Re CLF (Capacity: Sexual Relations and Contraception)
Summary
In this case, Poole J had to consider the capacity of woman to make decisions about: (1) the conduct of the proceedings; (2) residence; (3) care; (4) contact with others; (5) use of the internet and social media; (6) engagement in sexual relations; and (7) the use of contraception. He accepted the unchallenged expert evidence that CLF lacked capacity to make decisions about conducting the proceedings, care, contact and the use of internet and social media. He therefore focused on residence, engagement in sexual relations, and the use of contraception.
On residence, Poole J was troubled by the attempt to pull part care and residence on the facts of the case:
36. Dr Rippon's evidence as set out at paragraphs [10] and [11] of this judgment is that CLF is able to make a decision as between two options for her residence but only if adequate care was arranged at each one. CLF does not have capacity to make decisions about her care but, as I understand Dr Rippon's evidence, she can describe her care – she understands what care is and what kind of care she is receiving. Hence, she could not make a decision about residence if it involved an assessment of the appropriate level of care in each place available for her. But if the provision of care was decided for her, she would be able to understand, retain, and weigh or use the other information relevant to a decision about residence – see LBX at [43] (above). Mr Karim KC for the Local Authority submitted that the court should not accept the distinction that Dr Rippon had adopted but should apply LBX, avoid the trap identified in Re B, and find that CLF lacks capacity to make decisions about residence. Mr O'Brien KC, for the Official Solicitor for CLF, submitted that the danger of considering decision-making in silos, as identified in Re B, was that it may result in a situation that would be "practically impossible" for the Local Authority to implement – Re B at [63] (above). Here, it would not be practically impossible for the Local Authority to make decisions about the care provision CLF requires, make arrangements for that to be put in place at residence A and residence B, and then allow CLF to make a choice about which residence to live in. Where possible, her autonomy should be respected and protected.
37. There is a risk, in my judgement, in dissecting areas of decision-making such that it becomes practically impossible for those caring for P to implement the assessments of capacity made. It would make it difficult for a Local Authority to implement a care plan if it had been determined that P had capacity to make decisions on, for instance, eight aspects of her care, but not on five others. Furthermore, the process of assessing capacity might become unwieldy. However, in this instance, Dr Rippon's evidence is that CLF would have capacity to make decisions about her residence but for the element of choosing the right level of care within those places. I can see that if care decisions could be removed from decision-making about residence, then a declaration that CLF had capacity to make decisions about residence provided that the care arrangements for each available residential option were made for her, would not necessarily be incompatible with a declaration that she lacks capacity to make decisions about her care. However, my concern is that the position is more complex than Dr Rippon has assumed. As well as compatibility with the declaration of incapacity to make decisions about care, I also have to consider compatibility with my finding that CLF lacks capacity to make decisions about contact with others and to use the internet and social media. When considering the practical implications of the declaration regarding residence decision-making sought on CLF 's behalf by the Official Solicitor, I do not see how a declaration of even conditional capacity to make decisions about residence, is compatible with declarations of incapacity that I make. What might seem an attractive solution in theory, could not be possibly to put into practice. Much of the information relevant to a decision about residence, even with a care package determined for her, will be relevant to care, contact with others and the use of the internet and social media. A choice about whether to live in house A or house B will involve information about access to activities and the community which entails questions about risk; about the neighbours and any risks of conflict with them, or harm from them; about the layout of the house or flat, the ability to monitor CLF within the accommodation, including her use of social media and the internet. Care is not simply a "given": the choice of residence will itself determine the level and kind of care required. Similarly, decisions about contact with others will be contingent upon where CLF lives. Whilst wishing to protect CLF's autonomy as much as is possible, I cannot see a way in which to divorce her decision-making about residence from other decision-making in relation to which it is agreed, and I have found, CLF lacks capacity.
Poole J therefore found that CLF did not have capacity to make the decision about residence, although, importantly, noted that “it does not follow that CLF may not take any part in decision-making. Clearly, her views about residence should be sought and she should be supported to be able to express her opinions and take into account relevant information” (paragraph 38).
As to sexual relations, he noted the clear and consistent evidence of the expert that CLF had such capacity. He rejected the submission that her belief that the withdrawal method was a wholly effective method of avoiding pregnancy, such that she engaged in unprotected sex, meant that she lacked capacity to decide to engage in sexual relations. That might go to the question of contraception, Poole J considered, but not to sex:
41. CLF clearly understands that sex may result in pregnancy. She understands and can weigh or use the other relevant information identified by Baker LJ and the Supreme Court in JB (above). On the basis of the evidence before me, including Dr Rippon's opinion evidence, I find that CLF has capacity to make decisions about engagement in sexual relations. As explained below, I find that she presently lacks capacity to make decisions about the use of contraception. I do not consider that these two findings are incompatible. The bar should not be set too high for capacity in relation to sex. There are practical limits on what should be envisaged by the individual concerned. There is a danger in imposing requirements on their decision-making that are higher than those attained by many capacitous people making the same decisions. A lack of understanding about a particular method of contraception or birth control, should not deprive a person of being found to have capacity to engage in sexual relations. It is unhelpful to break down decision-making in relation to a particular area, here sexual relations, into sub-divisions such as the decision to engage in sex whilst relying on the man withdrawing before ejaculation to avoid pregnancy. Firstly, that route will often lead to a result that is "practical impossible" to manage: how can anyone manage a situation in which a person has capacity to engage in sex using a condom but not have capacity to engage in sex using the withdrawal method? Secondly, many otherwise capacitous individuals might be found to lack capacity to make very specific decisions. Thirdly, and related to the second objection, the more one breaks down an area of decision-making into sub-divisions, the more complex the relevant information within that area becomes, and the more difficult it will be for people with a learning disability or other cognitive impairments, to avoid conclusions that they lack capacity. The MCA 2005 directs those assessing capacity to support people to make decisions for themselves. Framing decisions with ever more precision risks undermining that purpose of the Act.
Poole J did not consider that his conclusion that CLF had capacity to make decisions about engaging in sexual relations with the finding that CLF lacks capacity to make decisions about contact with others, expressly adopting the reasoning in the earlier decisions in Re PN (Capacity: Sexual Relations and Disclosure) [2023] EWCOP 44, we now have Re EE (Capacity: Contraception and Conception) [2024] EWCOP 4.
Finally, as to contraception, Poole J noted that Dr Rippon had been clear that CLF did not understand, and could not weigh or use, information about different forms of contraception, their effects, side-effects, and effectiveness. This is primarily because she understood that contraception involving medication or a device (not condoms) will render her permanently infertile. Her inability to do so was because of her Learning Disability and Autism Spectrum Disorder. In the circumstances, he concluded, as was accepted by all the parties, that CLF lacked capacity to make decisions about the use of contraception.
He noted, though, that:
46. CLF also told Dr Rippon that she believed that the withdrawal method was wholly reliable to prevent her from becoming pregnant. I recognise the sensitivity of referring to the withdrawal method as a form of contraception. It might better be described as a form of birth control. I would not accept any argument that faith in the withdrawal method as a form of birth control was in itself proof of a lack of capacity to make decisions about the use of contraception (or birth control). It is practised by many millions of people. However, I accept that in CLF's case, she does not understand, and is unable to weigh or use, information about birth control, including the withdrawal method, because of her Learning Disability and Autism Spectrum Disorder. Even if I am wrong, she clearly lacks capacity in that area for the reasons referred to in the previous paragraph of this judgment.
Importantly, Poole J did not make a final declaration in respect of CLF’s capacity but only an interim one, because there was evidence that a focused educational programme could lead to CLF gaining capacity in this area.
Comment
Whilst appreciating that care and residence are distinct questions, this case adds to others (including the characteristically clear decision of Sir Mark Hedley in Re CMW [2021] EWCOP 50) suggesting that, in the context of someone with needs for care, attempting to take the two together represents salami-slicing leading to problems.
In relation to the approach to contraception, by contrast (and with thanks to Ian Brownhill for making this point) it might be thought that the decision could have been broken down further. Putting aside the withdrawal method, and noting Poole J’s observation on whether to characterise it as a method of contraception, this was a situation where it might be thought necessary to consider separately CLF’s capacity to make decisions about (a) contraception where (in effect) reliance was being placed on the partner to use a condom; and (b) contraception reliant upon her either taking medication or using a device such as an IUD. Given that Poole J only made an interim declaration in relation to CLF’s capacity, it may be that this is a matter which still falls to be considered by him in due course.
