Citation:  EWCOP 53
This is the latest judgment in long-running proceedings concerning the best interests of a Bangladeshi woman with a moderate learning disability. In 2010 and 2011, orders were made in the family court providing for the permanent adoption of TB’s four children. In those proceedings, TB’s husband had been found to have physically assaulted TB.
In 2012, the Court of Protection made interim declarations that it was in TB’s best interests to live in supported accommodation rather than with her husband and his (polygamous) second wife, and their child. TB’s placement did not prove successful – much as in the property she lived in with her husband, she spent hours lying on the sofa watching TV. Supervised contact took place between TB and her husband, which the court found was generally worthwhile for TB, although her husband had attempted to induce her to say she wanted to return to live with him.
The court held that it was not in TB’s best interests to return to live with her husband, and directed the local authority to use its best endeavours to find an alternative placement for her, in line with the recommendations of the court-appointed expert, or, if that was not possible, to replace TB’s care team with people able to promote TB’s social life and integration into the community.
The court also made a final declaration that notwithstanding TB’s previous pregnancies, she lacked capacity to consent to sex. In doing so, Mostyn J reviewed the authorities addressing what the relevant information is that must be understood, retained and used to make a decision whether to consent to sexual relations. Mostyn J concluded that understanding the risk of pregnancy was not a separate issue, as previous authorities had stated, but that it formed part of understanding “that there are health risks involved.” He did not appear to accept an argument that since TB had an IUD fitted (the same having previously been authorised by the court), there was no need for her to understand the risk of pregnancy. Mostyn J further rejected the analysis of the Official Solicitor that the ability to say yes or no to sex is not a concept that must be understood as part of the relevant information, preferring the approach of Hedley J in Re H  EWHC 49 (COP), who had held that a relevant question was “does the person whose capacity is in question understand that they do have a choice and that they can refuse?”
Thus, Mostyn J held, the relevant information was:
In adopting this approach, Mostyn J both made clear that he had been persuaded that the more nuanced approach adopted by Hedley in Re H was to be preferred to the approach that he himself had adopted in Re AB, and that this more nuanced approach aligned the civil and criminal law (see in this regard R v Azanzi).
Mostyn J also took the opportunity to comment on his decision in Rochdale Metropolitan Borough Council v KW  EWCOP 45, saying that “[t]he state is obliged to secure the human dignity of the disabled by recognising that ‘their situation is significantly different from that of the able-bodied.’ Thus measures should be taken “to ameliorate and compensate for [those] disabilities,” and that characterising those measures as state detention was “unreal.
There are three interesting features of this case.