A Local Authority v TZ [2013] EWCOP 2322

This judgment is being handed down in private on 31 st July 2013. It consists of 16 pages and has been signed and dated by the judge. The judge hereby gives leave for it to be reported.The judgment is being distributed on the strict understanding that in any report no person other than the advocates or the solicitors instructing them (and other persons identified by name in the judgment itself) may be identified by name or location and that in particular the anonymity of TZ must be strictly preserved.Case No 11948023
IN THE COURT OF PROTECTION
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 31/07/2013
Before
THE HONOURABLE MR JUSTICE BAKER
Between
IN THE MATTER OF THE MENTAL CAPACITY ACT 2005ApplicantAND IN THE MATTER OF TZApplicantA LOCAL AUTHORITYApplicantTZRespondent
Michael Dooley (Local Authority Solicitor) for ApplicantJohn McKendrick (instructed by CVC Solicitors for Official solicitor) for the RespondentHearing Hearing dates: 3 rd and 4 th July 2013
JudgmentThe Honourable Mr. Justice Baker :Introduction
[1]The principal issue to be determined in this judgment in proceedings brought in the Court of Protection is whether a 24-year-old man, whom I shall hereafter refer to as TZ, has the capacity to consent to sexual relations.[2]The issue falls to be determined by the court in somewhat unusual circumstances in that, whereas the applicant in the proceedings, namely the local authority for the area in which TZ lives, and the Official Solicitor, who is acting as TZ’s litigation friend in the proceedings, both agree that he does have capacity to consent to sexual relations, the expert psychiatrist instructed in these proceedings, hereafter referred to as Dr X, is of the opinion that he does not have that capacity. Thus this court must make the decision on that issue.[3]In addition to capacity to consent to sexual relations, issues have been raised as to whether TZ has other capacities namely(1) to litigate(2) to make decisions as to his residence(3) to make decisions as to his contact with other people, and(4) to make decisions as to his care needs. All parties and Dr X are agreed that TZ lacked the capacity to litigate and I shall accordingly make a declaration to that effect. So far as the capacity to make decisions as to residence is concerned, the applicant contends that TZ lacks that capacity but the Official Solicitor submits that it is unnecessary to make any declaration as to that issue because TZ is currently settled and no decision as to his residence arises at this time. For reasons explained below, I accept the Official Solicitor’s submission on that issue. As for the other capacities in issue – the capacity to make decisions as to contact with other people, and as to his care needs – it became apparent in the course of the hearing that I should adjourn those issues for an addendum report from Dr X and further legal argument. That is unfortunate, particularly as these proceedings have been continuing for over two-and-a-half years before finally coming before me, but I reluctantly conclude that a further adjournment is necessary to enable the court to make the right decision on these points. For TZ, the key question which he is anxious to be resolved is as to whether he has the capacity to consent to sexual relations.

Background

[4]TZ was born in 1989 and is now 24 years old. His mother was only 17 years old when he was born and struggled to look after him and his younger brother. In 1992, TK and his brother were taken into the care of the local authority and placed with foster carers, Mr and Mrs Z. In 1994, both boys were adopted by Mr and Mrs Z.[5]It became apparent that TZ was developmentally delayed and suffered from other problems. His current diagnosis, confirmed by Dr X in his reports, is of mild learning disabilities, atypical autism and hyperactivity disorder (ADHD).[6]In his teenage years, there were various reports of inappropriate sexual behaviour between TZ and his brother. In January 2010, TZ left the home of his adoptive parents and sought out his natural family. His spent some time with his mother and other relations. Through them, he came into contact with a number of people who, it is now clear, took advantage of and ill-treated him. In the course of 2010, he took on the tenancy of a flat but professional agencies involved in providing him with support became concerned about a range of matters including his lifestyle, spending, personal hygiene and health. Towards the end of 2010, he re-established contact with his adoptive parents but then fell out with them again.[7]Towards the end of 2010, TZ formed a relationship with another man, hereafter called A, and persisted with that relationship despite the concerns of professionals and his adoptive parents. At one point, TZ alleged that A had sexually assaulted him and was offered emergency accommodation but subsequently returned to live with A.[8]On 12th January 2011, the local authority filed an application in the Court of Protection seeking declarations as to his capacity and orders as to his welfare. A district judge made interim declarations pursuant to s.48 of the Mental Capacity Act 2005 that there was reason to believe that TZ lacked capacity to litigate, to make decisions about where he should reside, and to make decisions about the contact he should have with A and others. In March 2011, with the assistance of his adoptive parents, TZ left the flat at which he had been living with A. He subsequently repeated his assertion that he had been sexually assaulted by A. That allegation was investigated by the local constabulary but they decided not to pursue any charges against A.[9]Following his departure from the flat, TZ was placed in a residential unit, hereafter referred to as H Home, run by an organisation specialising in offering supportive accommodation for people with a learning disability. TZ has continued to live at H Home since that date and is by all accounts very happy and settled there.[10]On 31st March 2011, Her Honour Judge Susan Darwall-Smith ordered that it was lawful and TZ’s best interests to live at H Home until further order, and further that it was lawful and in his best interests for his contact with A to be restricted. An injunction was made against A to prevent him from attempting to remove or encourage TZ to leave H Home and further restraining A from having any contact with TZ. Directions were also given for the future conduct of the case, including permission for the parties to instruct an expert psychiatrist, Dr X, to advise as to TZ’s capacity.[11]In his first report dated 8th September 2011, Dr X concluded that TZ lacked capacity to litigate in these proceedings, make decisions regarding his residence and care, make decisions as to his contact with other people, or to consent to sexual relations, whether heterosexual or homosexual. Subsequently the parties addressed certain supplemental questions to Dr X who provided answers in an addendum report dated 14th January 2012. In that addendum, he confirmed his previous opinion as to TZ’s capacity, and advised that the contents of his report should be disclosed and discussed with TZ.[12]Following that addendum report, a further series of directions hearings took place before His Honour Judge Tyzack QC, to whom the case had been transferred. By an order dated 17th January 2012, the court authorised a care plan for TZ to reside at H Home. The learned judge further directed that a hearing should be listed before a judge of the High Court to determine the issues concerning TZ’s capacity. By a further order dated 10th February 2012, Judge Tyzack declared the court had reason to believe that TZ lacked capacity to make decisions about contact with members of his birth family and make interim orders restricting his contact with them.[13]By a further order dated 5th April 2012, Judge Tyzack made an order that in the interim it was lawful and in TZ’s best interests to reside at H Home until further order and to have his contact with his brothers and A restricted. It was further declared that it was in TZ’s best interests to receive an appropriate package of sexual education to facilitate his capacity to consent to sexual relations. Furthermore, it was agreed that the conclusions of Dr X’s report would be reduced to a written statement in terms that TZ would be able to understand and the contents of that statement shared with TZ at a specially convened meeting. Furthermore, the court gave permission for the parties to instruct an independent sexual health specialist to provide a report setting out how much knowledge a person should possess to be deemed to have capacity to consent to sexual relations and where TZ lies along that spectrum of knowledge.[14]Pursuant to those directions, a written statement summarising Dr X’s conclusions was prepared and shared with TZ. In addition, TZ participated in a programme of sex education. A further report was prepared by a consultant physician specialising in sexual health, Professor R, who concluded:
“TZ has some knowledge of the mechanics and risk of sexual intercourse, and the potential for these risks to be reduced by using condoms. In my opinion, and in making comparison with the general population of sexually active individuals, his level of knowledge does reach the threshold of ‘rudimentary’ for the mechanics of sexual intercourse, awareness of associated health risks with respect to sexually transmitted infections (and that a condom can potentially reduce these risks) and that sex between the man and the woman may result in pregnancy.”
[15]Following this report, a third report was commissioned from Dr X in which he stated that he continued to hold the opinion that TZ lacks capacity in the four areas under consideration, including the capacity whether to consent to sexual relations. Following the implementation of the directions made by Judge Tyzack, the matter was listed before me for a full hearing in July 2013.

The Law

[16]I start by setting out the relevant statutory provisions in the Mental Capacity Act 2005. “1. The principles.(1) The following principles apply for the purposes of this Act.(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. 2. People who lack capacity. (1) For the purposes of this Act, a person lacks capacity in relation to a matter if at the material time he is unable to make a decision for himself in relation to the matter because of an impairment of, or a disturbance in the functioning of, the mind or brain. (2) It does not matter whether the impairment or disturbance is permanent or temporary. (3) A lack of capacity cannot be established merely by reference to - (a) a person's age or appearance, or (b) a condition of his, or an aspect of his behavior, which might lead others to make unjustified assumptions about his capacity. (4) In proceedings under this Act or any other enactment, any question whether a person lacks capacity within the meaning of this Act must be decided on the balance of probabilities. (5) No power which a person (“D”) may exercise under this Act— (a) in relation to a person who lacks capacity, or (b) where D reasonably thinks that a person lacks capacity, is exercisable in relation to a person under 16. (6) Subsection (5) is subject to section 18(3). 3. Inability to make decisions. (1) 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). (2) A person is not to be regarded as unable to understand the information relevant to a decision if he is able to understand an explanation of it given to him in a way that is appropriate to his circumstances (using simple language, visual aids or any other means). (3) The fact that a person is able to retain the information relevant to a decision for a short period only does not prevent him from being regarded as able to make the decision. (4) The information relevant to a decision includes information about the reasonably foreseeable consequences of— (a) deciding one way or another, or (b) failing to make the decision.” (1) The following principles apply for the purposes of this Act. (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. (b) a condition of his, or an aspect of his behavior, which might lead others to make unjustified assumptions about his capacity. (b) where D reasonably thinks that a person lacks capacity, (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).[17]Thus the test for capacity involves two stages. The first stage, sometimes called the “diagnostic test”, involves determining whether the person has such an impairment or disturbance. The second stage, sometimes known as the “functional test”, involves determining whether the impairment or disturbance renders the person unable to make the decision – that is to say, as provided in s.3, unable to(a) understand the information relevant to the decision;(b) retain that information;(c) use or weigh that information as part of the process of making the decision, or(d) communicate his decision whether by talking, using sign language or any other means. Further guidance as to the assessment of capacity generally, and the interpretation and application of the four components of the functional test in particular, is set out in chapter 4 of the Mental Capacity Act 2005 Code of Practice.[18]In PC and NC v City of York Council [2013] EWCA Civ 478, McFarlane LJ set out the general approach to be adopted by a court assessing capacity. Having considered various submissions made to him he concluded at paragraph 35:
“The determination of capacity under MCA 2005 Part I 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 the MCA 2005 sections 1 – 3, which requires the court to have regard to ‘a matter’ requiring ‘a decision’. There is neither need or justification for the plain words of the statute to be embellished.”
[19]How is a court to determine capacity to consent to sexual relations? It is well established that capacity to marry is to be assessed in general and as a matter of principle and not by reference to any particular proposed marriage: see the decision of Munby J (as he then was) in Sheffield City Council v E [2005] Fam 326, approved by the Court of Appeal in the PC case (supra) at paragraph 23 of McFarlane LJ’s judgment. It is act specific and status specific rather than person specific or spouse specific. In a further case, Local Authority X v MM [2007] EWHC 2003 (Fam), hereafter referred to as ‘MM’, Munby J adopted the same approach to capacity to consent to sexual relations, holding that it, too, is act specific rather than person specific. At paragraph 86 Munby J said:
“The question [capacity to consent to sexual relations] is issue specific, both in the general sense and…in a 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.”
[20]This approach was, however, disapproved by Baroness Hale of Richmond in R v Cooper [2009] UKHL 42 [2009] 1 WLR 1786 in the context of a criminal prosecution for an offence of sexual activity with a person with a mental disorder impeding choice, contrary to the Sexual Offences Act 2003. In paragraph 27 of her speech in that case, Baroness Hale observed:
“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 the European Convention for the Protection of Human Rights and Fundamental Freedoms. The object of the Sexual Offences Act 2003 was to get away from the previous ‘status’ – based approach which assumed that all ‘defectives’ lacked capacity, and thus denied them the possibility of making autonomous choices, while failing to protect those whose mental disorder deprived them of autonomy in other ways.”
[21]In D Borough Council v AB [2011] EWHC 101 (Fam), [2011] COPLR Con Vol 313, [2011] 2 FLR 72, a case involving a man with a moderate learning disability, whom the judge referred to as ‘Alan’, Mostyn J grasped the nettle of addressing the conflict between Munby J’s decision in MM, a case that pre-dated the Mental Capacity Act, and Baroness Hale’s observations in R v Cooper, a Supreme Court case that post-dated the Mental Capacity Act but were made in the context of a case involving a different statutory provision. Mostyn J came down firmly on the side of Munby J’s approach. Having acknowledged the correctness of Baroness Hale’s observation quoted above that ‘it is difficult to think of an activity that is more person-and situation-specific than sexual relations’, he added (paragraph 35):
“but the same is true (if not truer) of marriage. But it does not follow that 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?”
[22]Practitioners and judges are therefore left in the slightly uneasy position that there is a clear view of the correct approach emerging from decisions of judges in the Court of Protection which may be challenged in the Supreme Court if and when a case reaches that level. That sense of unease is encapsulated by McFarlane LJ’s observation in PC (at paragraph 21) that, whereas the clear and certain authority that capacity to marry is act specific, rather than person specific provides ‘solid ground’, the authorities provide only ‘some relatively solid ground for holding that the same is also true with respect to consent to sexual relations”.[23]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 favored 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.[24]Accordingly, I adopt and follow the approach of Munby J in MM namely that capacity to consent to sexual relations is act specific and has to be assessed in relation to the particular kind of sexual activity in question.[25]In passing, I observe that there may be cases where, having held that P has the capacity to consent to sexual relations, the Court of Protection subsequently holds that P lacks the capacity to make decisions as to contact, either generally or with one or more named individuals. There may therefore be circumstances in which P’s sexual relationship with a specific person may be curtailed by the court notwithstanding the fact that he has capacity to have sexual relations. This issue may be the subject of debate between the parties at the forthcoming hearing which shall consider TZ’s contact with others, as referred to in paragraph 4 above.[26]The next stage is to identify the level of capacity required. In X City Council v MB and NB [2006] EWHC 168 (Fam) [2006] 2 FLR 968, Munby J observed at paragraph 74:
“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.”
At paragraph 84, he added:
“… [F]or 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, to have the capacity to choose whether or not to engage in it…”
[27]In D Borough Council v AB (supra), Mostyn J was provided with expert evidence which in the judge’s phrase (at paragraph 23) “sought to supply more specificity to the simple test propounded by Munby J.” Mostyn J, however, rejected the expert’s suggestion that a more extensive level of knowledge should be required, concluding 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”. At paragraph 42, he added:
“I therefore conclude that the capacity 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 transmissable infections; that sex between a man and a woman may result in the woman becoming pregnant.”
[28]In the present case, the question arises whether this is the correct test for capacity to consent to engage in homosexual relations. In particular, it has been argued on behalf of the Official Solicitor that, in order to have capacity to consent to homosexual relations, it is unnecessary for a person to have an understanding and awareness of the fact that sex between a man and a woman may result in the woman becoming pregnant.[29]Mostyn J touched on this issue in D Borough Council v B. At paragraph 43 of his judgment, immediately followed the passage cited above in which he had identified the three criteria, he said:
“I would also make this observation. I am sure that the first and second of these criteria is needed to be able to consent to penetrative anal sex and oral sex. I doubt if the third is. And I doubt if either the second or third is necessary to be able to consent to sexual activity such as mutual masturbation. This leads to potentially serious management problems where different kinds of sexual activities are practiced at different times.”
[30]These comments are consistent with the observation of Munby J at paragraph 86 in MM that “capacity has to be assessed in relation to the particular kind of sexual activity in question.” I also consider them to be consistent with the observation of McFarlane LJ in PC that the determination of capacity is decision specific.[31]I therefore conclude that in the case of a person in respect of whom it is clearly established that he or she is homosexual – gay or lesbian – it is ordinarily unnecessary to establish that the person has an understanding or awareness that sexual activity between a man and a woman may result in pregnancy.[32]Having said that, it goes without saying that human sexuality is profound and complex and there are many people, such as Alan in D Borough Council v AB and indeed TZ in the current case, who have, at times, been attracted to both men and women. In those circumstances, it will be necessary to establish an understanding and awareness of the fact that sex between a man and a woman may result in pregnancy as part of the assessment of capacity to consent to sexual relations.[33]The reported cases highlight several other matters to be borne in mind when assessing capacity to consent to sexual relations. First, as Mostyn J observed in D Borough Council v AB at paragraph 11:
“…the court must tread especially carefully where an organ of the state proposes that a citizen’s ability to perform, in a non-abusive way, the sex function should be abrogated or curtailed. It involves a very profound aspect of civil liberties and person autonomy.”
[34]Secondly, as Hedley J observed in A Local Authority v H [2012] EWHC 49 (COP), [2012] 1 FCR 590 paragraph 30, concerning the question of weighing and using information relevant to the capacity to consent to sexual relations:
“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 the emotional drive.”
[35]Thirdly, whilst the court will commonly commission expert evidence to assist on the analysis of capacity, the roles of the court and expert are distinct and it is the court that is in the position to weigh up the expert evidence against its findings on the other evidence including, in appropriate cases, the evidence of P himself: see A County Council v K, D and L [2005] EWHC 144 (Fam) [2005] 1 FLR 851 per Charles J.[36]Finally, as I observed in PH v A Local Authority and Z Ltd [2011] EWHC 1704 (Fam) at paragraph 16 and in CC v KK [2012] EWHC 2136 (COP) at paragraph 25, the court must guard against the danger that, for understandable reasons, it is drawn towards an outcome that is more protective of the adult and thus fails to carry out an assessment of capacity that is both detached and objective.[37]Having those principles in mind, I turn to the evidence in this case.

Evidence concerning TZ’s capacity to consent to sexual relations

[38]The principal sources of evidence concerning TZ’s capacity to consent to sexual relations are, first, the expert opinions of Dr. X and, secondly, TZ’s own evidence to the court.[39]Dr. X has consistently advised that TZ has an impairment of the brain that affects the way his brain works. I accept his evidence on this issue. Accordingly, the “diagnostic” test of incapacity is satisfied. The crucial question here is whether the “functional” test is satisfied.[40]In his first report, Dr X conducted an analysis in accordance with the provisions of s.3. On the first limb – understanding information – he concluded that TZ’s knowledge of the mechanics of sexual intercourse and of the fact that pregnancy was a consequence of intercourse were “rudimentary” (and thus sufficient to meet the criteria identified by Munby J) but his knowledge about health risks associated with sexual activity was “less than rudimentary”. On the second limb – retaining information – he concluded that TZ was likely to be able to retain the relevant information that he may be able to understand, provided he was supported to do so. For Dr X, it was the third limb – using and weighing information – that presented particular difficulty for TZ. He concluded that “… [TZ’s] ability to use and weigh this information in balance in order to reach a decision was significantly compromised by both his cognitive and social impairment arising from his mental condition. More specifically, distractibility and impulsivity (associated with his ADHD) and abstract thinking/imagimation difficulties and nintense interests (associated with his autism) are likely to significantly interfere with his ability to use and weigh relevant information.”[41]For his final report, Dr. X had the benefit of the report of Professor R and also a description of TZ’s participation in the sex education course, as well as a further interview with TZ. His reassessment led him to conclude that TZ demonstrated a slightly higher level of knowledge of health risks and as a result, “it is possible to conclude that on the balance of probabilities it is likely that TZ’s understanding of the relevant information is adequate”. Despite TZ’s difficulties with memory, attention and concentration consistent with his diagnoses, Dr X remained of the view that, with support, he was likely to be able to retain the relevant information.[42]It was the third limb that continued to cause concern for Dr X. His conclusion on this issue was as follows:
“My opinion remains that TZ’s ability to use and weigh the relevant information (which includes a complex analysis of risks and benefits often in the abstract and hypothetical) in balance in order to reach a decision is still significantly compromised by both his cognitive and social impairment arising from his complex mental condition. Specifically, symptoms associated with his ADHD (including distractibility and impulsivity), and those associated with autism (abstract thinking/imagination difficulties and intense interests) together with his intellectual impairment are still likely to significantly interfere with his ability to use and weigh relevant information. Other psychological factors such as early attachment issues, emotional factors related to his traumatic experiences are also likely to contribute.”
[43]He concluded that TZ did not have the capacity to consent to sexual relations, but thought it possible that he might in future acquire that capacity with further support and therapy.[44]In his oral evidence, Dr X was taken through his reports, and gave further detail of his conversations with TZ. He expressed the view, based on TZ’s own statements, that he had homosexual orientation but added that it was not clear whether he also had heterosexual feelings. Cross-examined by Mr. McKendrick on behalf of the Official Solicitor, he agreed that the amount of rational reasoning required for using and weighing information was “fairly low”, but he felt that TZ would have difficulty weighing up the consequences of his actions. Specifically, he would have difficulty with the question:
“if I do this with that person, how is this going to work out?”
The problem lay not so much with his cognitive difficulties but rather with the impulsivity that is a feature of his ADHD, coupled with “his social tendency to trust people in an unexamined way”. It was suggested to Dr. X that this was confusing an incapacitous decision with an unwise one. It was further suggested that his reference in the passage in his report (cited above) to a “complex analysis of risks and benefits often in the abstract and hypothetical” was imposing too high a test. He acknowledged that, if this was the case, TZ might meet the standard required for capacity to use and weigh the information.[45]TZ gave informal evidence to me in court. Although he was understandably nervous and hesitant at first, he gradually opened up and was able to give me a clear picture of his understanding about the relevant issues. I found him straightforward and articulate in everything he said.[46]He described his current life at H Home where he is manifestly very happy. He has his own room of which he is clearly proud, but also takes an active role in the life of the establishment, and has a good rapport with other residents and staff. It was plain to me that there is at present no issue about where he should live. He works three days a week at a café run by a local charity, and plainly enjoys this opportunity to get out and meet people. When he goes out, he is accompanied by a member of staff. Although he tolerates this restriction, it was evidence that he would like a greater degree of freedom. He expressed this to me by saying :
“I always have someone with me. I feel all right about that but I’d like them to take a step back so I could take responsibility for my own life.”
[47]TZ spoke frankly about his own sexuality. He said that he had come out as gay about a year ago. Before that, he had been a bit confused but now was not. There are some reports in the local authority records suggesting that he may have been attracted to women at one stage since he moved into H Home. TZ was clear that this was no longer the case. “I’m not attracted to women at all, just men.” He said that it was important to be friends first with someone before moving onto a sexual relationship. Asked what he would get out of such a relationship, he identified sexual pleasure, but also thought it was important “to be happy and healthy, not be abused, and not be let down”. It seemed to me that he was referring back to unhappy experiences in previous relationships. “It’s not just the sex, it’s about being happy and safe and secure in the relationship.”[48]TZ described in simple terms the physical acts of sex both between a man and a woman and between two men. He indicated that he understood that, “if men and women have sex, the woman can get pregnant”. He knew that a man cannot become pregnant. He was aware of the health risks from sexual activity, and listed the names of several sexually transmitted diseases. He said that the way of avoiding catching any of these diseases was to use a condom. He said that he knew there was a risk of the condom splitting, and in those circumstances he would get himself tested. He has been tested twice before for HIV. On each occasion, the test was negative.[49]He said that he would like to have the opportunity to meet a man, by going to places such as gay bars. He said that he had learned to take his time because “you can’t judge a book by its cover”. He said he would rather not rush things, but would rather wait to see if he could trust the man. He would not have sex on a first encounter but would wait until he knew the man a little better. “Sometimes it’s easy to make the right choice, sometimes it isn’t, but I would try to make the right choice.”

Discussion and conclusion

[50]I accept the submission made on behalf of the Official Solicitor that it is unnecessary to make any declaration as to TZ’s capacity to make decisions as to residence. At present, there is no issue about where he should live. TZ is happy living at H Home and there is no proposal that he should move in the short or medium term. Under s.2(1), a person lacks capacity if through mental impairment he is unable to make a decision for himself at the material time. Capacity is therefore time-specific. To assess capacity to make decisions that are at present hypothetical infringes the principle in s.1 that 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. Accordingly, I shall make no order on the application for a declaration as to TZ’s capacity to make decisions concerning his residence.[51]There is, however, a necessity to decide now as to whether TZ has the capacity to consent to sexual relations. In his own evidence – which took the form of a relatively informal discussion in the well of the court – I formed the clear view that TZ had an understanding of the mechanics of the sexual acts involved in both homosexual and heterosexual relations. He also demonstrated an understanding of the health risks involved in sexual relations and of the methods of avoiding and dealing with those risks. I consider that his knowledge about those matters was more than rudimentary. He plainly has, in Munby J’s phrase, an understanding of the sexual nature of the act. In this context, it is significant that he has an understanding of his own sexuality, and of how it has evolved from bisexuality to homosexuality. TZ was clear about his own orientation, but in any event it is plain that he does understand that sexual intercourse between a man and a woman can result in pregnancy. It was also clear to me that he had retained information given to him at various stages about these matters, including information imparted during the sex education sessions he has attended. My impression therefore accords with the conclusion reached by Dr X on the first and second limbs of the functional test.[52]The real issue is whether he satisfies the third limb, using and weighing relevant information. Here, Dr X identified a link between his cognitive impairments, his autism (affecting his social capacities) and his ADHD, rendering him liable to impulsivity. On this latter point, the Mental Capacity Act 2005 Code of Practice (at paragraph 4.22) draws attention (in the context of an example about eating disorders) to the fact that “some people who have serious brain damage might make impulsive decisions regardless of information they have been given or their understanding of it”.[53]As Hedley J pointed out in A Local Authority v H, however, choices in sexual relations are generally made rather more by emotional drive and instinct than by rational choice. Impulsivity is a component in most sexual behaviour. Human society would be very different if such choices were made the morning after rather than the night before. As s1(4) of the MCA reminds us, a person is not to be treated as unable to make a decision merely because he makes an unwise one.[54]It seems to me, with respect, that Dr. X is making a similar error as that made by the expert in D Borough Council v AB when he stipulates that the ability to use and weigh relevant information before consenting to sexual relations involves “a complex analysis of risks and benefits often in the abstract and hypothetical”. In D Borough Council v AB, the expert suggested that one essential ingredient of capacity to consent to sexual relations was “an awareness that sex is part of having relations with people and may have emotional consequences”. Mostyn J observed in response (at paragraph 37):
“This criterion is much too sophisticated to be included in the low level of understanding and intelligence needed to be able to consent to sex. Apart from anything else, I would have thought that a great deal of sex takes place where one party or the other is wholly oblivious to this supposed necessity.”
[55]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.[56]In any event, I am satisfied in this case, having spoken to TZ myself, that he does have an understanding of the need to weigh up the emotional consequences of having sexual relations. This was evident to me from his comment that he would rather not rush things, but would rather wait to see if he could trust the man and by his observation that “sometimes it’s easy to make the right choice, sometimes it isn’t, but I would try to make the right choice.” This insight seemed to me to be well above the level of “rudimentary” ability required.[57]Overall, I find that TZ does have the capacity to use and weigh the information to the degree required for capacity to consent to sexual relations. I think he has been significantly helped in that regard by the sensitive programme of sex education he has received. Like most people, he may behave impulsively at some point in the future, and in his case that tendency may be accentuated by his ADHD, but I do not consider that this tendency means that he lacks the ability to use and weigh the relevant information.[58]I therefore declare that TZ has the capacity to consent to and engage in sexual relations.[59]I have already made an order giving directions inter alia for a further assessment by Dr X as to TZ’s capacity to make decisions as to contact with others and as to his care needs, and for a further hearing when that report is available. I would be grateful if the parties’ advocates could agree a form of words for a further order setting out my findings in this judgment.

Cited in 18 later judgments

and 9 more of the most senior