostyn J is more consistent with respect for autonomy in matters of private life, particularly in the context of the statutory provisions of the MCA and specifically the presumption of capacity and the obligation to take all practical steps to enable a person to make a decision. 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.”
‘I am far from persuaded that [the views of Munby J] 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”.’
‘But I doubt whether such a refined analysis is either necessary or indeed particularly helpful where the issue is as simple as the question whether someone has the capacity to marry. … The question remains as it was in 1881 [in Hunter v Edney (orse Hunter) 10 PD 93]: is E capable of understanding the nature of the contract of marriage. There is no need, as it seems to me, to over-analyse that simple question by bringing to bear on it the analyses in Re C (Adult: Refusal of Treatment). I do not say that these analyses are irrelevant; they are not. I merely say that in this particular context it is unlikely to be either necessary or even particularly helpful to refer to them.’
‘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’