Judge: Hedley J.
Citation:  EWHC 49
Summary: H was 29 years old and had mild learning difficulties and atypical autism. She attended special school from aged 5 to 17, Community College until aged 19 and then led an itinerant lifestyle until admitted to a psychiatric hospital (initially as an informal patient) in 2009. H’s history demonstrated both a very early and a very deep degree of sexualisation. She was highly vulnerable and exhibited dis-inhibition including a willingness to engage in sexual activities with strangers. By the time of her admission to hospital in 2009, at least one man had been convicted of a sexual offence against her. H’s admission to hospital became compulsory under s.3 Mental Health Act 1983 on 20 November 2009 and thereafter authorisation was renewed until her ultimate discharge in August 2011. Her behaviour in hospital often displayed highly sexualised and bizarre features. Attempts were made both to ascertain what she understood about sexual relations and to give some education in issues of self-protection. Proceedings were started in the Court of Protection on 16 October 2010. The Official Solicitor acted as H’s litigation friend throughout those proceedings.
On 15 December 2011, Hedley J made a number of orders that were uncontroversial on the evidence. Namely, that H lacked capacity to litigate, to determine her residence, her care and support arrangements, contact and her finances. Hedley J also held that H lacked capacity to consent to sexual relations. In light of this finding he made a consequential order in her best interests authorising a restrictive regime, including 1:1 supervision at all times – a regime which was expressly designed to prevent H from engaging in sexual relations which she would otherwise willingly do. Hedley J noted that this regime undoubtedly amounted to a deprivation of her liberty but that the parties accepted that in light of Hedley J’s finding as to H’s capacity to consent to sexual relations, the best interests judgment was sound.
In reaching his judgment on this issue, Hedley J noted that on the facts of the case, given that H had no difficulty communicating, the question of her capacity to consent to sexual relations turned on the factors set out in section 3(1)(a)–(c) MCA 2005. He was referred by the parties to five reported decisions:
(i). XCC v MB, NB & MAB  2 FLR 968 (Munby J);
(ii). Local Authority X v MM  EWHC 2003 Fam (Munby J);
(iii). R v C  UKHL 42;
(iv). DCC v LS  EWHC 1544 Fam (Roderick Wood J);
(v). DBC v AB  EWHC 101 COP (Mostyn J).
Hedley J held that none of these decisions were binding on the High Court (as it related to the Sexual Offences Act 2003, the decision of the House of Lords in R v C was obiter) and recorded that it was accepted by all counsel that the decisions could not be reconciled with one another. The Judge indicated that rather than subject each decision to critical analysis, his approach was to acknowledge those decisions, and then attempt an analysis of his own from first principles, guided by the statute, and then (and only then) to compare (and no doubt contrast) his conclusions with those reached in the five cases.
At paragraphs 20 to 21 of his judgment Hedley J held that a sexual act between humans is a complex process which has “not just a physical but an emotional and moral component as well.” He further emphasised that it is “important to remember that possession of capacity is quite distinct from the exercise of it by the giving or withholding of consent. Experience in the family courts tend to suggest that in the exercise of capacity humanity is all too often capable of misguided decision making and even downright folly. That of itself tells one nothing of capacity itself which requires a quite separate consideration.” Hedley J noted that whilst these issues arise both under the criminal and the civil law, and it would be desirable for there to be no unnecessary inconsistency in approach, capacity does arise in different contexts and, in a case such as the present, capacity has to be decided in isolation from any specific circumstances of sexual activity as the purpose of the capacity enquiry is to justify the prevention of any such circumstances arising.
In terms of the analysis to be carried out under section 3(1) MCA 2005, at paragraphs 23-26, Hedley J held the following:
“23. First comes the question of understanding the relevant information, but what is that? Clearly a person must have a basic understanding of the mechanics of the physical act and clearly must have an understanding that vaginal intercourse may lead to pregnancy. Moreover it seems to me that capacity requires some grasp of issues of sexual health. However, given that that is linked to the knowledge of developments in medicine, it seems to me that the knowledge required is fairly rudimentary. In my view it should suffice if a person understands that sexual relations may lead to significant ill-health and that those risks can be reduced by precautions like a condom. I do not think more can be required.
24. The greater problem for me is whether capacity needs in some way to reflect or encompass the moral and emotional aspect of human sexual relationships. I have reflected long and carefully on this given Miss Jenni Richards Q.C.’s challenge to formulate and articulate a workable test. In relation to the moral aspect, I do not think it can be done. Of itself that does not alarm me for two reasons: first, I think the standard for capacity would be very modest not really going beyond an awareness of ‘right’ and ‘wrong’ behaviour as factors in making a choice; and secondly, the truly amoral human is a rarity and other issues would then come into play. Accordingly, although in my judgment it is an important component in sexual relations it can have no specific role in a test of capacity.
25. And so one turns to the emotional component. It remains in my view an important, some might argue the most important, component; certainly it is the source of the greatest damage when sexual relations are abused. The act of intercourse is often understood as having an element of self-giving qualitatively different from any other human contact. Nevertheless, the challenge remains: can it be articulated into a workable test? Again I have thought long and hard about this and acknowledge the difficulty inherent in the task. In my judgment one can do no more than this: does the person whose capacity is in question understand that they do have a choice and that they can refuse? That seems to me an important aspect of capacity and is as far as it is really possible to go over and above an understanding of the physical component.
26. That then would be my analysis of the requirements for capacity to consent to sexual relations. Whilst I accept of course that human sexual relations are particularly person as well as situation specific, I would be disposed to view that in terms of whether any specific consent was (or in these circumstances) could be given. The difficulty in the Court of Protection is the need to determine capacity apart from specific persons or situations: H is in one sense a classic illustration of the problem. On the other hand one can see as a criminal lawyer the difficulties raised by a general finding in relation to a person who without knowledge of it embarks on what he thinks is consensual sexual activity. The focus of the criminal law must inevitably be both act and person and situation sensitive; the essential protective jurisdiction of this Court, however, has to be effective to work on a wider canvas. It is in those circumstances that I find myself closer to the views expressed by Munby J. (as he then was) and Mostyn J. although I have reached that position by a more tortuous route.”
On the facts, Hedley J considered that H lacked capacity to consent to sexual relations on two specific bases: first, that she did not understand the health implications of sexual relations, a matter made more serious in this case by her history of multiple partners indiscriminately accommodated; and secondly, that she could not deploy the information she had effectively into the decision making process. Those matters were evidenced both by the history of the case and the expert psychiatric assessment that had been undertaken.
Two further issues fell for consideration:
(i). H’s capacity to marry; and
(ii). H’s capacity in relation to contraception.
As to H’s capacity to marry, Hedley J noted that this raised more complex issues than capacity to consent to sexual relations but for so long as marriage requires sexual intercourse for its consummation, it must follow that the person who lacks capacity to consent to sexual relations (as H did) must lack capacity to marry. However, as H showed no present disposition to marry there was no purpose in making a formal declaration as to her capacity in this regard.
Hedley J also considered it premature to make a declaration as to H’s capacity in respect of contraception but noted that she had some basic understanding and could learn more. He therefore considered that the present focus should be on improving her education in this regard.
Comment (Jenni Richards QC, counsel for H): The uncertainty over the correct legal test for capacity to consent to sexual relations continues. In A Local Authority v H both the applicant local authority and the Official Solicitor agreed that the correct approach was that set out by, amongst others, Mostyn J in DBC v AB  EWHC 101 COP, namely that the capacity to consent to sex remains act-specific and requires an understanding and awareness (1) of the mechanics of the act, (2) that there are health risks involved, particularly the acquisition of sexually transmitted and sexually transmissible infections and (3) that sex between a man and a woman may result in the woman becoming pregnant.
The parties acknowledged, however, that neither the decision of Mostyn J nor any of the other authorities addressing this issue were binding on a High Court Judge sitting as a nominated judge of the Court of Protection. It was Hedley J who identified for debate at the hearing the question of whether the test for capacity should encompass an emotional and/or moral component. Both the local authority and the Official Solicitor argued against this proposition, and contended that a workable test encompassing the moral and/or emotional elements of human sexual relationships could not be formulated.
In a characteristically thoughtful judgment Hedley J concluded that the moral dimension, although an important component in sexual relations, can have no specific role in assessing capacity. Likewise he acknowledged the difficulty in articulating a workable test that could embrace the emotional consequences of human sexual relations. However, his judgment identifies an important additional factor, namely that P must be able to understand that they have a choice and that they can refuse. Whether this additional factor will lead to different outcomes than would be obtained from simply applying the three criteria identified in Mostyn J’s judgment remains to be seen.
Hedley J’s judgment usefully addresses the extent of understanding of the health risks of sexual relations that is required in order for P to have capacity. To expect P to have an understanding of the precise health risks associated with different forms of sexual activity and different sexually transmitted diseases might require more of P than many adults without any impairment of, or disturbance in the functioning of, the mind or brain. Sensibly Hedley J has concluded that the knowledge required is fairly rudimentary. It should suffice if the person understands that sexual relations may lead to significant ill-health and that those risks can be reduced by precautions like a condom.
Ultimately, however, Hedley J’s judgment reinforces the need for this issue to be considered at appellate level. Otherwise it is inevitable that in every case involving sexual capacity the Court of Protection Judge will have to consider the competing arguments and authorities and form their own view of the correct approach, thereby adding to the abundance of conflicting High Court authority on the point.