Mental capacity and sex. A review of case law.
Laura Edwards, Solicitor and MHT accredited representative
By Laura Edwards (nee Stevenson), Solicitor – Peter Edwards Law
Mental capacity in relation to sexual relations is an issue that will affect, not only the life of the person whose mental capacity is in question, but also any potential partner and their families.
Decisions about the lawfulness of sexual relations comes within Article 8 of the European Convention on Human Rights. Article 8 protects our right to have our private and family life respected. It is therefore essential that those who are affected by this issue, including those who are called upon to make decisions, know what the test is for capacity.
When assessing a person’s capacity, the case law over the years has distinguished the following in relation to the elements to ‘test’ the person’s capacity. So, what is considered when assessing capacity in this area?
The test, as it currently stands, is whether the person (P) has an understanding and awareness of;
1. the sexual nature and character of the act of sexual intercourse, e.g. ‘the mechanics of the act’;
2. the reasonably foreseeable consequences of sexual intercourse, namely pregnancy;
3. the opportunity to say no; i.e. to choose whether or not to engage in it and the capacity to decide whether to give or withhold consent to sexual intercourse;
4. that there are health risks involved, particularly the acquisition of sexually transmitted and transmissible infections;
5. that the risks of sexually transmitted infection can be reduced by the taking of precautions such as the use of a condom
Most of the above test was first formed in the judgment of Munby J in X City Council v MB, NB and MAB . The full test as set out above was confirmed in the recent case of A Local Authority v JB –  EWCOP 39 (see below).
It is not possible to make a ‘best interests’ decision for P in relation to sexual relations if they are found to lack capacity to consent to the same. That is because it is specifically excluded by Section 27 – Family relationships, (1)(b) “Nothing in this Act permits a decision on…… consenting to have sexual relations”.
In the 2009 case of R v Cooper  UKHL 42, Baroness Hale commented that 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”. The Court of Appeal held that the test for capacity to consent to sexual relations under the Mental Capacity Act 2005 (MCA 2005) was general and issue specific, rather than person specific as in a criminal context.
The capacity to consent to sexual relations was further considered in a case that Peter Edwards Law was involved; IM v LM and Others  EWCA Civ 37. The Court said that it would be impossible, on a practical level to assess P every time they showed a possible interest in having a sexual encounter with another person and so “capacity to consent to future sexual relations can only be assessed on a general and non-specific basis” (paragraph 77). The test, therefore was whether they had capacity to consent to sexual relations generally rather than having sexual relations with a particular person on any particular occasion.
There have been developments in the case law in this area this year.
The most recent cases of note are;
· A Local Authority v JB –  EWCOP 39
· LB Tower Hamlets v NB & AU –  EWCOP 27
· B v A Local Authority –  EWCA Civ 913
Please click on the above links if you wish to read the decisions in full. Below is a summary of what the Court has said in relation to capacity for sexual relations in these cases;
B v A Local Authority –  EWCA Civ 913
The Court of Appeal confirmed that the awareness of the ability to consent or refuse sexual relations is fundamental to having capacity in relation to sexual relations.
London Borough of Tower Hamlets v NB and AU –  EWCOP 27
This case has confirmed once again that the test for capacity to consent to sexual relations is general and issue specific rather than person or event specific and must consider the individual’s characteristics and circumstances. In this case, Hayden J was considering a case of a married female who had been married since 1992, had one adult daughter and was past child-bearing age. Her capacity in relation to sexual relations had been doubted.
Hayden J also made the following comments in relation to cases whereby sexual relations for a person could not result in either pregnancy or sexually transmitted disease;
54. That there is no need to evaluate an understanding of pregnancy when assessing consent to sexual relations in same sex relationships or with women who are infertile or postmenopausal strikes me as redundant of any contrary argument. Nor, with respect to what has been advanced in this case, can it ever be right to assess capacity on a wholly artificial premise which can have no bearing at all on P’s individual decision taking. It is inconsistent with the philosophy of the MCA 2005. Further, it is entirely irreconcilable with the Act’s defining principle in Sec. 1 (2) … ‘a person must be assumed to have capacity unless it is established that he lacks capacity.’
A Local Authority v JB –  EWCOP 39
This case concerned a male who had a diagnosis of autism and impaired cognition. P lived in a supported living placement. As part of his care plan, there were restrictions in place in relation to access to the community, contact with third parties, and access to social media and the internet. The issue in hand was whether he had capacity to consent to sexual relations. The concern was about P understanding that the other person must also have capacity to have sexual relations and must consent to the act too. The concern was the perceived risk as to the ‘safety’ of those with whom P may attempt to have sexual relations with and whether he understood that attempting sexual relations with someone who does not consent is a criminal offence.
It held that the test set out in section 3(1) of the MCA 2005 should not be expanded to include the ability to understand that the other party must be able to consent to and does consent to sexual relations.
In reaching this conclusion the court, at paragraph 38 of the judgment set out the following principles of law (i.e the test for assessing capacity to sexual relations) :-
(i) a person is presumed to have capacity unless it is established that he or she lacks capacity (section 1(2));
(ii) he or she is not to be treated as unable to make a decision unless all practicable steps to help him or her to do so have been taken without success (section 1(3));
(iii) he or she is not to be treated as lacking capacity merely because his or her decision is unwise (section 1(4));
(iv) a lack of capacity in relation to a particular subject matter or domain arises in circumstances where, at the material time, a person is unable to make a decision for himself or herself because of an impairment of, or a disturbance in the functioning of, the mind or brain (section 2(1));
(iv) capacity determinations are specific to particular matters which arise for decision at the time a determination is required and are resolved on the balance of probabilities (section 2(4)). Thus if a local authority or other public body or third party alleges that a person lacks capacity to make a particular decision, it is for that body, entity or person to prove that fact on the basis of the ordinary civil standard;
(v) the ability of a person to make a decision depends upon his or her ability to understand, retain or use or weigh the information relevant to that decision and to communicate that decision (section 3(1)). That information has to be presented to the person in a way that is appropriate to his or her circumstances (section 3(2)) but a person may be capacitous in relation to a particular decision even if he/she can only retain that information for a short period of time (section 3(3));
(vi) the definition or content of ‘relevant information’ for these purposes will depend on the nature of the decision to be made but will include the reasonably foreseeable consequences of making that decision or failing to make that decision (section 3(4));
(vii) if a person is found to lack capacity, a decision taken on his or her behalf by the court or someone else must be in the person’s best interests taking account of all his or her relevant circumstances including certain mandatory requirements listed in section 4 of the MCA 2005.
So, for now, the position is as set out above, and the test for assessing capacity in this area is clear, however there is no doubt that there will be further case law in this area. The words of Hayden J in London Borough of Tower Hamlets v NB and AU at paragraph 66, in my view, perfectly surmises why this is such an important issue;
“[…]The personality and circumstances of the incapacitous are as rich, varied and complex as those of anybody else. All this requires to be taken in to account when evaluating capacity in every sphere of decision taking. As practitioners and indeed as judges we must be vigilant to ensure that the applicable tests do not become a tyranny of sameness, in circumstances where they are capable of being applied in a manner that may properly be tailored to the individual’s situation. To do otherwise would, […] lose sight of the key principles of the MCA 2005.”