Sex, risk, and public anxiety
Manchester City Council v LC! (Hayden J)
Best interests – contact – mental capacity – sexual relations
This case, concerning the sexual relationships of LC, a young woman with autism and a learning disability, received considerable public attention shortly before this judgment was handed down, a Times journalist having been given permission to access documents from the proceedings and to write about them (though without any reasoned judgment being available). The short judgment from Hayden J, who was hearing the case for the first time, summarises the proceedings with the aim of putting properly in the public domain “the issues that this case raises so that there can be, as there ought to be, appropriate and informed public debate.”
LC had been found by the court in 2016 to have capacity to: engage in sexual relations; marry; make decisions in relation to contraception. But she was found to lack capacity to; conduct the proceedings; make decisions on her contact with men; make decisions about care and residence; make decisions as to whether to enter or terminate a tenancy; decide whether or not she should access mobile phones or social networking sites.
Hayden J referred to the obvious tension to which these differing determinations of capacity gave rise, saying “[t]hus, though it may not be intuitive, it is perfectly logical, looking at capacity in an issue-specific context (as the MCA requires), to possess the decision-making facility to embark on sexual relations whilst, at the same time, not being able to judge with whom it is safe to have those relations.”
At the time of the hearing, LC was living in a residential placement with other young women, having visits from her husband five times a week including two overnight visits.
The court referred to discussion that had taken place at the hearing as to whether these limitations on LC's freedom of action in respect of her marriage could be authorised under the MCA:
There has been a legal argument as to whether the MCA, by collateral declarations, is apt to limit the autonomy of individuals in spheres where they are capacitous. In simple terms, whether the measures put in place to protect LC in those areas where she lacks capacity may legitimately impinge on her autonomy in those areas where her capacity is established. It has been canvassed that if the court is to restrict LC either in part or, potentially, fully in such a sphere (i.e. where she has capacity), the court ought only to consider such measures under the parens patriae jurisdiction of the High Court. Happily, it is unnecessary for me to resolve that issue today, indeed, it may not arise. It does require to be said that whenever a court has to curtail the liberty of an individual whether capacitous or not, the burden is acute and the responsibility grave. In future, it seems to me, where issues arise that may necessitate restrictions in areas where adults have capacity, these should be heard by a High Court Judge in the Court of Protection.
The full details of the decisions made in LC's case may yet be put in the public domain, as the court directed further expert evidence and a further hearing. From the details in this judgment, it is difficult to have an informed view on the press coverage of the proceedings previously and in particular the decision to allow LC to have male visitors to her property, in accordance with her wishes.
The proposal that cases where capacity and incapacity are found in related areas of decision-making should be heard in the High Court is understandable, but may result in a larger number of cases coming before the High Court than Hayden J anticipated. While he was correct to say that the reported cases in this arena were all heard by High Court judges, that is, in the authors' experience, more a function of the fact that High Court judges are much more likely to give written published judgments than other judges than a reflection of where these issues are decided.
It is to be hoped that the question of capacity might receive some further clarification in a public judgment in this case. Hayden J refers to the woman having significant learning disabilities, yet she is considered to have capacity to consent to marry and to have sexual relations and to make decisions about contraception, and was able to address the judge on a number of issues.
- Nicola Kohn being involved in this case, she did not contribute to this report.