Judge: Cobb J
Citation:  EWCOP 38
AC was a 22-year-old woman with significant learning disability (IQ of 53), depression, and primary hyperthyroidism. She had a fiery temper and lived with her parents during the week. She spent the weekends with her new boyfriend, described by police as a “serial criminal”. With her long history of volatile, abusive and exploitative relationships, an urgent meeting convened by the Local Authority concluded that she required the necessary level of protection she required could only be provided by depriving her of liberty in residential care. At times AC wanted to stay with her family; at other times she indicated a strong wish to leave.
The case is noteworthy for two reasons. The first is that AC was found to lack capacity to decide on contact with others but found to have capacity to consent to sexual relations. Her lack of capacity with regard to contact resulted from her having no real understanding of the consequences of contact decisions. She had limited concept of time and could not therefore process whether something had happened in the recent past or some time ago. She also struggled with the concept of the future and found it difficult to reason or problem-solve. Her consultant psychiatrist, Dr. Milne, opined:
“she is clearly unable to judge the intentions of the people with whom she comes into contact and this has led to her being repeatedly exploited and placed in potentially dangerous situations.”
Since May 2014, AC had been in a relationship with a man who had convictions for assault and actual bodily harm against a former partner. The police found them having sex naked in a public park. There were also allegations that he had assaulted her. In fact, only 3 weeks prior to the hearing, she reported to the police that he had struck her in the face, put his hands around her throat and had threatened to kill her. She had also told her family that he had threatened her with a knife. She continued to stay with him.
In 2012, AC had given birth to a girl who was ultimately made the subject of a placement order. Dr Milne found that AC was able to discuss the basic mechanics of sexual intercourse, understood the risk of pregnancy and sexually transmitted disease, but was unable to demonstrate that she would be able to refuse to have sexual relations: “she said that even if she didn’t want sex she would have to go along with it as she wants to be ‘lovey dovey”. Dr Milne concluded that her capacity was probably fluctuating but that she was currently probably capacitous. The Local Authority and the Official Solicitor agreed that she had capacity to consent to sexual relations.
Cobb J. summarised the relevant law, including IM & LM v Liverpool City Council  EWCA Civ 37, and noted:
“The distinguished line of judges sitting in the jurisdictions of the Family Division and Court of Protection who have opined on the question of what ‘relevant information’ should inform the test of capacity in this vexed area have not sought to include within the scope of information the understanding of ‘P’ that she (or he) may at any time change her (or his) mind about consenting to sexual relations. Hedley J. considered that it would be legitimate to ask the question whether “the person whose capacity is in question understand[s] that they do have a choice and that they can refuse.””
This was important because the evidence suggested that AC might not always fully understand that she did have a choice, and/or that she could change her mind in relation to consent to sex. Given the extent to which she had been exploited, this gave his Lordship considerable anxiety and some misgivings about the consensus of opinion between the parties as to her capacity. However, on the established test, he held that she had capacity but that the issue should be kept under careful review, given its fluctuating nature.
The second feature of the case which may assist capacity assessors concerns the identification of the information relevant to the decision as to residence. On the facts of this case, the salient details were:
Given that sex involves contact, we must confess that we consider it remains a conceptual struggle that P can in law lack capacity to decide on contact with D but yet retain capacity to have sexual relations with D. Whilst the courts’ eagerness not to set the threshold for sexual capacity too high is understandable, the facts of this case demonstrate that the current test may be failing to safeguard the vulnerable from sexual abuse. If, because of significant learning disability, P feels unable to say “no” to sex with a serial criminal as she wants to be ‘lovey dovey’, this does raise serious misgivings as to why the risks posed by D should be relevant to contact decisions but not to sexual decisions.