B v A Local Authority  EWCA Civ 913
What should assessors and the courts do where someone appears to have capacity in some areas of decision-making but to lack capacity in related areas?
A well-known problem
This conundrum is well known and hard to resolve. It most often arises where an individual has capacity to consent to sexual relations but lacks capacity to make decisions about contact. Sexual capacity one of the lowest hurdles to jump because for people of full capacity that decision is often “visceral rather than cerebral, owing more to instinct and emotion than to analysis” (In re: M (an adult) (capacity: consent to sexual relations)  3 WLR 409 para 80). A decision about contact is considered to require more analysis and the bar is accordingly higher. What happens where someone has capacity to consent to sexual relations but not to make decisions about contact with their preferred partner?
The problem received intense press scrutiny last year in a well publicised case before Hayden J in which a young woman was found to have capacity to consent to have sex and to marry, but to lack capacity to make decisions about contact (Manchester City Council Legal Services v LC & Anor  EWCOP 30). In that case, Hayden J did not have to resolve the profound question ‘whether’, as he elegantly put it, “the MCA, by collateral declarations, is apt to limit the autonomy of individuals in spheres where they are capacitous”, but said that any such case should be heard by a High Court judge.
B’s conflicting capacity
This case takes that contradiction to a higher level. B is a 31 year old woman with learning difficulties. When she receives information which she does not want to hear she often becomes dismissive and verbally aggressive. She is a heavy user of social media and has been known to send intimate photographs of herself to strangers. In this way she met C, a man in his 70s who has been convicted of multiple sexual offences and is subject of a Sexual Harm Prevention Order. She wants to live with C and have his baby. She does not believe that he has a history of offending.
Cobb J held that B had capacity to make decisions about residence but not about care, contact or use of social media, nor to consent to sexual relations. He considered that she had had capacity to consent to sexual relations on previous occasions, and that she might develop capacity to use social media, and he made only interim orders in those areas. Nonetheless, B therefore had capacity to decide to live with somebody but not to have contact with him, receive care from him or consent to sex with him.
The local authority argued that it was wrong to treat decisions about care, contact and sexual relations as not being relevant information to the decision about residence.
Cobb J had referred to the artificiality of treating capacity question separately but considered he was bound to do so by the authorities about each particular area and the statutory requirement that the assessment relates to a particular decision (York City Council v C  2 WLR 1).
The Court of Appeal concluded that the decision that B has capacity as to residence:
- Failed to take into account relevant information relating to the consequences of the decision;
- Produced irreconcilable conflict with the decisions as to capacity in other areas; and
- Made the local authority’s care for B practically impossible.
The Court of Appeal considered the decision that B lacked the capacity to decide about contact with other people “conflicted directly” with the Judge’s conclusions that she has capacity to decide to live with C. There was already an interim injunction prohibiting C from contact with B. In fact C has received a suspended prison sentence for breaking it. What would happen if they lived together?
Further, there was a “direct conflict” between the finding that B that has capacity to decide to live with C but that she does not have capacity to consent to sexual relations with him. Her reason for living with him was to have his baby.
Finally, since C lacks capacity to make decisions about her care there was some difficulty with the decision that she could decide where to live (since that involves some understanding of the level of care which would be available).
- Conflicting capacity decisions
The judgement will be used to argue that capacity cannot be assessed in “silos” without regard to the overlap between them. It is unlikely that the judgement can sensibly be used to support the argument that capacity decisions in these areas must be the same – that would be a radical departure from the MCA. However, it may be that assessors, practitioners and courts should be more reluctant to find, for example, that someone has capacity to consent to sexual relations but not to make decisions about contact.
- The relevant information
The judgement is a useful one stop shop for implied approval of the information which someone is usually required to understand in an assessment of capacity in relation to residence, care, contact, sexual relations and use of social media. It also helpfully confirms the status of the list of relevant information for decisions about residence, care and contact set out by Theis J in LBX v K, L, M  EWHC 3230 (Fam). This list is sometimes parroted out in COP cases regardless of the specific circumstances; the Court has usefully reminded us that such lists are not more than a starting point for consideration, saying: “we see no principled problem with the list provided that it is treated and applied as no more than guidance to be expanded or contracted or otherwise adapted to the facts of the particular case.”
- Relevant information for sexual relations
In particular, the Court approved a list of 5 factors in relation to the capacity to consent to sexual relations, which is slightly broader than is generally understood. The Court rejected the argument that the relevant information comprises only a rudimentary knowledge of what the act comprises and a basic knowledge about the risks of pregnancy and STD.
First, the Court of Appeal agreed that the awareness of choice was fundamental to the question of capacity, approving Parker J’s dictum on The London Borough of Southwark v KA  EWCOP 20 at  that “The ability to understand the concept of and the necessity of one’s own consent is fundamental to having capacity”. The Court did not disagree with Cobb J’s conclusion that this point can also be framed as a requirement that the information a person has to understand in order to have the capacity to consent to sexual relations includes that “there is an opportunity to say no”.
Secondly, the Court took a pragmatic approach, saying that the “practical purpose of understanding” the risk of STDs was the knowledge of how to reduce that risk (“since the purpose cannot be to encourage abstinence”). The “reasonably foreseeable consequences” of the decision to have sex therefore include not only the risk of catching an STD but also the possibility of protecting against that risk by using a condom.
- Specificity in capacity decisions
It is usual for capacity declarations to be put in the most general terms, for example “X lacks capacity to make decisions about where to live”.
The Court of Appeal did not discuss how to frame declarations, but it did say that “capacity determinations are specific to particular matters that arise for decision at the time a determination is required to be made about a person’s capacity” (para 7).
A good assessment will put specific decisions to the person being assessed. Should declarations be similarly specific? For example should a declaration take the form “X lacks capacity to decide whether to live at Y care home or 24 High Street?” One obvious difficulty with this is what happens when, 6 months later, the person proposes a different living arrangement, for example moving in with a partner. At present the broad capacity declaration might (and might wrongly) be taken as applying. Is that approach too restrictive? Alternatively is a re-assessment on each occasion unrealistic?
The question of how specific to be is perhaps particularly acute for contact decisions (see York City Council v. C  2 WLR 1.
- Practitioners should also note the Court of Appeal’s comment that a capacity assessment “is not a general knowledge test”. A person whose capacity is being assessed does not need to be “permanently aware of how sexually transmitted infections may be caught”. They need to be able to understand those matters when explained to them and able to retain the information sufficiently to decide whether to consent to sexual relations. Applying the tests in this way may lead to more people being found to have capacity in this area.
- How to appeal
The Court of Appeal reminded us of the need to separate succinct grounds of appeal from skeleton arguments and that appeals lie against orders and not reasons.
David Lawson practices in all areas of health, education and social care including cases determining capacity in all of the above areas and medical treatment.