Citation:  EWHC 2322 (COP)
Summary: This is the latest decision concerning capacity to consent to sexual relations. In a scenario which will not be unfamiliar to lawyers working in this area, while the local authority and Official Solicitor agreed that TZ did have capacity to consent to sexual relations, the psychiatrist who assessed TZ concluded that he lacked capacity in this regard.
TZ was a 24 year old man with mild learning disabilities, atypical autism and ADHD. He had been in a homosexual relationship for some three years. The independent expert psychiatrist in the proceedings concluded that TZ lacked capacity to consent to sexual relations because he could not use and weigh the relevant information as a result of his cognitive impairments, “specifically, symptoms associated with his ADHD (including distractibility and impulsivity), and those associated with autism (abstract thinking/imagination difficulties and intense interests) together with his intellectual impairment are still likely to significantly interfere with his ability to use and weigh relevant information. Other psychological factors such as early attachment issues, emotional factors related to his traumatic experiences are also likely to contribute.” Under cross-examination, the psychiatrist stated that “[t]he problem lay not so much with his cognitive difficulties but rather with the impulsivity that is a feature of his ADHD, coupled with “his social tendency to trust people in an unexamined way.” However, the psychiatrist’s evidence was rejected because he had mistakenly considered the process of weighing up the relevant information to be a complex one:
“Most people faced with the decision whether or not to have sex do not embark on a process of weighing up complex, abstract or hypothetical information. I accept the submission on behalf of the Official Solicitor that the weighing up of the relevant information should be seen as a relatively straightforward decision balancing the risks of ill health (and possible pregnancy if the relations are heterosexual) with pleasure, sexual and emotional brought about by intimacy. There is a danger that the imposition of a higher standard for capacity may discriminate against people with a mental impairment.” (paragraph 55)
In any case, the judge heard evidence from TZ himself and was satisfied that TZ did “have an understanding of the need to weigh up the emotional consequences of having sexual relations.”
Referring to the apparent conflict within the existing case-law as to whether capacity to consent to sexual relations is act-specific or person/situation-specific, Baker J adopted the act-specific approach of Mostyn J in D Borough Council v AB  EWHC 101 (Fam), observing that it was “more consistent with respect for autonomy in matters of private life, particularly in the context of the statutory provisions of the MCA and specifically the presumption of capacity and the obligation to take all practical steps to enable a person to make a decision. To require the issue of capacity to be considered in respect of every person with whom TZ contemplated sexual relations would not only be impracticable but would also constitute a great intrusion into his private life” (paragraph 23).
Baker J also held that where it has been clearly established that P is homosexual, “it is ordinarily unnecessary to establish that the person has an understanding or awareness that sexual activity between a man and a woman may result in pregnancy” since pregnancy is not a foreseeable consequence of homosexual sex. The judge did however note that where P has been at times attracted to both men and women, “it will be necessary to establish an understanding and awareness of the fact that sex between a man and a woman may result in pregnancy as part of the assessment of capacity to consent to sexual relations” (paragraphs 31-3).
Comment: Once again the High Court has taken the act-specific approach to the assessment of capacity to consent to sexual relations – perhaps unsurprisingly in the context of a case where P has been in a longstanding relationship, rather than, as in other cases, the subject of exploitation or sexual abuse. The Court of Appeal is shortly to consider whether the act-specific approach is the right one, which may go some way to resolving the uncertainty that practitioners currently face.
This case is yet another example of the Court of Protection rejecting expert psychiatric evidence, which must cast some doubt on whether the approach to capacity that the court takes is being properly disseminated, and whether an overly-high threshold for capacity is being applied generally in decisions that do not come before the court. The description by the psychiatrist in this case of TZ’s inability to use and weigh information seems in great contrast with the record of TZ’s oral evidence contained in the judgment – but it appears that the psychiatrist’s real concern was that because of TZ’s tendency to trust people automatically, he would not be able to assess the particular risks and consequences of a sexual encounter. While the judgment notes that this was said to be conflating an unwise decision with an incapacitous one, that is not necessarily correct. If TZ was actually unable to consider the risks of sexual encounters with different people (for example his partner, a carer, or a stranger) because of his cognitive limitations and mental impairments, then arguably that could mean he lacked capacity to consent to sexual relations, at least in circumstances where risks existed which he could not recognise or weigh up. It may be that the right answer in such cases, from the perspective of the civil law, is to say that capacity should be continue to be presumed as the alternative is a major intrusion into P’s daily life – as Baker J said in this case – but, of course, the same applies in respect of contact decisions in light of the Court of Appeal decision in PC and NC v City of York Council  EWCA Civ 478. The reality surely is that practitioners will not assess capacity at every turn, but only when specific risks exist which raise a concern about P’s capacity to make a particular decision, as is generally the case at present.
It will be of great interest to see future judgments in these proceedings, as the court noted that having established TZ has capacity to consent to sexual relations, it may yet be the case that his ability to engage in sexual relations with his partner might be curtailed if he lacks capacity to make decisions about contact with his partner. What scope does the court have to interfere with freedom of sexual expression through the mechanism of best interests declarations as to contact?