Judge: Court of Appeal (Sir Brian Leveson, President QBD, Tomlinson and McFarlane LJJ)
Citation:  EWCA Civ 37
Summary: This decision of the Court of Appeal considers the test of capacity to consent to sexual relations. LM was a 41 year old woman who had three children. She was also described as having an extensive history of drug and alcohol abuse and convictions for offences related to prostitution. After having her children she had suffered a hypoxic brain injury following a medical procedure, which had caused her problems with her memory. A consultant psychiatrist advised that LM lacked capacity to consent to sexual relations because she could not weigh up foreseeable risks to her and potential children from becoming pregnant. Nor was LM able to weigh up the risks of acquiring a sexually transmitted infection, and she was unlikely to initiate any action to avoid acquiring such infections. At first instance however, Peter Jackson J concluded that LM had capacity to consent to sexual relations, noting that ‘She is somebody who has been [fully] sexually active in the past; she has had children; she understands the rudiments of the sexual act; she has a basic understanding of issues of contraception and the risks of sexually transmitted diseases. The area in which she is weakest is her ability to understand the implications for herself should she become pregnant. Pregnancy for [LM] would be an extremely serious state of affairs; there can be no doubt about that. But her weakness in that respect does not, for me, lead to the conclusion that her capacity is absent; it argues for her to receive continued safeguarding and help, advice and explanation as and when the question of sexual activity might become a reality.’ Peter Jackson J went on to explain that the declarations as to incapacity and best interests regarding care, residence and contact which he was making in respect of LM would be sufficient to provide her with the support and protection she required.
Having waded through the previously decided cases concerning sexual relations, contraception, and the common law test of capacity, Sir Brian Leveson P, giving the judgment of the Court of Appeal, concluded that there was no difficulty in reconciling the authorities. It was clear that the decisions of Munby J (as he then was) in Re MM; Local Authority X v MM & KM  EWHC 2003 (Fam) and X City Council v MB, NB and MAB  EWHC 168 (Fam),  2 FLR 968 had not suggested that the ability to use or weigh information was not part of the test for capacity to consent to sexual relations: what Munby J had recognised was that the extent of the judicial enquiry into P’s ability to use or weigh the relevant information was much less than in other spheres, since capacitous people do not, generally speaking, agonise over such decisions. That was not inconsistent, Sir Brian Leveson P considered, with the House of Lords decision in R v Cooper  UKHL 42.
Further, the comments of Baroness Hale in R v Cooper as to the person-specific nature of a decision to consent to sexual relations were not inconsistent with a generic approach to capacity being taken in the civil sphere. The civil and criminal courts were considering different issues, and it was correct to draw “a distinction between the general capacity to give or withhold consent to sexual relations, which is the necessary forward looking focus of the Court of Protection, and the person-specific, time and place specific, occasion when that capacity is actually deployed and consent is either given or withheld which is the focus of the criminal law” (paragraph 75) It was therefore possible for the Court of Protection to make a ‘general evaluation’ of capacity.
The Court of Appeal expressly relied on policy reasons for adopting that approach, accepting that “it would be totally unworkable for a local authority or the Court of Protection to conduct an assessment every time an individual over whom there was doubt about his or her capacity to consent to sexual relations showed signs of immediate interest in experiencing a sexual encounter with another person. On a pragmatic basis, if for no other reason, capacity to consent to future sexual relations can only be assessed on a general and non-specific basis” (paragraph 77).
Sir Brian Leveson therefore held that it followed that the first instance decision was correct, as LM’s ability to use or weigh information, although limited, was not beneath the low level called for in the context of a ‘visceral’ decision rather than a ‘cerebral’ one.
Comment: For the time being at least, the question of the correct approach to capacity to consent to sexual relations is relatively clear. The test is general in its application, and the relevant information does not include more ‘remote’ factors such as the implications of pregnancy, as opposed to the risk of becoming pregnant. The ability to use or weigh information, while essential, is required at a low level only, given the nature of the decision.
Does the judgment provide the simple, workable guidance sought by the parties? On one hand, it is helpful in its clarification of the content of the test and the manner in which it should be applied. On the other hand, because of the factual matrix of LM’s case, it does not grapple with the more complex cases that tend to trouble statutory authorities involving individuals who are being sexually exploited. The first sentence of the judgment gives readers a clue as to the direction the Court is going to take on this controversial issue: ‘When is it appropriate for society to intervene paternalistically in a decision or decisions that individuals make as to their sexual relations?’ An alternative set of facts might have resulted in the question being framed as ‘When is it appropriate for society to intervene to prevent individuals from being the subject of sexual assault?’ It is interesting that in many of the other reported cases concerning capacity to consent to sexual relations, P is reported as having made allegations of sexual assault, but there is no mention of criminal proceedings having been brought. There may be other policy considerations in favour of a more nuanced approach to capacity in the civil context if it is right that the criminal system is not in fact able to protect people with mental impairments from sexual assault.
The Court of Appeal proceeded on the basis that “if, in any case, there is a declaration of lack of capacity, the relevant local authority must undertake the very closest supervision of that individual to ensure, to such extent as is possible, that the opportunity for sexual relations is removed” (paragraph 1). It is not obvious that this is necessarily correct. Is it axiomatic that a person who lacks capacity to consent to sexual relations but who does not actively seek out sexual partners and lives in an environment where the opportunities for sexual contact are limited must be supervised 24 hours a day to avoid such a low probability risk?
The Court was also troubled by the practical difficulties of evaluating P’s capacity in respect of each potential sexual partner. This concern, though often raised, is rarely analysed. Why is it more onerous to assess capacity in respect of different potential sexual partners than in respect of different people with whom P may have contact – an approach which, it appears to the editors, is required by the City of York decision in cases where P’s incapacity is not of a global nature. Should not more care be taken rather than less when assessing capacity in respect of a decision which can have such significant consequences (STIs, pregnancy and the emotional trauma of sexual assault) compared to, for example, a decision to go to the cinema with someone? And if capacity is not assessed in relation to specific individuals, might P be at risk of a declaration of incapacity which would not apply in a particular situation – imagine the situation in which P is in a longstanding relationship with a sexual partner who has no sexually transmitted infections and is willing to be regularly tested to confirm that position, but where P is unable to understand or retain information about STIs despite support.
Given the obvious attractiveness of a low-threshold approach which limits State intervention in people’s private lives, it seems likely that the policy considerations in favour of positive autonomy (the right to sexual freedom) are likely to trump those of negative autonomy (the right not to be sexually assaulted), in line with this decision. Statutory bodies anxious about the repeated sexual assault or exploitation of mentally impaired adults will have to consider whether the exercise of the court’s inherent jurisdiction, or other civil remedies ought to be sought in these more complex cases.
We might, finally, note that the answer to the dichotomy set out above that the bar would appear to be set higher for a trip to the cinema than a decision to engage in sexual relations might be that the threshold for the former should be lowered – which would represent at least a move in the direction of the UN Convention on the Rights of Persons with Disabilities.