On 16 July 2019, Mr Justice Hayden, the Vice President of the Court of Protection, handed down his judgment in the case of LB Tower Hamlets v NB & AU  EWCOP 27 which considered the test for capacity to consent to sexual relations.
Why is this judgment significant?
The case considered whether ‘the test’ could and should be nuanced to take account of the particular circumstances of P as opposed to simply being issue or act specific. Such an approach could be viewed as a development from previous authorities; including the recent Court of Appeal decision of B v A Local Authority  EWCA Civ 913.
The very clear message from this judgment is that it is essential to consider capacity to consent to sexual relations (and indeed when assessing P’s capacity to make decisions in all areas of life) based on the full facts of P’s situation, and with an awareness that a conclusion that P lacks capacity will be an interference with their rights.
The court did not make any conclusions as to whether NB had, or lacked capacity to consent to sexual relations, and it may be that a final judgment will be handed down in due course if the Local Authority undertake a reassessment of NB’s capacity in the light of the judgment.
- The proceedings concerned NB. She came to live in the UK in 1985 and married her husband, AU, in 1992. The marriage was contracted abroad.
- When NB first came to live in the United Kingdom she did so without her husband and there was a period where the couple were separated whilst AU made an application for permission to enter the UK.
- In May 1996 NB travelled abroad to return to live with her husband. Following a series of applications to the Home Office throughout 1997 the couple came, eventually, to live together in London. They lived with NB’s parents. A daughter was born a year later in 1998.
- NB suffers from general global learning difficult and an impairment in relation to her facility to communicate with others.
- Following remarks made by NB to her dentist regarding AU in October 2014, a safeguarding enquiry was instigated due to concerns that she might be vulnerable to sexual exploitation.
- A programme was put in place focusing on sex education, relationships, contraception, sexually transmitted diseases as well as more general issues relating to NB’s health.
- Following this work, a further assessment was undertaken by a clinical psychologist to consider NB’s range of understanding on those key issues.
- The conclusion of the assessment was that NB was unable to demonstrate an appreciation of why people got married, separated or divorced. It was concluded that she lacked the mental capacity to marry.
- In respect of her capacity to consent to sexual relations, it was considered that she lacked an understanding of the association between sexual intercourse and pregnancy. Additionally, she lacked the ability to appreciate the link between sexual intercourse and sexually transmitted disease. It followed, that she could not link various forms of contraception to the concept of averting pregnancy.
- She did not have the capacity to retain information in relation to these issues.
- It was also considered that she was unable to communicate the concept of refusal of sex to her husband.
The Local Authority made a welfare application on 5 October 2018 in respect of NB and a wide-ranging assessment of NB’s mental capacity across a number of different areas was undertaken by Dr Lisa Rippon (consultant psychiatrist). Dr Rippon concluded that she ‘could find no evidence that she understood that sexual intercourse could result in pregnancy or in sexually transmitted infections……’ and that ‘given the current case law, it is therefore my opinion that NB lacks capacity to consent to sexual relationships and once again I believe that this is a direct result of her learning disability’.
The overall legal framework
For practitioners who wish to find a ‘user friendly’ (detailed) summary of the legal framework regarding capacity to marry, to consent to sexual relations, and key principles within the MCA 2005 regarding the assessment of capacity in general, paragraphs 17- 26, 31-37, 43, 49 and 61 of the judgment are an essential read.
Key paragraphs of the Judgment
Having reviewed the case law (in some detail), Hayden J made a number of observations. It is necessary for the content of the most prominent paragraphs to be set out in full which, with my emphasis, are as follows:
- It strikes me as artificial, at best, to extract both instinct and emotion from an evaluation of consent to sex, they are intrinsic to the act itself. In many ways, of course, instinct and emotion are the antithesis of reason. However, whilst they may cloud decision making, perhaps even to the point of eclipsing any calculation of risk, they are nonetheless central to sexual impulse. To establish an inflexible criterion to what may properly constitute ‘consent’ risks imposing a rationality which is entirely artificial.
- It is important to identify that depriving an individual of a sexual life in circumstances where they may be able to consent to it with a particular partner, is not ‘wrapping them up in cotton wool’. Rather, it is depriving them of a fundamental human right. Additionally, I repeat, AU’s Article 8 rights are also engaged in this context. He too has a right to a sexual life where there is true consent and mutual desire.
- One of the central difficulties faced by practitioners, both in the court setting and in the wider community, is that the relevant tests for capacity are framed by psychologists, psychiatrists etc and a practice has developed of applying these tests as if they had the force of statute. It is necessary to emphasise that when an application is made to a judge, it is the judge who evaluates the broad canvas of evidence to determine the question of capacity.
- In simple terms, in these circumstances, it is judges not experts who decide these issues. Judges have the enormous advantage of hearing a wide range of evidence about P from a diverse field of witnesses, often including family members. As I have sought to illustrate in my analysis of the law…… the Courts have repeatedly emphasised that the tests are to be applied in a way which focus upon P’s individual characteristics and circumstances. Whilst it is difficult to contemplate many heterosexual relationships where a failure to understand a risk of pregnancy or sexual disease (consequent upon sexual intercourse) will permit a conclusion that P has capacity, it should not be discounted automatically. This is to elevate the expert guidance beyond its legitimate remit.
- …… At risk of labouring the point further, I am emphasising that the tests require the incorporation of P’s circumstances and characteristics. Whilst the test can rightly be characterised as ‘issue specific’, in the sense that the key criteria will inevitably be objective, there will, on occasions, be a subjective or person specific context to its application.
- The applicable criteria in evaluating capacity to consent require to be rooted within the clear framework of MCA 2005 ss 1 to 3. The individual tests are not binding and are to be regarded as guidance ‘to be expanded or contracted’ to the facts of the particular case. They are to be construed purposively, both promoting P’s autonomy and protecting her vulnerability.
- That there is no need to evaluate an understanding of pregnancy when assessing consent to sexual relations in same sex relationships or with women who are infertile or postmenopausal strikes me as redundant of any contrary argument. Nor, with respect to what has been advanced in this case, can it ever be right to assess capacity on a wholly artificial premise which can have no bearing at all on P’s individual decision taking. It is inconsistent with the philosophy of the MCA 2005. Further, it is entirely irreconcilable with the Act’s defining principle in Sec. 1 (2) … ‘a person must be assumed to have capacity unless it is established that he lacks capacity.’
- a monogamous marriage of some thirty years duration, where there is no history of sexually transmitted disease, is probably a secure base from which to predict that this is a very low risk for the future. It is in this context that Mr Bagchi’s absolutist approach runs the risk of ‘dressing an incapacitous person in forensic cotton wool’, to use Hedley J’s striking phrase in A NHS Trust v P  EWAC 50 (COP). It is not the objective of the MCA to pamper or to nursemaid the incapacitous, rather it is to provide the fullest experience of life and with all its vicissitudes. This must be kept in focus when identifying the appropriate criteria for assessing capacity, it is not to be regarded as applicable only to a consideration of best interests.
- What I am emphasising here is the application of ‘the Act specific test’ (to use the favoured argot), deployed in a way which promotes P’s opportunity to achieve capacity. This, as I have laboured to highlight, is nothing less than a statutory imperative. It cannot be compromised.
- The Court of Protection deals with human beings who, for a whole variety of reasons, have lost or may have lost capacity. This may be temporary, permanent, fluctuating or limited to a constrained sphere of decision taking. A declaration of incapacity whether tightly circumscribed or expansive in its scope, should not impose sameness or uniformity. The personality and circumstances of the incapacitous are as rich, varied and complex as those of anybody else. All this requires to be taken in to account when evaluating capacity in every sphere of decision taking. As practitioners and indeed as judges we must be vigilant to ensure that the applicable tests do not become a tyranny of sameness, in circumstances where they are capable of being applied in a manner that may properly be tailored to the individual’s situation. To do otherwise would, for the reasons I have set out, lose sight of the key principles of the MCA 2005.
What to take from this case
- The test for capacity to consent to sexual relations should begin by reference to the guidance endorsed by the Court of Appeal in B, but:
- The relevant information must be tailored to the specific facts of the individual case. This includes (for example) an absence of a need to evaluate an understanding of pregnancy when assessing consent to sexual relations in same sex relationships or with women who are infertile or postmenopausal.
- A conclusion that P lacks capacity cannot be reached unless all practicable steps to help them to do so have been taken without success (per section 1(3) MCA 2005).
- There must be an awareness of the consequences of a conclusion that a person lacks capacity to consent to sexual relations due to the interference with (inter alia) their Article 8 rights.
- A reminder that it is the judge, not the expert(s) who must ultimately decide whether the person has or lacks capacity to make the decision in question.
- Reporting in media coverage will need to be addressed by the ad-hoc Court of Protection Rules Committee. The court was critical of how the case had been reported following an earlier directions hearing (see  EWCOP 17), stating that ‘a great deal of the comment was sententious and, in some instances, irresponsible’.
Michael Walsh was instructed by London Borough of Tower Hamlets