Fennell, Letts and Wilson, Mental Health Tribunals (Law Society 2013):
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R v C (2009) UKHL 42

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For the purposes of s30 Sexual Offences Act 2003: (1) lack of capacity to choose can be person or situation specific; (2) an irrational fear arising from mental disorder that prevents the exercise of choice could amount to a lack of capacity to choose; (3) inability to communicate could be as a result of a mental or physical disorder.

Contents

Related judgments

The following is an automatically-generated list of the pages in Category:Capacity to consent to sexual relations:

  • AB v LM (2013) EWHC 1234 (COP), (2013) MHLO 139 — "I find on paying close attention to Dr P's advice, but also considering the contribution of Dr G, that Lisa does possess the abilities required to lead to the conclusion that she has capacity to make decisions about whether or not to have sexual relations. She is somebody who has been full to sexually active in the past; she has had children; she understands the rudiments of the sexual act; she has a basic understanding of issues of contraception and the risks of sexually transmitted diseases. The area in which she is weakest is her ability to understand the implications for herself should she become pregnant. Pregnancy for Lisa would be an extremely serious state of affairs; there can be no doubt about that. But her weakness in that respect does not, for me, lead to the conclusion that her capacity is absent; it argues for her to receive continued safeguarding and help, advice and explanation as and when the question of sexual activity might become a reality."
  • A Local Authority v AK (2012) EWHC B29 (COP), (2012) MHLO 166 — "This is an application by a Local Authority for the determination of an issue as to whether a severely brain damaged man ('AK') had the capacity to enter into a marriage in November 2010." [Summary required; detailed external summary available.]
  • A Local Authority v K (2013) EWHC 242 (COP), (2013) MHLO 11 — "K is the First Respondent to proceedings brought by A Local Authority (the authority responsible for K's social welfare) for a best interests' determination in relation to issues of contraception for, and sterilisation of, K. The application was issued in July 2012. By that application, A Local Authority sought declarations in relation to sterilisation and contraception and (given the perceived immediate risk that Mr and Mrs K may wish to remove K abroad for the purposes of sterilisation) an injunction to restrain the removal of K from this jurisdiction for that purpose. The application was appropriately brought to this Court under the provisions of the Mental Capacity Act 2005; the application in my view engages important considerations under article 8 (right to respect for private and family life) and article 12 (right to found a family)." [Summary required; detailed external summary available.]
  • A Local Authority v SY (2013) EWHC 3485 (COP), (2013) MHLO 96 — "It is plain from all of the evidence before me that SY lacks the capacity to litigate and the capacity to make decisions about her residence, her contact with others, her care package and to enter a contract of marriage. I find the care package proposed by the authority and the orders sought are in SY's best interests. Accordingly, I make all of the orders sought. I am satisfied that, on the facts of this case, the appropriate and proportionate course is for the court, of its own motion, to invoke the inherent jurisdiction of the High Court and to make the declaration that the ceremony in which SY was involved on 10 June 2012 was a non-marriage." [Summary required.]
  • A Local Authority v TZ (2013) EWHC 2322 (COP), (2013) MHLO 91 — "The principal issue to be determined in this judgment in proceedings brought in the Court of Protection is whether a 24-year-old man, whom I shall hereafter refer to as TZ, has the capacity to consent to sexual relations." [Summary required.]
  • A Local Authority v TZ (No 2) (2014) EWCOP 973, (2014) MHLO 72 — 'The principal focus of the latest assessments has been the issues that may arise as TZ endeavours to meet, and form intimate relations with, other men. TZ is clear that he wishes to have the opportunity to have these experiences, and all professionals involved in supporting him agree that he should be given that opportunity. The question is whether he had the capacity in respect of decisions that may have to be made when that opportunity arises. Following discussion at the hearing, it was agreed that the issues now arising can be summarised as follows: (1) What is the relevant decision in respect of which the question of capacity arises? (2) Does TZ lack capacity in respect of that decision? (3) If yes, what orders should be made in TZ's best interests? (4) Should the court appoint the local authority to act as TZ's welfare deputy?'
  • CYC v PC and NC (2012) MHLO 103 (COP) — (1) PC lacked capacity to litigate and lacked capacity to decide whether to resume married life with NC (upon the expiry of a 13-year sentence for his sexual offences against previous wives). (2) The resumption of married life with NC was lawful as being in her best interests.
  • D County Council v LS (2010) EWHC 1544 (Fam) — The original decision in this case, that LS had capacity to consent to sexual relations and marriage, was revisited in light of the House of Lords decision in R v C. (1) The MCA statutory scheme should be applied in preference to the previous civil case law; the approach in R v C clearly applied to both the civil and criminal arenas, and was consistent with s3 MCA, so would be followed. (2) Capacity requires not only an understanding of the relevant information but also the ability to retain and weigh it in the balance: therefore capacity to consent to sexual relations is person- and situation-specific, and there may be factors (such as irrational fear) impeding or undermining a person's capacity to make a choice. (3) This approach applies equally to marriage. (4) On the facts, the conclusion about capacity was the same. [Caution.]
  • IM v LM (2014) EWCA Civ 37, (2014) 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."
  • London Borough of Ealing v KS (2008) EWHC 636 (Fam) — Applications by local authority seeking declarations that a vulnerable adult lacked capacity, among other things, to marry; consent to medical treatment; have sexual relations or decide her place of residence.
  • PC v City of York Council (2013) EWCA Civ 478, (2013) MHLO 61 — "The central issue in this appeal concerns the capacity of a married woman to decide whether or not she is going to live with her husband." [Summary required; detailed external summary available.]
  • Re AB; D Borough Council v AB (2011) EWHC 101 (COP) — (1) The test for capacity to consent to sex is set at a relatively low level: 'does she have sufficient rudimentary knowledge of that the act comprises and of its sexual character to enable her to decide whether to give or withhold consent?' (2) Capacity to consent to sexual activity is act-specific, not partner-specific; decisions to the contrary were based on a conflation of capacity to consent to sex and the exercise of that capacity. (3) The test requires an understanding and awareness of (a) the mechanics of the act, (b) that there are health risks involved, particularly the acquisition of sexually transmitted and sexually transmissible infections, and (c) that sex between a man and a woman may result in the woman becoming pregnant; however, not all criteria will apply to every type of sexual activity. (4) The test does not require an understanding (a) that sex is part of having relationships with people and may have emotional consequences, (b) that only adults over the age of ..→
  • Re H; A Local Authority v H (2012) EWHC 49 (COP), (2012) MHLO 3 — "On 15 December 2011 I made an order declaring H’s incapacity in many respects and making best interests declarations as to her future care. In particular I made an order declaring that H lacked capacity to consent to sexual relations and a consequential order to protect her best interests which was very restrictive and undoubtedly amounts to the deprivation of liberty. In those circumstances I reserved my reasons for making these orders with a view to handing them down without the need for attendance of any party. This I now do." [Summary to follow.]
  • Re MAB; X City Council v MB (2006) EWHC 168 (Fam) — MAB's parents had wanted to arrange a marriage for him in Pakistan. It was declared that MAB did not have capacity to marry; therefore any marriage, even if valid in Pakistan, would not be recognised as valid in English law. His parent's undertakings not to take him to a wedding or out of Britain were accepted and his passport was returned. Any assessment of capacity to marry must take into account the question of capacity to consent to sexual relations. This involved a low level of understanding, which must be same in its essentials as required by the criminal law under the Sexual Offences Act 2003.
  • Re MM (An Adult); Local Authority X v MM (2007) EWHC 2689 (Fam) — Inherent jurisdiction case re vulnerable adult
  • Re MM (An Adult) (2007) EWHC 2003 (Fam) — Inherent jurisdiction case re vulnerable adult. [Summary required.]
  • Sandwell MBC v RG (2013) EWHC 2373 (COP), (2013) MHLO 55 — "I have been told that within the area of this particular local authority there are a number of incapacitated adults who have been the subject of arranged or forced marriages, and that it is important to send a strong signal to the Muslim and Sikh communities within their area (and, indeed, elsewhere) that arranged marriages, where one party is mentally incapacitated, simply will not be tolerated, and that the marriages will be annulled. ... Like the Official Solicitor, I am completely unpersuaded that his best interests require or justify that it is now annulled." [Summary required.]
  • Sheffield City Council v E (2004) EWHC 2808 (Fam) — HUSBAND AND WIFE — Marriage — Capacity to marry — Alleged patient wanting to marry — Local authority wishing to prevent marriage — Whether jurisdiction to apply best interests test. Since to establish capacity to marry required only the ability to understand the nature of the marriage contract and the duties and responsibilities that normally attached to marriage, there was no jurisdiction to consider whether any particular marriage was in an alleged patient's best interests. [ICLR summary.]
  • XCC v AA (2012) EWHC 2183 (COP), (2012) MHLO 80 — An arranged marriage took place in Bangladesh between DD, a British citizen with severe learning difficulties, and her cousin purely for immigration purposes. The judge: (1) exercised the inherent jurisdiction of the High Court to declare that the marriage (although valid in Bangladesh) was not recognised as a valid marriage in this jurisdiction; (2) declared that it was in DD’s best interests for an application to be made to annul the marriage, with the Official Solicitor as litigation friend; (3) stated that marriage with an incapacitated person who is unable to consent is a forced marriage within the meaning of the Forced Marriage Act 2007; and (4) stated the following guidance: 'in my view it is the duty of a doctor or other health or social work professional who becomes aware that an incapacitated person may undergo a marriage abroad, to notify the learning disabilities team of Social Services and/or the Forced Marriage Unit if information comes to light that there are plans ..→
  • YLA v PM (2013) EWHC 4020 (COP), (2013) MHLO 114 — There was a very significant possibility that PM married YLA and had a child with her for reasons solely to do with his immigration status. Parker J made interim declarations including that YLA lacked capacity to consent to sexual relations or marriage, or to decide where she should live, and provided general guidance on such forced marriage cases.

ICLR

The ICLR have kindly agreed for their WLR (D) case report to be reproduced below.

Headnote

CRIME — Sexual offences — Sexual activity with person with mental disorder impeding choice — “Any other reason” — Whether including irrational fear — Whether incapacity to choose issue-specific — Inability to communicate choice — Whether limited to physical inability — Sexual Offences Act 2003, s 30(1)(2)

Summary

The words of s 30(2)(a) of the Sexual Offences Act 2003 “or for any other reason” were wide enough to include an irrational fear preventing the free exercise of choice, and inability to communicate the choice made within s 30(2)(b) was not limited to physical inability.

The House of Lords so held when allowing an appeal by the Crown from the Court of Appeal (Criminal Division) (Lord Phillips of Worth Matravers CJ, Bean and Wilkie JJ) on 23 May 2008 allowing an appeal by the defendant, C, against his conviction at the Crown Court at Croydon (Judge Stow and a jury) of sexual activity with a person with a mental disorder impeding choice, contrary to s 30, and ordering a retrial.

BARONESS HALE said that the complainant, a 28-year-old woman, suffered from schizo-affective disorder and an emotionally unstable personality disorder and had an IQ of less than 75. On the day in question, when in a distressed and agitated state, she had met the defendant, who had offered to help her. He had taken her to a friend’s house where sexual activity had occurred. The questions certified for the Committee were whether the Court of Appeal had unduly limited the scope of s 30(1) in holding that a lack of capacity to choose could not be person- or situation-specific, that an irrational fear preventing the exercise of choice could not be equated with a lack of capacity to choose and that to fall within s 30(2)(b) a complainant had to be physically unable to choose by reason of mental disorder. The words “for any other reason” in s 30(2)(a) could encompass a wide range of circumstances in which mental disorder might rob a person of the ability to make an autonomous choice even though they might have sufficient understanding of the information relevant to making it. A mentally disordered person might be quite capable of exercising choice in one situation but not another. It was difficult to think of an activity more person- and situation-specific than sexual relations. An irrational fear could deprive a person of capacity. Mr Wormald had pointed to features in the evidence suggesting that the complainant had reluctantly exercised a choice to go along with what had been asked of her because of her fear of the consequences if she did not, but it was difficult to suggest that the jury had not been entitled to reach the verdict they had. There was no reason to limit inability to communicate to physical inability. Parliament had clearly had in mind inability the result of or associated with a disorder of the mind. The appeal should be allowed and the conviction should stand.

LORD HOPE delivered a short opinion agreeing with Baroness Hale and Lord Rodger.

LORD RODGER delivered a short opinion agreeing with Baroness Hale.

LORD BROWN and LORD MANCE agreed with Baroness Hale.

Other

[2009] UKHL 42; [2009] WLR (D) 272

HL(E): Lord Hope of Craighead, Lord Rodger of Earlsferry, Baroness Hale of Richmond, Lord Brown of Eaton-under-Heywood, Lord Mance: 30 July 2009

Appearances: Alison Foster QC and Fenella Morris (instructed by Crown Prosecution Service, Special Crimes Division) for the Crown; Richard Wormald and Rachel Kapila (instructed by Hallinan Blackburn Gittings & Nott) for the defendant.

Reported by: Michael Gardner, barrister

External link

Bailii

ICLR [2009] WLR (D) 272