IM v LM  EWCA Civ 37,  MHLO 1
"On the basis that we have described, we hold that the approach taken in the line of first instance decisions of Munby J, Mostyn J, Hedley J and Baker J in regarding the test for capacity to consent to sexual relationships as being general and issue specific, rather than person or event specific, represents the correct approach within the terms of the MCA 2005. We also conclude that this approach is not, in truth, at odds with the observations of Baroness Hale, which were made in a different legal context." [Permission to appeal to the Supreme Court was refused, the Supreme Court observing "[t]here is definitely a point of general public importance here but this is not a suitable case in which to consider it".]
The ICLR have kindly agreed for their WLR (D) case report to be reproduced below.
MENTAL DISORDER — Sexual relations, consent to — Capacity — Person suffering significantly deteriorated mental function after surgery — Whether capacity to consent to sexual relations — Whether test for capacity to marry or to experience sexual relations including consideration of person’s ability to use and to weigh relevant information
IM v LM and others
!;  WLR (D) 31
CA: Sir Brian Leveson P, Tomlinson, McFarlane LJJ: 23 January 2014
The test for determining whether a person enjoyed capacity to marry or to experience sexual relations included an evaluation of the person’s ability to use and to weigh relevant information.
The Court of Appeal so held in dismissing the appeal of IM (“the mother”) against the decision of Peter Jackson J in the Court of Protecton that her daughter, LM, should be treated as possessing the capacity to make decisions about whether or not to have sexual relations. AB, LM’s friend and romantic companion, and Liverpool City Council, who had responsibility for LM’s protection and rehabilitation, were also respondents. During surgery in 2010 LM suffered a cardiac arrest leading to a hypoxic brain injury, causing significant amnesia with moments of lucid thought. Her memory loss caused her confusion and distress. In September 2010 she was placed in a specialist unit for the purposes of extensive rehabilitation and in the period since, on occasions, she had been calm. She had, however, also displayed frustration and agitation, accompanied by physical and verbal aggression to staff and other service users. By January 2013 she was reported as having made good progress. It was found at first instance that LM possessed the abilities required for capacity to make decisions about whether or not to have sexual relations.
SIR BRIAN LEVESON P, giving the judgment of the court, said that the court had considered with care the apparent conflict between the approach taken in the reported cases at first instance and the obiter observations of Baroness Hale of Richmond in R v Cooper (Gary Anthony)!. The apparent distinction of approach seemed to arise in respect of Baroness Hale’s concern that Munby J was advocating an approach to the evaluation of capacity to consent to sexual relations which, in contrast to other areas of capacity, did not involve the need to consider whether the individual was able to use and to weigh the relevant information. The present court’s reading of the various judgments of Munby J (for example X City Council v MB  2 FLR 968Not on Bailii! and Local Authority X v MM !) prior to the House of Lords decision in R v Cooper ! was that he was drawing a distinction between the extent of the judicial investigation required as between a “complex” decision, say, to consent to medical treatment, which would typically involve obtaining expert evidence, and a more straightforward decision, such as marriage or consenting to sexual relations, which ought not to require (and did not typically receive from a person of full capacity) such a refined analysis. The distinction drawn, therefore, related to the extent of the judicial exercise, and not to its content or structure. If Baroness Hale, as seemed to be the case, understood Munby J to be saying that consideration of the ability to “weigh” up relevant information had no place in determining capacity to consent to sexual relations, that was a misunderstanding. Munby J’s express endorsement of the MB case test as applying to all decisions and his incorporation of section 3(1)(c) of the Mental Capacity Act 2005 into his judgment in the MM case, which in turn he held was the same test as in MB, strongly indicated that he was not seeking to apply a different test which did not include evaluation of ability to “weigh” the capacity to marry or to consent to sexual relations. If, however, Baroness Hale was right and, contrary to the present court’s interpretation of Munby J’s words, he was intending to apply a test as to marriage and sexual relations which did not include the ability to use and to weigh relevant information, then the court would unhesitatingly hold that Munby J was in error. For the avoidance of doubt, every single issue of capacity which fell to be determined under Part 1 of the Act had to be evaluated by applying section 3(1) of the 2005 Act in full and considering each of the four elements of the decision-making process set out at (a) to (d) of the subsection. A person was unable to make a decision for himself if he was unable to undertake one or more of the following four functions: “(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).” The extent to which, on the facts of any individual case, there was a need either for a sophisticated, or for a more straightforward, evaluation of any of those four elements would naturally vary from case to case and from topic to topic.
Appearances: Richard Gordon QC and Matthew Stockwell (instructed by Peter Edwards Law, Liverpool) for the appellant; Jenni Richards QC and Jonathan Butler (instructed by Hogans Solicitors, Rainhill, Liverpool) for LM; Adam Fullwood (instructed by Quality Solicitors, Jackson & Canter, Liverpool) for AB; James Gatenby (instructed by the City Solicitor, Liverpool) for Liverpool City Council.
Reported by: Durand Malet Esq, Barrister.
© 2013. The Incorporated Council of Law Reporting for England and Wales.