D Borough Council v AB
Summary: The case, which received considerable publicity, concerned A, who had a moderate learning disability and had developed a homosexual relationship with a fellow service user, K. There was no evidence of an exploitative relationship, but the local authority had in addition been alerted to two incidents in which members of the public had raised concerns about A's behaviour in public. The local authority sought a declaration that A did not have capacity to consent to sexual relations and that he should not have sexual contact with K.
The jointly-instructed expert advised that the following factors needed to be understood for someone to have capacity to consent to sexual relations: For capacity to consent to sex to be present the following factors must be understood: (a) the mechanics of the act, (b) that only adults over the age of 16 should do it (and therefore participants need to be able to distinguish accurately between adults and children), (c) that both (or all) parties to the act need to consent to it, (d) that there are health risks involved, particularly the acquisition of sexually transmitted and sexually transmissible infections, (e) that sex between a man and a woman may result in the woman becoming pregnant, and (f) that sex is part of having relationships with people and may have emotional consequences.
The judge rejected this analysis, and the local authority's submission that the personality and characteristics of the sexual partner were relevant factors. He adopted the approach set out by Munby J in the cases of X City Council v MB, NB and MAB  EWHC 168 (Fam),  2 FLR 968 and Local Authority X v MM and KM  EWHC 2003 (Fam),  1 FLR 443, that consent to sexual relations is act-specific, not person- or situation-specific. He concluded (at paragraph 42) that the only information relevant to giving consent which the person must understand and retain is (a) the mechanics of the act, (b) that there are health risks involved including STIs, and (c), for heterosexual relations only, that sex between a man and a woman may result in pregnancy.
On the facts, the judge found that A lacked capacity because he had a very limited and faulty understanding of sexually transmitted infections, believing that sex could give you spots or measles. Clearly, A understood the mechanics of the act, because he had already engaged in sexual activity.
However, the judge refused to grant a final declaration and said that the local authority must put in place educational measures to assist A to acquire capacity. This went against the recommendation of the expert, who considered that it would not be in A's best interests to undergo such education. A might become confused and anxious and exhibit challenging behaviour which would jeopardise his placement.
Comment (Victoria Butler Cole): The law on capacity to consent to sexual relations is in disarray. This decision conflicts with the recent decision of Wood J in D County Council v LS  EWHC 1544 and it is difficult to see how the two judgments can be reconciled (or how this judgment can be reconciled with that of the House of Lords in R v Cooper  1 WLR 1786).
Permission to appeal was granted to the local authority but it is unlikely that an appeal will be pursued given the current economic climate, and that the local authority agreed with the Official Solicitor that A lacked capacity to consent to sexual relations (albeit that they differed over the test that generated that conclusion). In the view of the authors, A's case would not be well suited to becoming a test case, since there was no concern about exploitation of A, and the reasons for proposing a person-and situation-specific test were far from clear. One of the difficulties with cases on capacity to consent to sexual relations is that the particular circumstances of the individual concern necessarily limit the scope of the court's deliberations - decisions are made in the absence of sufficient information about the circumstances in which the test may need to be applied. Thus, in this case, the lowest degree of knowledge possible was found to be needed to consent to sex. Had, for example, the judge been considering heterosexual relations, he may well have concluded that understanding not just the risk of becoming pregnant but that pregnancy itself may carry risks, was necessary. Had, for example, there been an exploitative relationship, the judge may have been more inclined to prefer a test that does not impose a blanket ban on sexual relations, but only within an exploitative relationship.
If this decision is correct, it is clear that the criminal test for capacity under s.30 of the Sexual Offences Act 2003 and the civil test are not the same; a point which was not acknowledged in A's case. It may also, counter-intuitively, impose more restrictions on people with learning disabilities rather than promote their sexual freedom, since where an exploitative or abusive relationship exists, the inclination may well be to 'fail' the individual on the test for capacity (as there is inevitably a degree of flexibility about how much knowledge of, for example, STIs, is required). This could then result in a global declaration preventing sexual contact for the individual in other, non-exploitative contexts. Local authorities and those working in this area can only hope that the issue does receive consideration by the Court of Appeal in the near future.
Comment (Vikram Sachdeva): The correct test for capacity to consent to sexual relations is a highly controversial topic. The answer depends on an examination of the philosophical basis underlying incapacity law – specifically whether it is justified (on a utilitarian basis) to prevent significant sections of the population from indulging in sexual activity in order to prevent abuse in a small number of cases, or whether fewer should be barred from sexual activity, but with a risk of abuse in a small number of cases which would have otherwise been avoided.
This issue underlies another conceptual question: whether capacity to consent to sexual relations should be situation – (and therefore person -) specific, within Re MB  2 FLR 426, or whether it is not (as with marriage: see Sheffield County Council v E  Fam 326). Or is the capacity to consent to marriage also situation-specific?
Further, is it essential (rather than merely desirable) for the test for capacity to consent to be identical in the criminal and the civil law? This again will depend on the purpose served by incapacity in the criminal and civil law, which may not be the same.
Although a number of first instance judges have valiantly tried to square the circle (Munby J (as he then was) in X City Council v MB, NB and MAB  EWHC 168 (Fam) and in Local Authority X v MM and KM  EWHC 2003 (Fam); Roderic Wood J in D County Council v LS  EWHC 1544 (Fam); Mostyn J in D Borough Council v AB  EWHC 101 (COP), and the House of Lords has expressed a view in passing (R v Cooper  UKHL 42  1 LR 1786)), ultimately the answer is a question of policy for the Supreme Court. Its judgment will certainly make interesting reading.