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Judge: Court of Appeal (Sir Andrew McFarlane P, Baker and Singh LJJ)
Citation: [2020] EWCA Civ 735
Summary
The Court of Appeal has made clear that we have been asking the wrong question in relation to sexual relations. The issue arose in the context of proceedings concerning a 36-year-old man with a complex diagnosis of autistic spectrum disorder combined with impaired cognition. The question before the judge at first instance, and in written submissions presented to this court before the hearing, was couched in different terms, namely whether a person, in order to have capacity to consent to such relations, must understand that the other person must consent. The first instance judge, Roberts J, had held the fact that the man in question, JB, could not understand that fact, did not mean that he lacked capacity to consent.
The local authority appealed, and sought to persuade the Court of Appeal that Roberts J had been wrong to exclude this information from the information relevant to the test. The Court of Appeal, however, took a different course, steered by Baker LJ (giving the sole judgment of the court).
Baker LJ started by observing that the issue – of great importance to people with learning disabilities or acquired disorders of the brain or mind – required the court to balance three fundamental principles of public interest.
“to promote, protect and ensure the full and equal enjoyment of all human rights and fundamental freedoms by all persons with disabilities, and to promote respect for their inherent dignity.”
“ … there is a need to protect individuals and safeguard their interests where their individual qualities or situation place them in a particularly vulnerable situation.”
Striking a balance between the first and second principles is often the most important aspect of decision-making in the Court of Protection. The Mental Capacity Act Code of Practice expresses this in simple terms (at para 2.4):
“It is important to balance people’s right to make a decision with their right to safety and protection when they can’t make decisions to protect themselves.”
To resolve the appeal, Baker LJ had to consider both the Act and the development of the case-law. As he noted, there is only reference to sexual relations in s.27(1) of the MCA which provides that nothing in the Act permits a decision to be made on behalf of a person with regard to a number of matters listed in the subsection including “consenting to have sexual relations.” He then conducted a very extensive review of the “somewhat confusing” (paragraph 24) case-law, which will no doubt be pored over by those who have been involved (whether directly or indirectly) in the messy evolution of how the courts have grappled with capacity and sexual relations.
Having set out the rival submissions of the local authority as appellant and the Official Solicitor on behalf of JB, Baker LJ then turned (at paragraph 91) to his analysis of the position. He started by recalling the decision-specificity of the test under the MCA 2005 which means that the ““‘information relevant to the decision” depends first and foremost on the decision in question” (paragraph 91). As he then noted:
As Baker LJ noted, the earliest caselaw decided by Munby J had framed the analysis by reference both to the question whether someone has the capacity to consent to sexual relations and also by reference to the question whether someone has the ability to choose whether or not to engage in sexual activity. However, in subsequent cases, the focus had been on the first question to the exclusion of the second. As Baker LJ noted:
Importantly, Baker LJ did not just limit himself to JB’s specific situation, but rather emphasised that “[i]n my judgment, this is how the question of capacity with regard to sexual relations should normally be assessed in most cases” (paragraph 92).
As Baker LJ then held:
The Official Solicitor had argued that, even if the decision was expressed in those terms, the relevant information should not include an understanding of the consensuality of sexual relations. However, Baker LJ held that none of the reasons stood up to scrutiny:
Baker LJ returned to the importance of striking a balance between the principle that vulnerable people in society must be protected and the principle of autonomy is often the most important aspect of decision-making in the Court of Protection. However, he did:
Baker LJ recognised that by recasting the decision as the decision to engage in sexual relations, and by including an understanding of the consensuality of sexual relations as part of the information relevant to the decision, the Court of Appeal was “moving on from the previous case-law” (paragraph 99). However, he made clear:
In summary, therefore:
(1) the sexual nature and character of the act of sexual intercourse, including the mechanics of the act;
(2) the fact that the other person must have the capacity to consent to the sexual activity and must in fact consent before and throughout the sexual activity;
(3) the fact that P can say yes or no to having sexual relations and is able to decide whether to give or withhold consent;
(4) that a reasonably foreseeable consequence of sexual intercourse between a man and woman is that the woman will become pregnant;
(5) that there are health risks involved, particularly the acquisition of sexually transmitted and transmissible infections, and that the risk of sexually transmitted infection can be reduced by the taking of precautions such as the use of a condom.
Baker LJ noted that there remained the question whether the information relevant to the decision whether to engage in sexual relations must always include all of the matters identified in the previous paragraph. Whilst he recognised that this was a matter of considerable importance, it did not arise on the appeal before the court, and the summary of the case-law that he had set out “illustrates that on several occasions judicial obiter dicta in this difficult area of the law have been initially followed by other judges, only to be rejected in later cases after hearing further argument. For that reason, it would be prudent for this Court to refrain from commenting until it has an opportunity to hear full argument on the point in a case where the issue arises on the appeal” (paragraph 103).
On the facts of the case before the court, and whilst commending the judge’s “strong commitment to the principle of autonomy, and the right of disabled people to enjoy life’s experiences to the full,” Baker LJ found “with considerable regret” that he had to part company from her:
The Court of Appeal therefore set aside the declaration that JB had capacity to consent to sexual relations. However, whilst it could have made its own declaration, Baker LJ held that it was wrong to do on the specific facts of the case, and, in particular, the way in which the issue had been analysed before Roberts J. He therefore held that the right course was to remit it to her to reconsider in light of the judgment and such further evidence as she would wish to seek. The court therefore remitted the case, making an interim declaration under s.48 of the MCA that there is reason to believe that JB lacks capacity to decide whether to engage in sexual relations.
Comment
This is an extremely significant judgment, and it is very likely that the matter will not stop there (and is likely to be by considered by the Supreme Court together with the case of Re B). By both recasting the question in JB’s case and suggesting that this is the way in which capacity with regard to sexual relations should normally be assessed in most cases, the Court of Appeal has essentially pressed the reset button on what has become an intensely tangled – and frankly unsatisfactory – series of cases. It responds to the fact that individuals with impaired decision-making capacity are not always (as some of the previous cases could be read as suggesting) purely passive recipients of sexual activity initiated by others, but can also be sexual beings wishing to express themselves by initiating sexual activity.
Alex’s view (not one necessarily shared by his fellow editors!) is that a very important consequence of this decision is that – in principle – it opens the way for a court to take the view that it is not bound by s.27 MCA 2005, which provides that nothing in the MCA permits a decision to be made on behalf of a person to consent to having sexual relations. Would it be possible to say a court (and I very specifically say court here, as it would be very challenging for anyone to take steps here without judicial imprimatur) can make a best interests decision behalf of someone to engage in sexual relations? And, if so, would this be the way in which to resolve the pragmatic but (to purists, problematic) compromise hammered out in the TZ cases (decided by Baker himself) to the situation where the person is undoubtedly at risk in some sexual encounters, but not in others? That compromise is to find that the person has capacity to consent to sexual relations but does not have capacity to make decisions as to contact, thereby enabling best interests decisions to be made in relation to contact where it is clear that the contact is for purposes of sex.
Another important consequence is that it clears the way to resolving what was otherwise a very odd potential outcome. By framing the test by reference to consent, it would be possible to find that a person could not consent solely because they did not understand that their partner needed to consent. But – as we pointed out in our note upon the first instance decision[1] – that could mean that a partner who freely initiated sexual activity with them could face criminal consequences even if there was no suggestion that the partner had any impairment in their decision-making. The interaction between the MCA and the Sexual Offences Act 2003 remains complex and difficult, but this judgment may at least have helped clear the path of some of the more tangled undergrowth.
Finally, for a perspective from a social worker, we commend the article in Community Care by Lorraine Currie, Acting Principal Social Worker and professional lead for the MCA at Shropshire County Council.
[1] Which Alex cannot help but note did question whether the right question was being asked at first instance.
Victoria Butler-Cole QC and Nicola Kohn have recorded a half-hour web conversation summarising and commenting upon this decision, available here.
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