“At interview, CLF could describe where she is living including the address, what is available in the local area, the support she receives from staff and she understands that she is living there permanently rather than visiting. At the time of my interview, CLF told me that she has not been made aware of any other residences which are available to her and she is happy remaining in her current provision. Without a concrete alternative, it was difficult to get CLF to compare and contrast her current residence with another potential placement. As I will outline later in my report, I believe that she continues to lack capacity to make decisions around her care and support needs. If CLF was given the option of looking at two residences with the same type of support, she would be able to weigh-up the positives and negatives of both and would have capacity in this area. However, I do not believe that CLF would have capacity to decide to move into an environment with a level of support which did not meet her needs. In my opinion, the difficulties which CLF has with this are secondary to her Learning Disability and Autism Spectrum.”
“During my interview, CLF could describe the physical act of sexual intercourse and she could once again explain sexually transmitted infections and their potential risks. She also understood that both partners must consent to sex, that she can withdraw consent and there were times when a person could not give consent - for example, if they were drunk or unconscious. It is my view that CLF understood the relevant information, could use and weigh information, retain information and communicate her decision. It is therefore my opinion that CLF has capacity to make decisions around sexual relations.”
“At interview, CLF could name different forms of contraception, including condoms, implants, depo, oral contraceptive pill and coil and understood an explanation as to how these are used. However, in my opinion, CLF did not understand the side-effects and could not provide any benefits of using contraception. She continued to express the belief that, if she used some forms of contraception, she would not become pregnant, despite being told this was not the case. CLF believes that withdrawal is an effective form of contraception, despite being told that this was not the case. It is my view that CLF did not understand the relevant information and could not weigh-up the positives and negatives of using contraception. She appeared to struggle to retain the information which I provided to her but could communicate her decision. It is therefore my opinion that CLF lacks capacity in this area.”
“… she had left the placement without staff the previous Friday and Monday. CLF said ‘I went into town but with my ex. We did stuff. I was a bit drunk. He had a hotel and he didn’t want to be on his own’. She told me that they had unprotected sex, but her ex-boyfriend had ‘pulled out’ before he ejaculated. I asked CLF what she thought the risks of this were and initially she said ‘Get pregnant, diseases’ (including HIV) but, later in the interview, she told me that she did not think she could get pregnant. I explained that withdrawing is not a safe form of contraception.”
“1(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(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 behaviour, 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.”
“(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.”
"… the information relevant to the decision [to engage in sexual relations] may include the following: (1) the sexual nature and character of the act of sexual intercourse, including the mechanics of the act; (2) the fact that the other person must have the capacity to consent to the sexual activity and must in fact consent before and throughout the sexual activity; (3) the fact that P can say yes or no to having sexual relations and is able to decide whether to give or withhold consent; (4) that a reasonably foreseeable consequence of sexual intercourse between a man and woman is that the woman will become pregnant; (5) that there are health risks involved, particularly the acquisition of sexually transmitted and transmissible infections, and that the risk of sexually transmitted infection can be reduced by the taking of precautions such as the use of a condom."
"I consider, and the Court of Appeal in this case held at para 48, that the court must identify the information relevant to the decision "within the specific factual context of the case": see also York City Council v C at para 39."
"The information relevant to the decision includes information about the "reasonably foreseeable consequences" of a decision, or of failing to make a decision: section 3(4). These consequences are not limited to the "reasonably foreseeable consequences" for P, but can extend to consequences for others. This again illustrates that the information relevant to the decision must be identified within the factual context of each case."
“'Relevant information must include what the likely consequences of a decision would be (the possible effects of deciding one way or another) … But a person might need more detailed information or access to advice, depending on the decision that needs to be made. If a decision could have serious or grave consequences, it is even more important that a person understands the information relevant to that decision.'”
“(1) what the two options are, including information about what they are, what sort of property they are and what sort of facilities they have; (2) in broad terms, what sort of area the properties are in (and any specific known risks beyond the usual risks faced by people living in an area if any such specific risks exist); (3) the difference between living somewhere and visiting it; (4) what activities L would be able to do if he lived in each place; (5) whether and how he would be able to see his family and friends if he lived in each place; (6) in relation to the proposed placement, that he would need to pay money to live there, which would be dealt with by his appointee, that he would need to pay bills, which would be dealt with by his appointee, and that there is an agreement that he has to comply with the relevant lists of "do’s and "don’ts, otherwise he will not be able to remain living at the placement; (7) who he would be living with at each placement; (8) what sort of care he would receive in each placement in broad terms, in other words, that he would receive similar support in the proposed placement to the support he currently receives, and any differences if he were to live at home; and (9) the risk that his father might not want to see him if L chooses to live in the new placement.”
“[63] At the heart of the Local Authority’s appeal against Cobb J’s decision that B has capacity to make decisions in relation to residence is the criticism that the Judge failed to take into account information which, in accordance with the MCA s.3(1) and (4), it was necessary for B to be able to understand, to retain and to use or weigh as part of the process of making a decision, including the reasonably foreseeable consequences of deciding one way or another or failing to make the decision. The Local Authority says that the Judge’s conclusion on B’s capacity to make decisions on residence, in particular whether to move to Mr C’s property or to remain at her parents’ home or to move into residential care, was fundamentally flawed in (1) failing to take into account relevant information relating to the consequences of each of those decisions, and (2) producing a situation in which there was an irreconcilable conflict with his conclusion on B’s incapacity to make other decisions, and so (3) making the Local Authority’s care for and treatment of B practically impossible. Mr Lock submitted that the Judge’s flawed conclusion followed from his approach in analysing B’s capacity in respect of different decisions as self-contained “silos” without regard to the overlap between them. ” [64] We agree with the Local Authority. The point is simply made. We have already drawn attention to the provision in section 3(4) of the MCA that information relevant to a decision includes information about the reasonably foreseeable consequences of deciding one way or another, and to paragraph 4.16 of Chapter 4 of the Code of Practice, which provides that relevant information includes the likely effects of deciding one way or another or making no decision at all. The Judge stated (at [27] and [28]), however, that the implications of living with a particular person (here, Mr C), and the risks which this posed, were more appropriately considered under decisions on "care" and contact than residence. He further stated that the evidence showed that B did understand in broad terms the care she would receive if she lived with Mr C in contrast to living at home or in residential care, even though he concluded elsewhere in his judgment that B did not have capacity to make decisions about her care. In the circumstances, having observed (at [27]) that Dr Rippon accepted that B had a "basic understanding" in respect of all of the nine areas covered by Theis J's test, the Judge was able to reach his conclusion (in [28]) that the Local Authority had failed to discharge the burden of proving that B did not have capacity. [65] Turning specifically to B's capacity to decide whether or not to move to live with Mr C, Cobb J's decision (in [32]-[33]) to make a final declaration under the MCA s.15 that B did not have capacity to make a decision as to the persons with whom she has contact was plainly relevant. That conflicted directly with the Judge's conclusion that B had capacity to decide to move to live with Mr C. The point is reinforced by the fact that Cobb J had already granted an interim injunction prohibiting Mr C from having any contact with B. Permitting B to move to live with Mr C would presumably have placed both him and B in contempt of court for breach of the injunction. The question whether B was able to understand those consequences and to use or weigh them in a decision about whether to reside with Mr C was not explored in the judgment.”
"[A] wider test would create a real risk of blurring the line between capacity and best interests. If part of the test were to involve whether the woman concerned understood enough about the practical realities of parenthood, then one would inevitably be in the realms of a degree of subjectivity, into which a paternalistic approach could easily creep. What exactly would the woman have to be able to envisage about parenthood, who would decide, and just how accurate would her expectations have to be? Butler-Sloss LJ put it this way in Re B (consent to treatment: capacity)2002 1FLR1090 : "… if there are difficulties in deciding whether the patient has sufficient mental capacity, particularly if the refusal may have grave consequences for the patient, it is most important that those considering the issue should not confuse the question of mental capacity with the nature of the decision made by the patient, however grave the consequences. The view of the patient may reflect a difference in values rather than an absence of competence and the assessment of capacity should be approached with this firmly in mind. The doctors must not allow their emotional reaction to or strong disagreement with the decision of the patient to cloud their judgment in answering the primary question whether the patient has the mental capacity to make the decision."
"63. Contrary to my initial view as to the very wide ambit of the words "the reasonably foreseeable consequences" of deciding one way or another on contraception, I have concluded that the 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 (let alone born) 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. Further, if one were to admit of a requirement to be able to foresee things beyond a child's birth, then drawing a line on into the child's life would be nigh impossible. 64. So in my judgment, the test for capacity should be so applied as to ascertain the woman's ability to understand and weigh up the immediate medical issues surrounding contraceptive treatment ("the proximate medical issues" - per Mr O'Brien), including: (i) the reason for contraception and what it does (which includes the likelihood of pregnancy if it is not in use during sexual intercourse); (ii) the types available and how each is used; (iii) the advantages and disadvantages of each type; (iv) the possible side-effects of each and how they can be dealt with; (v) how easily each type can be changed; and (vi) the generally accepted effectiveness of each. I do not consider that questions need 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."
“[57] When delivering a plan to address TZ's lack of capacity to decide whether someone with whom he may wish to have sexual relations is safe, the principal focus should be on educating and empowering him to make these decisions. Any provisions in the plan directed at protecting him and restricting his contact should be seen as interim measures until the time when he acquires skills to make such decisions for himself. [58] To that end, the plan should contain the following features. [59] First, a named worker should be identified and tasked with the specific role of overseeing a programme of education and empowerment. That professional should be someone suitably trained and equipped in these matters. He or she should identify all resources available for the assessment of risk and educating persons with limited capacities to identify and assess risk. TZ should be supported in accessing these education programmes and ways should be identified to assess and check the development of his understanding of these issues. At present, this support is provided by GB, a learning disabilities nurse, who has been assisting TZ to develop his social and interpersonal skills. Evidence to date suggests that TZ does respond to education of this type. Dr X thought it might take 4 to 5 years for TZ to acquire capacity by these means, but the local authority believes that this may be unduly pessimistic. [60] Secondly, advice and assistance should be sought from LGBT groups, who are likely to have resources which TZ and his support workers will find helpful. It would be particularly helpful to identify someone within the lesbian and gay community who can provide TZ with peer support. [61] Thirdly, his support worker should devise a programme of social activities to which TZ can be introduced. This will involve visiting pubs, cafes, clubs and other venues, checking to see if the milieu is likely to be of interest to TZ, and one in which he is likely to be safe.”
“However, at interview, she told me that she did not want to use contraception because she believed it would make her infertile. CLF also believed that it would stop her periods and she wanted to have periods so that she could tell her children what having them was like, so I told her that this was not the case. I then described different forms of contraception, their potential side-effects, explained that they were generally safe and told CLF that use of a condom also prevents sexually transmitted infections. However, she continued to tell me that she did not to use contraception because she wanted to have children in the future (perhaps when she was aged twenty-seven or twenty-eight years).”