Judge: Cobb J
Citation:  EWCOP 15
This case concerned the decision-making capacity of AF, a 45 year old married woman with mild learning disability, type 2 diabetes, depression and frontal lobe dementia. AF had problems communicating and expressing herself as well as difficulties understanding language. Her presentation was described as very complex. SF had been married to a man called AF for nearly 25 years. AF was significantly older than her and retired. By the time the matter came on for hearing before Cobb J, AF had been discharged as a party.
The Official Solicitor and the applicant local authority had agreed that SF lacked the capacity to litigate, and make decisions about her care, residence, property and affairs, entering and terminating a tenancy, and contact with others. The matter that came for determination before Cobb J was whether she had capacity to consent to sexual relations and whether she had capacity to have contact with SF in distinction from having contact with others. It was the local authority’s case that SF had capacity in respect of both of these areas. By the conclusion of the oral evidence, the Official Solicitor did not actively oppose the local authority’s case.
What became clear from the evidence of the jointly instructed consultant psychiatrist, Dr Donovan, was that SF’s presentation had shifted significantly in the previous year or so. While she had previously been described as funny and outgoing, AF now described her as having almost no personality at all. It was thought that this was due to her dementia.
Dr Donovan had concluded that SF lacked the capacity to make decisions about contact with third parties because she had difficulty interpreting the subtle verbal and non-verbal cues of others thus impacting on her ability to process information and appraise the appropriateness and safety of the behaviour of others in order to make a decision about her interactions with them.
However, in relation to her capacity to make decisions about her contact with her husband, Dr Donovan took a different view stating that SF retains and used her premorbid level of knowledge about her husband when making decisions about contact with him. As he noted, “[t]here is evidence in dementia that the understanding and conduct within well-established long-term relationships remain intact for some time, and this appears to be the case here’. Dr Donovan explained the difference between:
Dr Donovan’s evidence was that, where her husband was concerned, SF has a semantic memory which enabled her to know “that she has feelings for him, that she knows how he makes her feel. She is able to tell if he is in a good or a bad mood”’ However with strangers she has no such memory. This was the basis upon which Dr Donovan concluded that SF had capacity to make decisions about contact with AF but not with strangers.
An additional complication in the assessment of SF’s capacity to consent to sexual relations, and one that is not uncommon, as the fact that SF was described by the judge (in his paraphrasing of the evidence before him) as a “biddable” woman ,who was happy to be led by her husband. Disentangling what was attributable to her passivity and what to her disorder of mind was complex. This was particularly so given the evidence that SF considered that that males take the lead in deciding when to have sexual relations and women do not refuse to have sex as this would negatively impact on the relationship. Dr Donovan concluded that
Cobb J found that SF lacked capacity to make decisions about contact with others, but that she had capacity to make decisions about consenting to sexual relations and contact with her husband.
This is a fascinating judgment, in particular because of the granular detail that Dr Donovan gave to illustrate precisely how he understood SF’s mind to work. It drew upon what is known about how dementia impacts on the mind, namely that it does not have a uniform effect on all aspects of the mind, also sought to distinguish carefully between SF’s ability to use and weigh different types of information dependent on how she has obtained it. If only all capacity assessments (and, in turn, determinations – i.e. decisions upon capacity) in difficult cases such as this could descend to this level of detail. Whether or not one agrees with the conclusion, the route by which it was reached was clearly and transparently spelled out.
We also anticipate that the difference between semantic and episodic memory is likely to be the focus of many a letter of instruction and cross examination question in the future!