(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 16 should do it (and therefore participants need to be able to distinguish accurately between adults and children), or (c) that both (or all) parties to the act need to consent to it. (5) AB did not have the capacity to consent to and engage in sexual relations, and the regime for his supervision and for the prevention of future sexual activity was in his best interests. (6) The declarations were made on an interim basis, to be reviewed in nine months, with the local authority ordered to provide sex education in the hope that he gains capacity.

Other

Before: Mostyn J

Hearing: 24/1/11

Judgment: 28/1/11

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

Citations

[2012] Fam 36, [2011] 3 All ER 435, [2011] All ER (D) 71 (Feb)

Case no COP117224583

Related cases

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

• 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.]
• 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.]
• 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.
• R v C (2009) UKHL 42 — 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.
• 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.]
• 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 ..→

Detailed summary

The following summary is reproduced with kind permission from 39 Essex Street's February 2011 newsletter.

Summary

In this case, the High Court (Mostyn J) was once again asked to consider the correct test for capacity to consent to sexual relations. The case, which received considerable publicity, concerned A, who had a moderate learning disability and had developed a homosexual relationship with a fellow service user, K. There was no evidence of an exploitative relationship, but the local authority had in addition been alerted to two incidents in which members of the public had raised concerns about A‟s behaviour in public. The local authority sought a declaration that A did not have capacity to consent to sexual relations and that he should not have sexual contact with K.

The jointly-instructed expert advised that the following factors needed to be understood for someone to have capacity to consent to sexual relations: For capacity to consent to sex to be present the following factors must be understood: (a) the mechanics of the act, (b) 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), (c) that both (or all) parties to the act need to consent to it, (d) that there are health risks involved, particularly the acquisition of sexually transmitted and sexually transmissible infections, (e) that sex between a man and a woman may result in the woman becoming pregnant, and (f) that sex is part of having relationships with people and may have emotional consequences.

The judge rejected this analysis, and the local authority‟s submission that the personality and characteristics of the sexual partner were relevant factors. He adopted the approach set out by Munby J in the cases of X City Council v MB, NB and MAB [2006] EWHC 168 (Fam), [2006] 2 FLR 968 and Local Authority X v MM and KM [2007] EWHC 2003 (Fam), [2009] 1 FLR 443, that consent to sexual relations is act-specific, not person- or situation-specific. He concluded (at paragraph 42) that the only information relevant to giving consent which the person must understand and retain is (a) the mechanics of the act, (b) that there are health risks involved including STIs, and (c), for heterosexual relations only, that sex between a man and a woman may result in pregnancy.

On the facts, the judge found that A lacked capacity because he had a very limited and faulty understanding of sexually transmitted infections, believing that sex could give you spots or measles. Clearly, A understood the mechanics of the act, because he had already engaged in sexual activity.

However, the judge refused to grant a final declaration and said that the local authority must put in place educational measures to assist A to acquire capacity. This went against the recommendation of the expert, who considered that it would not be in A‟s best interests to undergo such education. A might become confused and anxious and exhibit challenging behaviour which would jeopardise his placement.

Comment: Victoria Butler Cole

The law on capacity to consent to sexual relations is in disarray. This decision conflicts with the recent decision of Wood J in D County Council v LS [2010] EWHC 1544, and it is difficult to see how the two judgments can be reconciled (or how this judgment can be reconciled with that of the House of Lords in R v Cooper [2009] 1 WLR 1786.

Permission to appeal was granted to the local authority but it is unlikely that an appeal will be pursued given the current economic climate, and that the local authority agreed with the Official Solicitor that A lacked capacity to consent to sexual relations (albeit that they differed over the test that generated that conclusion). In the view of the authors, A‟s case would not be well suited to becoming a test case, since there was no concern about exploitation of A, and the reasons for proposing a person- and situation-specific test were far from clear. One of the difficulties with cases on capacity to consent to sexual relations is that the particular circumstances of the individual concern necessarily limit the scope of the court‟s deliberations - decisions are made in the absence of sufficient information about the circumstances in which the test may need to be applied. Thus, in this case, the lowest degree of knowledge possible was found to be needed to consent to sex. Had, for example, the judge been considering heterosexual relations, he may well have concluded that understanding not just the risk of becoming pregnant but that pregnancy itself may carry risks, was necessary. Had, for example, there been an exploitative relationship, the judge may have been more inclined to prefer a test that does not impose a blanket ban on sexual relations, but only within an exploitative relationship.

If this decision is correct, it is clear that the criminal test for capacity under s.30 of the Sexual Offences Act 2003 and the civil test are not the same; a point which was not acknowledged in A‟s case. It may also, counter-intuitively, impose more restrictions on people with learning disabilities rather than promote their sexual freedom, since where an exploitative or abusive relationship exists, the inclination may well be to „fail‟ the individual on the test for capacity (as there is inevitably a degree of flexibility about how much knowledge of, for example, STIs, is required). This could then result in a global declaration preventing sexual contact for the individual in other, non-exploitative contexts. Local authorities and those working in this area can only hope that the issue does receive consideration by the Court of Appeal in the near future.

Comment: Vikram Sachdeva, 39 Essex Street

The correct test for capacity to consent to sexual relations is a highly controversial topic. The answer depends on an examination of the philosophical basis underlying incapacity law – specifically whether it is justified (on a utilitarian basis) to prevent significant sections of the population from indulging in sexual activity in order to prevent abuse in a small number of cases, or whether fewer should be barred from sexual activity, but with a risk of abuse in a small number of cases which would have otherwise been avoided. This issue underlies another conceptual question: whether capacity to consent to sexual relations should be situation – (and therefore person -) specific, within Re MB [1997] 2 FLR 426, or whether it is not (as with marriage: see Sheffield County Council v E [2005] Fam 326). Or is the capacity to consent to marriage also situation-specific?

Further, is it essential (rather than merely desirable) for the test for capacity to consent to be identical in the criminal and the civil law? This again will depend on the purpose served by incapacity in the criminal and civil law, which may not be the same. Although a number of first instance judges have valiantly tried to square the circle (Munby J (as he then was) in X City Council v MB, NB and MAB [2006] EWHC 168 (Fam) and in Local Authority X v MM and KM [2007] EWHC 2003 (Fam); Roderic Wood J in D County Council v LS [2010] EWHC 1544(Fam); Mostyn J in D Borough Council v AB [2011] EWHC 101 (COP), and the House of Lords has expressed a view in passing (R v Cooper [2009] UKHL 42 [2009] 1 LR 1786)), ultimately the answer is a question of policy for the Supreme Court. Its judgment will certainly make interesting reading…

External links

Bailii

Adam Wagner, 'Should people with low IQs be banned from sex?' (UK Human Rights Blog, 3/2/11)

39 Essex Street, 'Court of Protection Newsletter (issue 6, February 2011)