B v A Local Authority  EWCA Civ 913
Overlap between different decisions, sex (1) "The important questions on these appeals are as to the factors relevant to making the determinations of capacity which are under challenge and as to the approach to assessment of capacity when the absence of capacity to make a particular decision would conflict with a conclusion that there is capacity to make some other decision." (2) The Court of Appeal also decided on what is necessary to have capacity to consent to sexual relations.
Permission to appeal was refused by the Supreme Court (Lord Hodge, Lady Black, Lord Kitchin) on 13/10/20 for the following reason: "Permission to appeal be refused because the application does not raise a point of law of general public importance which ought to be considered at this time bearing in mind that the issue has already been the subject of judicial decision and reviewed on appeal."
The ICLR have kindly agreed for their WLR (D) case report to be reproduced below.
Court of Appeal
B v A Local Authority
2019 May 14, 15; June 11
Sir Terence Etherton MR, King, Leggatt LJJ
Mental disorder— Capacity— Determination— Local authority applying for declarations of lack of capacity in respect of woman with learning difficulties— Judge granting declarations that woman lacking capacity to make decisions as to her care, contact with others and use of social media but concluding she had capacity to decide where to reside— Self-contained approach to relevant information producing anomalous results— Whether correct test for capacity applied— Whether relevant information identified— Mental Capacity Act 2005 (c 9), ss 1, 2, 3
The local authority was responsible for providing care to B, a woman who had learning disabilities, epilepsy and social care needs. Having learnt that B wished to cohabit with a man who had been convicted of multiple sexual offences, the local authority applied for declarations that B lacked capacity to make a range of decisions. The judge made interim declarations under section 48 of the Mental Capacity Act 2005 that B lacked capacity to consent to sexual relations or to make decisions about her care, contact with others and use of social media, but concluded that she had capacity to decide where to reside.
On B’s appeal and the local authority’s cross-appeal—
Held, appeal dismissed and cross-appeal allowed. The decision-specific determination of capacity under Part 1 of the Mental Capacity Act 2005 required a functional approach, assessing whether an individual was able, at the time when a particular decision had to be made, to understand its nature and effects. A list or guideline of relevant information for a decision as to capacity in relation to specific issues including care, contact, residence, social media and internet use or consent to sexual relations, was to be treated and applied as no more than guidance to be expanded, contracted or otherwise adapted to the facts of the particular case. Information relevant to a decision included information about the reasonably foreseeable consequences of deciding one way or the other. In relation to capacity to consent to sexual relations, the critical assessment was of whether the person being assessed had the ability, when those matters were explained, to understand the risk of catching a sexually transmitted disease through unprotected intercourse and the protection a condom might provide, the ability to retain that information for a period of time and to use or weigh it in deciding whether or not to consent to sexual relations. Where a number of decisions on capacity were in issue they were not to be regarded as self-contained when in fact they overlapped, to avoid the risk of conflicting conclusions on capacity being reached. The judge had analysed capacity in respect of different decisions taking a self-contained approach, not taking into account the overlap between those decisions and consequently had reached irreconcilable conclusions. As a result his determination on residence could not stand (paras 35–36, 44, 56–60, 62–70).
Decision of Cobb JM reversed.
Sam Karim QC and Francesca Gardner (instructed by MJC Law) for B.
David Lock QC and Simon Garlick (instructed by Legal and Democratic Services, A Local Authority) for the local authority.
[Reported by:] Susan Denny, Barrister
Mental Capacity Act 2005 (c 9), ss 1, 2, 3