Talking of learning disability there has been no comment on the recent case
of a ruling described as “homophobic” and “a denial of the rights of
disabled people” where a 41-year-old man has been barred from having sex
with another man until he has a better grasp of the health implications of
his act.
In the meantime, he will be closely supervised by the local council to
ensure his sexual activity is restricted to masturbation in his bedroom or
bathroom – and nothing more.
This decision was handed down two weeks ago by the Honourable Mr Justice
Mosteyn, presiding over the Court of Protection in Newcastle.
In this case, the respondent, identified only in court as “Alan”, first came
to the attention of his local authority after reports of inappropriate
behaviour towards a number of children in 2008. A year later, while sharing
local council accommodation with another man, a relationship developed,
involving penetrative anal sex (active and passive) as well as kissing,
mutual masturbation and oral sex. There is no suggestion that the sexual
activity and reports of inappropriate behaviour were linked.
Nonetheless, the local council intervened, claiming that Alan, who, with an
IQ of just 48, is classified as having a mild to moderate learning
disability, “lacked capacity to consent to sexual relations”. An order was
placed restricting further sexual contact and a regime of close supervision
was put in place.
Despite council claims that Alan had not expressed “any wish to resume
sexual activity”, the judge stated that he had asked to be allowed to have
sex again. Justice Mosteyn’s ruling examined issues surrounding consent to
sex in great detail. He noted that the degree of understanding required for
a valid consent in this area was not great, quoting long-established
precedent that “the contract of marriage is a very simple one, which does
not require a high degree of intelligence to comprehend”.
In the end, the issue boiled down to just three areas where understanding
and awareness were required: the mechanics of the sex act, the health risks
and the risk of pregnancy.
Since Alan clearly understood the mechanics well enough for his own needs,
and the risk of pregnancy was nil, the ruling boiled down to a simple
question of whether or not he understood the health risks. After hearing
evidence to the effect that Alan’s grasp of health issues was poor, the
court ruled that he did not have capacity to consent to sexual activity and
therefore the council was mandated to prevent this occurring.
Issues involved with this case centre around the power relationship of
statutory agencies and the person with learning disability. They need
'permission' to masturbate but only in the bathroom or bedroom which no
doubt do not have locks on the door so there is no privacy. The concept of
health risks needs to be debated as there is always an element of risk for
anyone who is sexually active with different partners. This is the ruling :
Neutral Citation Number: [2011] EWHC 101 (COP)
Case No: COP11724583
IN THE COURT OF PROTECTION
The Law Courts
Newcastle-upon-Tyne, NE1 3LA
28/01/2011
B e f o r e :
THE HONOURABLE MR JUSTICE MOSTYN
____________________
Between:
D Borough Council Applicant
- and -
AB
Respondent
____________________
Mr Joseph O'Brien (instructed by Local Authority Solicitor) for the
Applicant
Mr Vikram Sachdeva (instructed by Irwin Mitchell, on behalf of the Official
Solicitor) for the Respondent
Hearing date: 24 January 2011
____________________
HTML VERSION OF JUDGMENT
____________________
Crown Copyright ©
Mr Justice Mostyn:
1. I shall call the person the subject of these proceedings "Alan". The
primary issue in this case is this: what is the legal test to be applied in
determining whether Alan has the mental capacity to consent to sexual
relations? Counsel are divided on what that test should be. The secondary
issue is, if I determine that Alan does not presently have the requisite
capacity (whatever it is), whether I should make final declarations to that
effect, as contended for by the local authority; or, as contended for by the
Official Solicitor, interim declarations coupled with an order that the
local authority do provide Alan with sex education in the hope that he
thereby gains that capacity. On that footing the matter would be returned to
Court after a period for a review in order to see what progress the
education is making, with a view to making final declarations at that point.
2. Alan has been represented by the Official Solicitor, instructing Mr
Vikram Sachdeva. The local authority has been represented by Mr Joseph
O'Brien. Both are counsel of high experience in this field. I heard oral
evidence from a distinguished psychiatrist Dr Ian Hall. His evidence was
clear and forceful. Both counsel made compelling, economical and clear
submissions. The issue is highly complex - legally, intellectually and
morally. The excellence of the representation and the quality of the
evidence has not made my task any easier.
3. The story is easily told. Alan is 41. He has a "moderate" learning
disability. His IQ is assessed at 48. In terms of classification an IQ in
the range 50-70 is a "mild" learning disability. 35 – 50 is "moderate". 20 –
35 is "severe". Under 20 is "profound". The percentage of the population
that is IQ 50 or fewer is under ½ %. That said, it is a sizeable number.
4. Alan is seriously challenged in all aspects of his mental
functionality.
5. Prior to the commencement of the proceedings in July 2009 Alan had
shared a home with a man whom I shall call "Kieron" in accommodation
provided by the local authority. Alan received a care package that included
constant supervision within placement and in the community. Alan was
sociable and presented as an able man. He had, and has, a vigorous sex
drive. This has led to sexual relations with persons of both genders,
although it is not suggested that Alan has ever had heterosexual coitus.
6. At some point Alan was reported to have developed a sexual
relationship with Kieron which involved penetrative anal sex. In his oral
evidence Dr Hall explained that to his understanding Alan's sexual activity
involved kissing, mutual masturbation; oral sex (both active and passive);
and anal sex (again, both active and passive).
7. In addition to the relationship between Alan and Kieron, two events
involving Alan in 2008 prompted the local authority to make this
application.
i) On 12 September 2008 a young boy in a dentist's waiting area observed a
man touching his groin, licking his lips and was then asked by the man for
his name. The dentist's diary showed that Alan was due for an appointment at
that time.
ii) On 10 September 2008 two girls aged 9 and 10 stated that when travelling
on a bus a man had commented upon their physical appearance, touched their
upper legs and then attempted to look up their skirts. The police were
notified. On 4 October 2008 these two girls were travelling on the bus once
again, as was Alan. The girls notified the bus driver who also notified the
police. Alan was then taken to the police station and questioned. However,
the police decided that no further action should be taken against him.
8. On 10 June 2009 these proceedings were commenced. They sought a
declaration that Alan lacked capacity to consent to sexual relations and an
order authorising a restriction of contact between Alan and Kieron (and
between Alan and another person) so as to prevent further sexual relations
taking place. On 1 July 2009 District Judge Mainwaring Taylor made interim
declarations and orders to this effect. Since then Alan has been subjected
to close supervision to prevent any further sexual activity on his part,
other than private masturbation, which he is allowed to perform in the
bathroom or in his bedroom.
9. Alan now has his own accommodation, where he is closely supervised.
His relationship with Kieron has ended. The evidence of the local authority
is that he has thrived in his new placement and has not expressed any wish
to resume sexual activity. On the other hand, he has asked a representative
of the Official Solicitor to ask me, the judge, to allow him to have sex
again. When asked how he would feel if the judge would allow him to do
"these things" once again, he said "it would make me feel happy". He said,
as regards the persons under discussion, "say I want to kiss them again".
10. It has taken a long time for the case to come on for final hearing.
A previous fixture was lost for want of court time. It has also been
necessary to obtain very full reports from Dr Hall, who was jointly
instructed, and to explore his findings with him.
11. Dr Hall describes sex as one of the most basic human functions. In
its origin it is coeval with the search for sustenance. Without these two
functions human (or any) life would not exist. Thus 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 very profound aspects of civil liberties
and personal autonomy.
12. The modern law concerning this sensitive subject is explained in a
trio of cases decided by Munby J (as he then was) namely:
i) Re E (an Alleged Patient); Sheffield City Council v E and S [2004] EWHC
2808 (Fam), [2005] Fam 326, [2005] 1 FLR 965,
ii) X City Council v MB, NB and MAB (by his Litigation Friend the Official
Solicitor) [2006] EWHC 168 (Fam), [2006] 2 FLR 968.
iii) Local Authority X v MM and KM [2007] EWHC 2003 (Fam), [2009] 1 FLR 443.
Each of these cases was, however, decided before the coming into force of
the Mental Capacity Act 2005 ("MCA") on 1 October 2007. Moreover, the test
propounded by Munby J was forcefully doubted in some obiter comments by
Baroness Hale of Richmond in the House of Lords' decision of R v
Cooper[2009] UKHL 42 [2009] 1 WLR 1786. It is now said that the law is in a
state of confusion. Recently in D County Council v LS [2010] EWHC 1544 (Fam)
Roderic Wood J attempted a reconciliation of the competing views.
13. Re E (an Alleged Patient); Sheffield City Council v E and S was not
a case about capacity to consent to sexual relations. It was a case about
capacity to marry. As such, it decided nothing new but was a typically
erudite compendium of legal authority that stretched back to ancient times.
The cases that are generally held definitively to state the law concerning
capacity to marry are Durham v Durham (1885) 10 PD 80, per Sir James Hannen
P, and Re Park's Estate, Park v Park [1954] P 112, CA. In the former case
the President stated:
I may say this much in the outset, that it appears to me that the contract
of marriage is a very simple one, which does not require a high degree of
intelligence to comprehend. It is an engagement between a man and woman to
live together, and love one another as husband and wife, to the exclusion of
all others. This is expanded in the promises of the marriage ceremony by
words having reference to the natural relations which spring from that
engagement, such as protection on the part of the man, and submission on the
part of the woman.
Although reams have been written on the subject this simple proposition has
never been doubted, but, rather, has been reaffirmed time and again. To
enter into a marriage the bar of intelligence and understanding is set low.
14. The reason that this test for this particular contract is relevant
is that it was used by analogy by Munby J in the latter two cases of his
trio, which were concerned with the very question I have before me, namely
the level of mental capacity required to consent to sexual relations. The
reason for this is that a sexual component or dimension is, generally
speaking, an intrinsic part of marriage. Thus sexual fidelity is part of the
marriage agreement, so that adultery is and always has been a ground for
divorce in almost every society in almost every era. Equally, in English law
incapacity, and wilful refusal, to consummate are grounds for annulling a
marriage. They do not make a marriage void ab initio; rather they render a
marriage voidable[1]. True, as Munby J reminded us in X City Council v MB,
NB and MAB (by his Litigation Friend the Official Solicitor) at para 62, the
law has always recognised that a man may take a woman as his wife tanquam
soror vel tanquam frater. But such a marriage would, for as long as it
remained unconsummated, be potentially voidable. Therefore, I wholly agree
with Munby J that while a sexual relationship is not a vital ingredient of
marriage it is, generally speaking, implicit in the marriage agreement.
15. Thus, it can be seen that the test of capacity to marry must be very
closely related to the test of capacity to consent to sexual relations. And
it would be a very strange thing if the latter were set higher than the
former, for it would be an absurd state of affairs if a person had just
sufficient intelligence to consent to marriage but insufficient capacity to
consent to its (generally speaking) intrinsic component of consummation.
16. A long standing feature of the test of capacity to marry is that it
is status-specific and not spouse-specific. A person either has the capacity
to marry generally, or not. A woman cannot have the capacity to marry John
but not Jim[2]. See Re E (an Alleged Patient); Sheffield City Council v E
and S at para 85. The law of nullity allows for the position where a
person's consent has been forced or tricked by the other party by the
availability of the grounds of duress, mistake and fraud; but the existence
of these grounds does not in any way affect or inform the level of capacity
needed to marry.
17. Another test closely related to the matter in hand is the capacity
of a girl to consent to contraception. Whilst contraception has been
described as a form of medical treatment it is of course principally to do
with sex and the ability to have it without getting pregnant. In Gillick v
West Norfolk and Wisbech Area Health Authority [1986] 1 FLR 224, HL both
Lord Fraser of Tullybelton and Lord Scarman held that a girl under 16 could
validly consent to contraception by reference to the following test at p235:
On this part of the case accordingly I conclude that there is no statutory
provision which compels me to hold that a girl under the age of 16 lacks the
legal capacity to consent to contraceptive advice, examination and treatment
provided that she has sufficient understanding and intelligence to know what
they involve.
18. At p239 Lord Fraser explained that a doctor could prescribe
contraception to a girl under 16 without her parent's knowledge or consent
provided he is satisfied on the following matters:
(1) that the girl (although under 16 years of age) will understand his
advice;
(2) that he cannot persuade her to inform her parents or to allow him to
inform the parents that she is seeking contraceptive advice;
(3) that she is very likely to begin or to continue having sexual
inter-course with or without contraceptive treatment;
(4) that unless she receives contraceptive advice or treatment her physical
or mental health or both are likely to suffer;
(5) that her best interest require him to give her contraceptive advice,
treatment or both without the parental consent.
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.
19. Given the status or act specific nature of the requisite capacity
for marriage, or contraception, it is hardly surprising that Munby J should
have decided that the same applied to capacity to consent to sex. In X City
Council v MB, NB and MAB he stated:
[85] I should add just one observation. Questions of capacity are always
'issue specific': Sheffield City Council v E. The question of whether
someone has capacity to marry is not the same as the question whether that
person has capacity to consent to sexual relations. The two questions have
to be considered separately. That said, since a sexual relationship is,
generally speaking, implicit in any marriage, it must follow that, generally
speaking, someone who lacks the capacity to consent to sexual relations will
for that very reason necessarily lack the capacity to marry. The converse,
of course, is not necessarily true. Someone may have the capacity to consent
to sexual relations whilst lacking the capacity to marry.
And in Local Authority X v MM and KM he stated:
[86] When considering capacity to marry, the question is whether X has
capacity to marry, not whether she has capacity to marry Y rather than Z.
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: Re E (an Alleged Patient); Sheffield
City Council v E and S [2004] EWHC 2808 (Fam), [2005] Fam 326, [2005] 1 FLR
965, at paras [83]–[85]. 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.
[87] 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 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 consent 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: see X City Council v MB, NB and MAB (by his
Litigation Friend the Official Solicitor) [2006] EWHC 168 (Fam), [2006] 2
FLR 968, at para [84]. 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.
20. So the first thing that Munby J decided was that the capacity (at
whatever level it was) was act rather than partner specific. Given the
analogies of marriage and contraception this was, as I have said,
unsurprising.
21. As to the level of capacity required, in X City Council v MB, NB and
MAB Munby J said this:
[74] In my judgment, this decision of the Supreme Court of Victoria stands
as an essentially correct summary and statement of the common law rule. 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.
…
[84]. … 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, 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 (and, where relevant, to communicate their choice to their
spouse)?
…
[86] As we have seen, amongst the questions on which Dr Land was asked to
advise in this case was whether MAB has the capacity to consent to sexual
relations. In responding to that question Dr Land treated the model set out
in Re MB (Medical Treatment) [1997] 2 FLR 426 as providing what he called
'an appropriate framework'. I do not in any way criticise him for doing so,
because his letter of instructions contained no guidance for him on the
point. Applying the approach in Re MB, Dr Land asked himself what
information might be relevant to making a decision about embarking on sexual
activity. His answer was:
'Such information might include basic knowledge about the risks of
pregnancy, sexually transmitted diseases; some understanding of what is
involved in sexual activity; and an understanding of the nature of the
relationship they have with the other party.'
Applying that approach, Dr Land's conclusion, as we have seen, was that MAB
lacks the capacity to consent to sexual relations, not having, in his view,
even a rudimentary understanding of the practical issues of human
reproduction.
…
[91] … I have absolutely no quarrel with the substance of the approach which
Dr Land adopted. The matters which he considered in the passage from his
report which I have quoted in para 86 above are precisely the kind of
matters which I would expect to be considered in this context."
22. At the end, this test is really very simple, and is set at a
relatively low level: "does she have 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 simplicity and low level of this
test is set consistently with the equivalently low test for capacity to
marry.
23. In this case Dr Hall sought to supply more specificity to the simple
test propounded by Munby J. He proposed the following criteria by way of
particularisation:
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 the woman becoming
pregnant
6. That sex is part of having relationships with people and may have
emotional consequences
24. I will decide later whether these specifics or particulars do in
fact represent the current legal test.
25. Since Munby J propounded his test there have been two developments.
First, on 1 October 2007 the Mental Capacity Act 2005 came into force.
Second, on 30 July 2009 the House of Lords gave its opinions in the case of
R v Cooper. It is said that both of these developments must modify, or at
least question, the test propounded by Munby J, specifically as to whether
the capacity in question is act rather than partner specific. It is not
being suggested that either development affects the simple test as to the
necessary level of capacity. However, there is disagreement between counsel
as to whether Dr Hall's specific and particularised criteria accurately
reflect that simple test.
26. By s1 MCA it is provided:
The principlesE+W
(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.
By s 2 it is provided:
People who lack capacityE+W
(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.
…
By s3 it is provided:
Inability to make decisionsE+W
(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.
27. Mr O'Brien argues that this new general test of incapacity in ss2
and 3 does indeed modify the test propounded by Munby J, specifically by
introducing a partner-specific dimension to the question. He says that in
deciding whether someone can, or cannot, understand the reasonably
foreseeable consequences of having sex with someone else, regard must be had
to the characteristics and personality of the other person.
28. By s42(5)(a) MCA I must have regard to the contents of the Code of
Practice in deciding this point. The common law tests of capacity are dealt
with in paras 4.31 – 4.33 of the Code. A footnote to para 4.32 actually
refers to Re E (an Alleged Patient); Sheffield City Council v E and S when
mentioning capacity to enter into marriage. Para 4.33 states that the new
statutory test of incapacity is in line with the existing common law tests,
and does not replace them. It says that judges "can adopt the new definition
if they think it appropriate". If the new test is in fact different to the
common law test it would be very strange if on a case by case basis judges
could cherry pick the one to use.
29. I am not persuaded that either the Act or the Code modifies the
act-specific test of Munby J.
30. Before leaving the Act I would draw attention to s27(1)(a) and(b).
Nothing in the Act permits a decision to be made that consents on behalf of
a person to marriage, or to have sexual relations. These are decisions that
can only be made by the person concerned provided that he or she has the
requisite capacity. All the court can do is to decide if that capacity is
there.
31. On 30 July 2009 the House of Lords gave their opinions in R v
Cooper. In that case the complainant suffered from schizo-affective
disorder. She had allowed the defendant to violate her mouth with his penis
because of an irrational fear that he would harm her or even kill her. The
defendant was charged with an offence of non-consensual sexual touching
under s30 Sexual Offences Act 2003. This provides:
1. A person (A) commits an offence if:
(a) he intentionally touches another person (B),
(b) the touching is sexual,
(c) (B) is unable to refuse because of or for a reason related to a mental
disorder, and
(d) (A) knows or could reasonably be expected to know that (B) has a mental
disorder and because of it or for a reason related to it (B) is likely to be
unable to refuse.
2. (B) is unable to refuse if:
(a) 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), or
(b) he is unable to communicate such a decision to (A)
32. In her opinion, with whom the other members of the Committee agreed,
Baroness Hale of Richmond stated:
24. My Lords, I have no doubt that the answer to questions (a) and (b) is
"yes". The Court of Appeal acknowledged that this was a difficult area and
they 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 Re C (Adult:
Refusal of Treatment) [1994] 1 WLR 290, 295, approved in Re MB (Medical
Treatment) [1997] 2 FLR 426. In Re C, the patient's persecutory delusions
might have prevented him from weighing the information relevant to having
his leg amputated because of gangrene, which he was perfectly capable of
understanding, but they did not. But in NHS Trust v T (adult patient:
refusal of medical treatment) [2004] EWHC 1279 (Fam), [2005] 1 All ER 387,
the patient had a history of self harming leading to dangerously low
haemoglobin levels. She knew that if she refused a blood transfusion she
might die; nevertheless she believed that her blood was evil and that the
healthy blood given her in a transfusion became contaminated and thus
increased the volume of evil blood in her body and "likewise the danger of
my committing acts of evil". Charles J concluded that she was unable to use
and weigh the relevant information, and thus the competing factors, in the
process of arriving at her decision to refuse a transfusion (para 63). In
the same way, a person's delusions that she was being commanded by God to
have sexual intercourse, an act which she was perfectly capable of
understanding, might make her incapable of exercising an autonomous choice
in the matter.
25. 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" (s 30(2)(a)). Provided that the inability to refuse is "because of
or for a reason related to a mental disorder" (s 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 Re MB) or a blood
transfusion (as in NHS Trust v T).
26. The 2003 Act also makes it clear that the question is whether the
complainant has the capacity to choose whether to agree to "the touching",
that is, the specific act of sexual touching of which the defendant is
accused. It is, perhaps, easier to understand how the test of capacity might
be "act specific" but not "person specific" or "situation specific" if
intellectual understanding were all that was required. The complainant here
did know what a "blow job" was. Even then, it is well accepted that capacity
can fluctuate, so that a person may have the required degree of
understanding one day but not another. But that is because of a fluctuation
in the mental disorder rather than a fluctuation in the circumstances. Once
it is accepted that choice is an exercise of free will, and that mental
disorder may rob a person of free will in a number of different ways and in
a number of different situations, then a mentally disordered person may be
quite capable of exercising choice in one situation but not in another. The
complainant here, even in her agitated and aroused state, might have been
quite capable of deciding whether or not to have sexual intercourse with a
person who had not put her in the vulnerable and terrifying situation in
which she found herself on 27 June 2007. The question is whether, in the
state that she was in that day, she was capable of choosing whether to agree
to the touching demanded of her by the defendant.
27. 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 on Human Rights. 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 denied them the possibility
of making autonomous choices, while failing to protect those whose mental
disorder deprived them of autonomy in other ways.
33. These obiter remarks, coming from the very summit, have obviously
cast some doubt on whether Munby J was right to have stated that the
capacity to consent to sex is strictly act-specific. In D County Council v
LS [2010] EWHC 1544 (Fam) Roderic Wood J sought to build a bridge between
the two viewpoints. He stated:
37 It is not for me to second-guess what conclusions the Supreme Court (as
it now is) might come to if the old common-law decisions under the inherent
jurisdiction were reviewed by them in the light of the above recorded
observation made by Baroness Hale. Nor is it necessary for me to attempt to
interpret, and decide upon, whether or not phrases used by Munby J. in MAB
(paragraph 74) and MM (paragraph 87) (see for example the words emphasised
in citation in paragraph 13 above) indicated that, to his mind, the test now
contained in section 3 (1) (c) of the 2005 Act was considered by him (albeit
he expressed his reflections, if made, in succinct form) to be a necessary
part of any test of capacity in relation to the two issues of sexual
relations and marriage.
38 I have decided that such an exercise is unnecessary because, in my
judgment, the observations of Baroness Hale in paragraphs 24 to 28 in
particular of the judgment in R v C (but in the context of the whole of her
judgment) are, though framed in terms of an analysis of the relevant aspects
of the SOA 2003, so self-evidently of wide application in considering
questions of capacity in the civil as well as the criminal context that it
is impossible for me to come to any other conclusion than that the approach
adopted in those paragraphs of R v C apply to questions of the capacity, or
lack of it, to make decisions on the issue of sexual relations (and indeed
of marriage), in both the civil and the criminal arena and, in particular,
are, in my judgment, wholly consistent with the statutory requirements of
section 3 of the 2005 Act.
39 In other words the above approach accommodates the need to "understand
the information relevant to the decision", retention of that information for
a necessary period, and the requirement "to use or weigh that information as
part of the process of making the decision ……" required by section 3 (1) of
the 2005 Act.
40 In considering these matters all counsel emphasised, and I agree, that it
is necessary to discriminate between those matters which go directly to a
person's capacity (or impeded capacity, or lack of capacity) to make a
choice, and those matters which can only be relevant to a "best interests"
decision. What is necessary is that the particular sexual partner (to
continue this illustration) 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. See, for example,
the plight of the victim in R v C.
41 Further illustrations of this proposition may be seen in the cases of a
lack of capacity to consent based upon an irrational fear; for examples of
which see paragraph 24 of the decision in R v C, and the references to NHS
Trust v T (Adult Patient: refusal of Medical Treatment) [2005] 1 AER 387,
and Baroness Hale's own example at the conclusion of that paragraph.
42 These types of impediment which affect mental functioning to the extent
of undermining the ability to make a capacitous decision must be carefully
distinguished from a person's specific features which do not undermine
capacity in the same way. Another person's view of the suitability of a
particular sexual partner for the person whose capacity is being considered
is irrelevant to the determination of whether or not that person has
capacity. To take account of such a feature in determining capacity would be
risking the importation of "best interests," and runs directly counter to
section 1 (4) of the 2005 Act ["a person is not to be treated as unable to
make a decision merely because he makes an unwise decision"]. Furthermore,
as Baroness Hale pointed out in R v C, to apply such a consideration to the
determination of capacity would be, as Miss Greaney also observed in her
submissions to me, a gross failure to respect a person's autonomy, protected
by Article 8 of the European Convention for the Protection of Human Rights
and Fundamental Freedoms 1950 in relation to one of the most intimate and
personal aspects of their private life.
43 For the avoidance of doubt, it seems to me (approaching the issue of
capacity to consent to marriage on the conventional assumption that almost
invariably, but not inevitably, contemplation of marriage includes
contemplation of sexual relations within marriage) the above approach has
relevance to the issue of capacity to consent to marriage; but the
application of the above test is not dependent upon there being such a
contemplation of sexual relations.
34. The kernel of this compromise approach is of course the penultimate
sentence of para 40. Mr O'Brien praises this reasoning as perfect. By
contrast, Mr Sachdeva bravely criticises it as "incoherent". Mr Sachdeva
also criticises the reasoning of Lady Hale as conflating the capacity to
consent to sex with the exercise of capacity to consent to sex.
35. With a considerable degree of trepidation I have concluded that Mr
Sachdeva's arguments have force, although I would not for a moment go along
with his criticism of Roderic Wood J's reasoning. That reasoning is
perfectly coherent if it is accepted that the test contains a
partner-specific ingredient. In my view the analogy drawn by Munby J with
capacity to marry is faultless and is impossible to challenge successfully.
Of course Lady Hale is right to say that "it is difficult to think of an
activity which is more person and situation specific than sexual relations",
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?
36. I therefore adhere to the view of Munby J. I do not follow the
compromise approach of Roderic Wood J.
37. The next question is to decide whether the six criteria of Dr Hall
do indeed accurately particularise the simple test of Munby J. It is fair to
say that neither counsel supports the inclusion of the sixth criterion as an
essential ingredient of capacity to consent to sex (viz "an awareness that
sex is part of having relationships with people and may have emotional
consequences"). I agree. 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 deal of sex takes place where one or other party is wholly oblivious to
this supposed necessity.
38. Counsel are agreed that an awareness and understanding of the first,
fourth and fifth criteria are indeed essential ingredients of the capacity
to consent to sex. They are divided as to the inclusion of the second (age)
and third (consent). Mr O'Brien strongly argues that the law requires their
inclusion; Mr Sachdeva states that "they go beyond the factors which have
been expressly stated as being necessary elements of capacity to consent to
sex in previous case law".
39. So the question that I have to answer is this: in order to be able
to consent to sex does a person need to have a proper and full(ish)
awareness and understanding that sex should only be done by people over 16,
and that it should be consensual? It is not an answer to the question to
observe that sex with minors, and non-consensual sex, are horrible
perversions. There are plenty of paedophiles out there who through warped
ideology actually believe that it is morally acceptable to have sex with
children. Equally, the prisons have numerous rapists within their walls. But
paedophiles and rapists have the capacity to consent to sex.
40. Mr O'Brien says that this argument is over-intellectual. We are
dealing here, he says, with mentally incapacitated people, who in the terms
of s2(1) of the Act are suffering impairment of, or a disturbance in the
functioning of, the mind or brain. We are not talking about perverts who
obviously have the capacity to consent to sex. This is true enough, but 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 namely "sufficient rudimentary knowledge of what the
act comprises and of its sexual character".
41. In his evidence Dr Hall emphasised that the need for consent is one
of the very first messages that is conveyed to people with learning
disabilities who are being taught about sex. Nothing I say is intended to
diminish that obviously vital message. 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.
42. I therefore conclude that the capacity to consent to sex remains
act-specific and requires an understanding and awareness of:
o The mechanics of the act
o That there are health risks involved, particularly the acquisition
of sexually transmitted and sexually transmissible infections
o That sex between a man and a woman may result in the woman becoming
pregnant
43. 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 needed 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 practised at different times.
44. I turn to the evidence concerning Alan's understanding and
awareness. Dr Hall told me that Alan had little or no idea what female
genitalia were, or what they were for. He had no concept of sex being the
reproductive function. Although he had not asked him he thought it likely
that Alan believed that babies were delivered by a stork or found under a
bush. He had no understanding at all of heterosexual coitus. He understood
the mechanics of mutual masturbation and anal sex, with persons of either
gender. His knowledge as to health risks was very limited and faulty – he
thought that sex could give you spots or measles. Although he knew what a
condom was he was not able to put one on properly on a prosthetic penis – he
put it on inside out so it could not be rolled down.
45. It was accepted on Alan's behalf by Mr Sachdeva that as regards
heterosexual penetrative vaginal sex Alan fails all three criteria. As
regards homosexual anal and oral sex, he failed on the second criterion. Mr
Sachdeva did not press me to find that Alan had capacity to consent to, and
to engage in, homosexual (or for that matter heterosexual) sexual activity
falling short of anal or oral sex, and I am not prepared to do so given the
impossible management problems that will arise were I to do so.
46. I therefore make a declaration that at the present time Alan does
not have the capacity to consent to and engage in sexual relations. Whether
this declaration should be interim or final will be addressed below.
47. In such circumstances it is agreed that the present régime for
Alan's supervision and for the prevention of future sexual activity is in
his best interests. I will therefore order a continuance of them for the
time being.
48. This leads me to the secondary question namely whether I should make
a final declaration to that effect, as contended for by the local authority;
or, as contended for by the Official Solicitor, an interim declaration
coupled with an order that the local authority do provide Alan with sex
education in the hope that he thereby gains that capacity.
49. By s1(3) MCA it is provided:
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.
The question here is whether further steps of a sex-educative nature should
be taken to try to bring Alan up to the requisite level of capacity so that
the present régime of deprivation of liberty can, at least regards sex, be
lifted.
50. Dr Hall was quite firm in his evidence that such a project would be
a bad idea. He said that if such a project were initiated Alan may well
become confused, with raised levels of anxiety. This may make him very
anxious with a consequential deterioration in his (presently very good and
compliant) behaviour. Challenging behaviour may arise, which may put his
current placement in jeopardy. Therefore he advised against this proposal.
51. Dr Hall's evidence is wholly valid when viewed through the prism of
best interests. Yet I believe that an issue such as this must surely be
subject to a threshold akin to that of significant harm, as is applicable to
children when the state seeks to intervene under Part IV of the Children Act
1989. This must be implicit in s1(3) MCA. I am not satisfied that sufficient
practical steps have yet been taken to see if Alan can have sex, with the
result that the present régime of deprivation of liberty can be lifted.
52. I therefore order that:
i) the declarations I have made be of an interim nature;
ii) the local authority do provide Alan with sex education in the hope that
he thereby gains that capacity; and
iii) the matter be returned to Court after a period of nine months for a
review in order to see what progress the education is making, with a view to
making final declarations at that point.
53. In view of the sensitivity and importance of the matters raised by
this case I grant the local authority permission to appeal.
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