Current case law relating to an individual’s capacity to consent to sexual relations or to marry is confusing. Arguments have been raised in many cases concerning whether capacity to consent to sexual relations is person, or act specific. It was generally considered settled that the assessment of capacity to marry was based on the general decision to marry, as opposed to on the basis of marrying person X.
The importance of getting the assessments of capacity right is crucial. The Mental Capacity Act 2005 excludes certain decisions from being made by anyone else on behalf of the individual found to be lacking capacity. This list includes an exclusion of best interests decision-making on behalf of anyone in connection with sexual relations or marriage. So if someone is found to lack capacity to make those personal and specific decisions for themselves, they cannot engage in sexual relations and they cannot marry. The rationale for this is either because the decision is so personal to the individual concerns, or because the matter is covered by other legislation. Another part of the Act does not permit anyone to vote on behalf of an individual who lacks capacity.
So if best interests decisions cannot be made in those areas, a finding that someone lacks capacity will have a huge impact on that person’s life. I have talked about the impact of assessing someone as lacking capacity to engage in sexual relations in part in my analysis of the case of DE.
The issue has been very recently considered by the Court of Appeal in the case of IM v LM & Ors  EWCA Civ 37, where the Judges gave careful consideration to the correct approach to assessing capacity of ‘protected persons’ (an individual who may or may not lack capacity on a particular matter, for which judicial determination is required). The protected party was a woman of 37 who had a history of drug and alcohol abuse. She had 3 children, none of whom lived with her. When in hospital receiving treatment for difficulties associated with excessive alcohol use, she suffered cardiac arrest leading to hypoxic brain injury, causing significant amnesia with significant moments of lucidity. Restrictions were placed on her contact with her partner (with whom she had lived for a number of years), who subsequently issued proceedings in the Court of Protection, seeking declarations that contact with him was in her best interests. The Court of Protection determined that she lacked capacity to make decisions concerning residence, care and contact with others and gave guidance on best interests for those particular decisions. She was determined as having the mental capacity to make decisions about whether or not to have sexual relations on the basis that she understood, in broad terms, the nature of the act. The Court of Protection judge felt that there was insufficient evidence to rebut the presumption of capacity and that in any event, the measures that were in place concerning residence and contact were currently sufficient to promote her well-being (set out at paragraph 18 of the judgment).
Her mother appealed the decision and amongst other reasons, the main thrust of the appeal was that the Judge failed to consider any person-specific element when assessing her capacity to have sexual relations and if that approach is applied, she did not possess capacity to consent to sexual relations.
Finding that the Court of Protection Judge had adopted essentially the correct approach and had reached the correct conclusion, the lengthy judgment takes the reader through the history of thinking in respect of capacity to consent to sexual relations. This shows a divergence of opinion between judges; some are of the view it is a person specific act: ‘it is difficult to think of an activity which is more person and situation specific than sexual relations’ (Baroness Hale in the Criminal matter R v Cooper  1 WLR 1786) and others, mainly civil cases, that it is act specific and a ‘question directed to the nature of the activity rather than to the identity of the sexual partner.’ (Munby J (as he then was) in Local Authority X v MM  EWHC 2003 (Fam)) However the Court of Appeal Judges reconcile the divergent approaches on the basis of the different contexts in which the judgments were given (at paragraph 75): “We regard the passages that have been quoted… as being correct in drawing a distinction between the generaly capacity to give or withhold consent to sexual relations, which is the necessary forward looking focus of the Court of Protection, and the person specific, time and place specific, occasion when that capacity is actually deployed and consent is either given or withheld which is the focus of the criminal law.”
The Court of Appeal had been asked to provide a pragmatic and consistent solution to the issue of assessing capacity to consent to sexual relations and agreed that to insist upon an assessment with a person-specific element would be ‘totally unworkable’ and stated that if it were for no other reason; ‘capacity to consent to future sexual relations can only be assessed on a general and non-specific basis.’
The judges were clear in the view that a person of capacity does not typically consider a huge breadth of information before making a decision whether to consent to sexual relations and to put that burden on an individual who may lack capacity due to mental disorder or illness would be paternalistic and a ‘derogation from personal autonomy.’ I would also suggest that doing so would be stepping even further away from the principle of the UN Convention on the Rights of People With Disabilities (whilst not part of our domestic law) that people with disabilities should not be treated any differently to those without.
To conclude, on two occasions the Judges reiterate one of my favourite quotes from Hedley J in A NHS Trust v P (briefly referred to in an earlier post) and I think it emphasises the reasoning behind the decision well; “the intention of the Act is not to dress an incapacituous person in forensic cotton wool but to allow them as far as possible to make the same mistakes that all other human beings are at liberty to make and not infrequently do.”
Given the movement in cases concerning the capacity to consent to sexual relations, there are some who are of the view that the capacity to marry may be looked at again in more detail in the future. There is a lot to be said for such personal decisions being person (ie the person who is going to be the Husband, Wife or sexual partner of the person concerned) specific but perhaps more to be said for a test that is practical and capable of being applied in the real world.
For a slightly less lengthy version of this post, and information about a seminar my firm is running on the subject of ‘Adults, Incapacity and their Personal Lives’ please visit Clarke Willmott’s Elderly Care and Court of Protection blog, here.