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Peter Edwards

Solicitor and Director

Monday, February 10th, 2014

When should local authorities stop people having sex

Peter Edwards, Solicitor and Director

When should local authorities stop people having sex?

Peter Edwards Director, Peter Edwards Law

IM v LM and Others [2014] EWCA Civ 37 (Court of Appeal)

Or, as the Court more delicately put it:

‘When is it appropriate for society to intervene paternalistically in a decision or decisions that individuals make as to their sexual relations?’

Peter Edwards Law brought this case to the Court of Appeal on behalf of a worried mum who wanted to protect her daughter.

This was the first time the Court of Appeal has considered how much capacity a person needs to have in order to give consent to intercourse?

In the Court of Protection, 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.’

In asserting that the test was objective not subjective the Court of Appeal said 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).

But is that not what any decision maker under the Mental Capacity Act has to do in deciding other aspects of a persons’ life? Capacity is, after all, time and decision specific. The big difference of course is that you cannot make a ‘best interest’ decision to allow a person lacking capacity to have sex.

But this does throw up some strange anomalies. A couple who have been together for many years, one loses capacity to make decisions about sex, it then becomes unlawful for them to have sex? Or, as same sex couples cannot produce babies by intercourse, does this mean that the test of capacity for homosexual sex is lower that heterosexual sex? Difficult issues.

But what about the duty on local authorities? The Sir Brian Leveson set out in the first paragraph of the judgement:

“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”.

Does this mean that we will see greater use of deprivation of liberty safeguards when care plans have to be more coercive and restricting? Will this lead to an increase of applications to the Court of Protection to authorise deprivation of liberty for those living in supported living or their own homes?

Could it even lead to actions in negligence against local authorities who are aware of a vulnerable person who lacks capacity and risks having sex but they do not act robustly enough? These sound like expensive care plans.

I understand that leave is being sought to take this matter to the Supreme Court. However, for the time being at least, this is the law.