“to promote, protect and ensure the full and equal enjoyment of all human rights and fundamental freedoms by all persons with disabilities, and to promote respect for their inherent dignity.”
“ … there is a need to protect individuals and safeguard their interests where their individual qualities or situation place them in a particularly vulnerable situation.” 6. Striking a balance between the first and second principles is often the most important aspect of decision-making in the Court of Protection. The Mental Capacity Act Code of Practice expresses this in simple terms (at para 2.4): “It is important to balance people’s right to make a decision with their right to safety and protection when they can’t make decisions to protect themselves.”
“Based on descriptions of his previous and ongoing behaviours, this is most likely to take the form of sexual harassment through the form of repeated, unwanted sexually explicit messages to females whose numbers he has obtained or whom he contacts through social media or dating sites. [JB] has also been observed to have limited social boundaries around women, particularly those who are vulnerable but also women in pubs or clubs whom he has approached whilst dancing. Additionally, he acknowledges not being able to judge women's reactions to him and that he is unwilling to directly ask for clarification of these issues. In these and similar situations the risk is of [JB] sexually touching these women without consent. In terms of vulnerable women who do not have the capacity to consent to sexual relations, there is a risk of [JB] not recognising or respecting this fact, resulting in the potential for rape to occur.”
“If a person gives consent then she’s already given consent and you have to go through with it to the end …. She can’t change her mind if you are already doing it. Cos it’s her fault in the first place for saying yes. Already said yes and you’ve got your chance.”
“If a decision could have serious grave consequences, it is even more important that a person understands information relevant to that decision.”
“How then is one to assess whether someone has the capacity to consent to sexual relations, the ability to choose whether or not to engage in sexual activity?”
“Generally speaking, capacity to marry must include the capacity to consent to sexual relations. And the test for capacity to consent to such relations must for this purpose be the same in its essentials as that required by the criminal law. 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, 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)?”
“What is … clear … is that the general rule of English law, whatever the context, is that the test of capacity is the ability (whether or not one chooses to exercise it) to understand the nature and quality of the relevant transaction.”
“The Court of Appeal … 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 In re C (Adult: Refusal ofTreatment)[1994] 1 WLR 290 , 295, approved in In re MB (Medical Treatment)[1997] 2 FLR 426 , 433.” 39. At paragraph 25, she continued: “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’: 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.”
“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 [ECHR]. 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 deny them the possibility of making autonomous choices, while failing to protect those whose mental disorder deprived them of autonomy in other ways.”
“In my view the analogy drawn by Munby J with capacity to marry is faultless and is impossible to challenge successfully. Of course Baroness Hale is right to say … ‘it is difficult to think of an activity which is more person- and situationspecific than sexual relations’ but the same is true (if not truer) of marriage. But it does not follow the capacity to marry is spouse- as opposed to status- specific. Far from it. I do think, with the greatest possible respect, 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?”
“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 them becoming pregnant; (6) that sex is part of having relationships with people and may have emotional consequences.”
“that the capacity to consent to sex remains act-specific and requires an understanding and awareness of: the mechanics of the act; that there are health risks involved, particularly the acquisition of sexually transmitted and sexually transmissible infection; that sex between a man and a woman may result in the woman becoming pregnant.”
“I believe that to import these knowledge requirements into the capacity test elevates it to a level considerably above the very simple and low level test propounded by Munby J.” 45. He accepted the psychiatrist’s opinion that the need for consent is one of the very first messages conveyed to people with learning disabilities who are being taught about sex but added (at paragraph 41): “there is a difference, however, between the teaching of what is right and wrong in the pursuit of sex, and what level of understanding and intelligence is needed to be capable of consenting to it.”
“20. Any sexual act between human beings is a complex process. Although sharing physical similarities to sexual congress in the animal kingdom, that between human beings is qualitatively different. It has not just a physical but an emotional and moral component as well. Victims of sexual assault rarely refer to physical injury, their emphasis is on emotional damage and moral violation. Whether these concepts can be incorporated into a test of capacity is of course an important question but it is essential to acknowledge their significance in human relationships. 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 tends 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.”
“In my judgment one can do no more than this: does the person whose capacity is in question understand that they do have a choice and that they can refuse? That seems to me an important aspect of capacity and is as far as it is really possible to go over and above an understanding of the physical component.”
“Whilst I accept of course that human sexual relations are particularly person as well as situation-specific, I would be disposed to view that in terms of whether any specific consent was or in these circumstances could be given. The difficulty in the Court of Protection is the need to determine capacity apart from specific persons or situations: H is in one sense a classic illustration of the problem. On the other hand one can see as a criminal lawyer the difficulties raised by a general finding in relation to a person who without knowledge of it embarks on what he thinks is consensual sexual activity. 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 (as he then was) and Mostyn J although I have reached that position by a more tortuous route.”
“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.” 49. At paragraph 55, I observed: “Most people faced with the decision whether or not to have sex do not embark on a process of weighing up complex, abstract or hypothetical information. I accept the submission on behalf of the Official Solicitor that the weighing up of the relevant information should be seen as a relatively straightforward decision balancing the risks of ill health (and possible pregnancy if the relations are heterosexual) with pleasure, sexual and emotional brought about by intimacy. There is a danger that the imposition of a higher standard for capacity may discriminate against people with a mental impairment.”
“In my judgment this simply cannot be gainsaid. It was accepted by everyone in this case that sex between humans must involve more than mere animalistic coupling. It is psychologically a big deal, to use the vernacular. Hedley J's formulation captures perfectly why and how that extra ingredient should be defined.”
“(i) the mechanics of the act; and (ii). that there are health risks involved; and (iii). that he or she has a choice and can refuse.”
“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. I do not agree with the Official Solicitor's submission that absurd consequences flow from a failure to adopt either an actspecific or a person-specific approach to each category of decision that may fall for consideration. To the contrary, I endorse Mr Hallin's argument [on behalf of the local authority] to the effect that removing the specific factual context from some decisions leaves nothing for the evaluation of capacity to bite upon. 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.”
“We endorse the language of McFarlane LJ and express concern that the terminology that has developed in this field ('person-specific', 'act-specific', 'situation-specific' and 'issue-specific') although superficially attractive, tends to disguise the broad base of the statutory test which, when applied to the question of capacity in the wide range of areas that is covered by the Act, will inevitably give rise to different considerations. It is important to emphasise that s. 3(1)(c) of the Act refers to the ability to use or weigh information as part of the process of making the decision. In some circumstances, having understood and retained relevant information, an ability to use it will be what is critical; in others, it will be necessary to be able to weigh competing considerations.”
“75. …. in our view, each of the judges, including Baroness Hale, was correctly stating the law. The reason why the words used are diametrically opposed to each other arises, in our view, from the two distinct and different contexts in which the respective judgments were given. We regard the passages that we have quoted from Mostyn J in D Borough Council v B and Hedley J in A Local Authority v H as being 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. 76. Baroness Hale is plainly right that: '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' [emphasis added]. The focus of the criminal law, in the context of sexual offences, will always be upon a particular specific past event with any issue relating to consent being evaluated in retrospect with respect to that singular event. But the fact that a person either does or does not consent to sexual activity with a particular person at a fixed point in time, or does or does not have capacity to give such consent, does not mean that it is impossible, or legally impermissible, for a court assessing capacity to make a general evaluation which is not tied down to a particular partner, time and place. 77. Going further, we accept the submission made to us to the effect that it would be totally unworkable for a local authority or the Court of Protection to conduct an assessment every time an individual over whom there was doubt about his or her capacity to consent to sexual relations showed signs of immediate interest in experiencing a sexual encounter with another person. On a pragmatic basis, if for no other reason, capacity to consent to future sexual relations can only be assessed on a general and non-specific basis. 78. Finally, as s.27 of the Act makes plain, where a court finds that a person lacks capacity to consent to sexual relations, then the court does not have any jurisdiction to give consent on that person's behalf to any specific sexual encounter. The exclusion in s.27 supports the conclusion that assessment of capacity to consent to sexual relations can only be on a general basis, rather than tied to the specific prospect of a sexual relationship with a particular individual in specific circumstances. 79. On the basis that we have described, we hold that the approach taken in the line of first instance decisions of Munby J, Mostyn J, Hedley J and Baker J in regarding the test for capacity to consent to sexual relationships as being general and issue-specific, rather than person- or event-specific, represents the correct approach within the terms of the MCA 2005. We also conclude that this approach is not, in truth, at odds with the observations of Baroness Hale, which were made in a different legal context.”
“52. In my view consent is not part of the ‘information’ test as to the nature of the act or its foreseeable consequences. It goes to the root of capacity itself. 53. Mr McKendrick [for P] submits that consent is the exercise of capacity, and not relevant information. I put it a different way. The ability to understand the concept of and the necessity of one’s own consent is fundamental to having capacity: in other words that P ‘knows that she/he has a choice and can refuse’. 54. I am less certain that consent of the other party is fundamental to capacity. 55. The court cases do not specifically deal with this issue: some refer to P’s consent and in some there is passing reference to the consent of a partner. None analyses why the latter consent is part of the capacity test. 56. Since it is all too possible for sexual contact to take place, and does take place, without consent, the necessity for the consent of a partner does not obviously form part of the capacity test, particularly since the issue of consent in the criminal law can give rise to complex debate as to mens rea, particularly in cases of apparent consent or lack of explicit communication of consent. 57. However I need not consider these questions since I have no doubt that KA, who has been carefully educated about it, both understands and retains the understanding of the necessity for consent of both himself and his partner/spouse.”
“I take the view that KA, a young man, needs to have an understanding, if not a sophisticated one, that pregnancy is a foreseeable consequence of heterosexual relations. It is beyond the scope of this judgment to decide whether pregnancy is a foreseeable consequence, and therefore needs to be understood, by other individuals, for instance by reason of sexual orientation, age, or particular physical characteristics.”
“I do not agree that it is necessary for KA to understand condom use, which, leaving aside efficacy, goes to welfare and not capacity.”
“It is clear that the information relevant to the decision in this area includes (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 risk of sexually transmitted infection can be reduced by the taking of precautions such as the use of a condom.”
“Cases, like the present, which concern whether or not a person has the mental capacity to make the decision which the person would like to make involved two broad principles of social policy which, depending on the facts, may not always be easy to reconcile. On the one hand, there is a recognition of the right of every individual to dignity and self-determination and, on the other hand, there is a need to protect individuals and safeguard their interests where their individual qualities or situation place them in a particularly vulnerable situation ….”
“The argument before Hayden J in NB was presumably that the conclusion in IMv LM does not preclude the tailoring of relevant information to accommodate the individual characteristics of the person being assessed. We heard no argument on these points and do not need to decide them in the present appeals ….”
“51. …. This does not seem to us to be a point of any substance on the correctness of Cobb J's decision that B lacked capacity to consent to sexual relations. [Counsel for the Official Solicitor] referred us to the observation of Parker J in London Borough of Southwark v KA [supra] at [52] that ‘consent is not part of the 'information' test as to the nature of the act or its foreseeable consequences. It goes to the root of capacity itself’. Her point, which is plainly correct, was that awareness of the ability to consent to or refuse sexual relations is more than just an item of relevant information. As she elaborated at [53]: ‘The ability to understand the concept of and the necessity of one's own consent is fundamental to having capacity: in other words that ‘P knows that she/he has a choice and can refuse.’ The same point had previously been made by Mostyn J in London Borough of Tower Hamlets v TB[2014] EWCOP 53 . 52. Moreover, the point seems to be an entirely arid one for the purpose of this appeal as [the psychiatrist’s evidence] makes clear that B did understand perfectly well that consent could be refused and that to have sexual relations without consent is rape ….”
“27. The omnipresent danger in the Court of Protection is that of emphasising the obligation to protect the incapacitous, whilst losing sight of the fundamental principle that the promotion of autonomous decision making is itself a facet of protection. In this sphere, i.e. capacity to consent to sexual relations, this presents as a tension between the potential for exploitation of the vulnerable on the one hand and P's right to a sexual life on the other. 28. …. [I]n this interpersonal context, relationships are driven as much by instinct and emotion as by rational choice. Indeed, it is the former rather than the latter which invariably prevail. This fundamental aspect of our humanity requires to be identified and appreciated as common to all, including those who suffer some impairment of mind. To fail to do so would be to lose sight of the primary objective of the MCA. It would require a disregard of at least two decades of jurisprudence emphasising P's autonomy. Moreover, it would seriously risk discriminating against vulnerable adults with learning disabilities and other cognitive challenges. 29. It strikes me as artificial, at best, to extract both instinct and emotion from an evaluation of consent to sex, they are intrinsic to the act itself. In many ways, of course, instinct and emotion are the antithesis of reason. However, whilst they may cloud decision making, perhaps even to the point of eclipsing any calculation of risk, they are nonetheless central to sexual impulse. To establish an inflexible criterion to what may properly constitute 'consent' risks imposing a rationality which is entirely artificial. 30. It also needs to be emphasised that the law does not identify the criteria which are being considered here. The MCA 2005, in some ways like theChildren 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.”
“I am emphasising 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. This entirely accords with the approach pursued by Sir Terence Etherton MR in B v ALocal Authority (supra).”
“The applicable criteria in evaluating capacity to consent require to be rooted within the clear framework of MCA 2005 ss 1 to 3. The individual tests are not binding and are to be regarded as guidance 'to be expanded or contracted' to the facts of the particular case. They are to be construed purposively, both promoting P's autonomy and protecting her vulnerability.”
“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. Further, it is entirely irreconcilable with the Act's defining principle in Sec. 1 (2) … 'a person must be assumed to have capacity unless it is established that he lacks capacity’.”