D Borough Council v B

JurisdictionEngland & Wales
CourtCourt of Protection
Judgment Date2011
Neutral Citation[2011] EWHC 101 (COP)

Vulnerable adult – Capacity – Test – Capacity to consent to sexual relations – Local authority seeking declaration that man with learning disability lacked capacity to consent to sexual relations and order authorising restriction of contact between him and two named persons – Court of Protection considering legal test to be applied in determining whether person having mental capacity to consent to sex – Mental Capacity Act 2005, ss 2, 3.

In proceedings brought by a local authority seeking (i) a declaration that A, a man with a ‘moderate’ learning disability, lacked capacity to consent to sexual relations and (ii) an order authorising a restriction of contact between A and two named persons, the Court of Protection considered the legal test to be applied in determining whether a person had the mental capacity to consent to sex. The common law test was that the capacity was ‘act-specific’. The local authority contended that the entry into force of the Mental Capacity Act 2005 in 2007 and authority of the House of Lords in 2009 had modified the act-specific test to a ‘partner-specific’ test. Under s 2a of the 2005 Act, a person lacked capacity in relation to a matter if at the material time he was unable to make a decision for himself in relation to the matter because of an impairment of, or a disturbance in the functioning of, the mind or brain. Section 3b provided that a person was unable to make a decision for himself if he was, inter alia, unable to understand the information relevant to the decision, which included information about the reasonably foreseeable consequences of deciding one way or another or failing to make the decision. The authority argued that the general test of incapacity in ss 2, 3 introduced a partner-specific dimension as, in deciding whether someone could understand the reasonably foreseeable consequences of having sex with someone else, regard had to be given to the characteristics and personality of the other person.

Held – The mental capacity to consent to sex was act-specific and required an understanding and awareness: (i) of the mechanics of the act; (ii) that there were health risks involved, particularly the acquisition of sexually transmitted and sexually transmissible infections; and (iii) that sex between a man and a woman could result in the woman becoming pregnant. The act-specific test had not been modified by the new general test of incapacity in ss 2, 3 of the 2005 Act. The test of capacity to consent to sexual relations

__________________

a Section 2, so far as material, is set out at [26], below.

b Section 3, so far as material, is set out at [26], below.

___________________

was very closely related to the test of capacity to marry, which was status-specific, not spouse-specific. In the circumstances of the instant case, A did not have capacity to consent to and engage in sexual relations. As a principle of the 2005 Act was that a person was not to be treated as unable to make a decision unless all practicable steps to help him to do so had been taken without success, the declaration of incapacity would be interim; the authority was to provide A with sex education in the hope that he gained that capacity and the matter would after nine months be returned to court for review and final declarations (see [15]–[20], [22], [29], [33], [35]–[37], [42], [46], [49]–[52], below).

X City Council v MB[2007] 3 FCR 371 applied.

Dicta of Baroness Hale of Richmond in R v Cooper [2009] 4 All ER 1033 at [24]–[27] considered.

D County Council v LS[2010] EWHC 1544 (Fam) not followed.

Cases referred to in judgment

C (An Adult: Refusal of Treatment), Re[1994] 2 FCR 151, [1994] 1 All ER 819, [1994] 1 WLR 290, [1994] 1 FLR 310.

D County Council v LS[2010] EWHC 1544 (Fam).

Durham v Durham, Hunter v Edney (orse Hunter), Cannon v Smalley (orse Cannon) (1885) 10 PD 80.

Gillick v West Norfolk and Wisbech Area Health Authority [1985] 3 All ER 402, [1986] AC 112, [1985] 3 WLR 830, [1986] 1 FLR 224, HL.

MB (An Adult: Medical Treatment), Re[1997] 2 FCR 541, [1997] 2 FLR 426, CA.

MM (an adult), Re, A Local Authority v MM[2007] EWHC 2003 (Fam), [2008] 3 FCR 788, [2009] 1 FLR 443.

NHS Trust v T (adult patient: refusal of medical treatment)[2004] EWHC 1279 (Fam), [2004] 3 FCR 297, [2005] 1 All ER 387.

Park, In the Estate of, Park v Park [1953] 2 All ER 1411, [1954] P 112, [1953] 3 WLR 1012, CA.

R v Cooper[2009] UKHL 42, [2009] 4 All ER 1033, [2009] 1 WLR 1786.

Sheffield City Council v E[2004] EWHC 2808 (Fam), [2005] Fam 326, [2005] 2 WLR 953.

X City Council v MB[2006] EWHC 168 (Fam), [2007] 3 FCR 371, [2006] 2 FLR 968.

Application

On 10 June 2009 a local authority applied to the court seeking a declaration that ‘Alan’ lacked capacity to consent to sexual relations and an order authorising restriction of contact between Alan and two other named persons. On 1 July 2009 District Judge Mainwaring Taylor made interim declarations and orders. Alan was represented by the Official Solicitor. The facts are set out in the judgment.

Joseph O’Brien (instructed by Local Authority Solicitor) for the local authority.

Vikram Sachdeva (instructed by Irwin Mitchell, on behalf of the Official Solicitor) for Alan.

28 January 2011. The following judgment was delivered.

MOSTYN J.

[1] I shall call the person the subject of these proceedings ‘Alan’. The primary issue in this case is this: what is the legal test to be applied in determining whether Alan has the mental capacity to consent to sexual relations? Counsel are divided on what that test should be. The secondary issue is, if I determine that Alan does not presently have the requisite capacity (whatever it is), whether I should make final declarations to that effect, as contended for by the local authority; or, as contended for by the Official Solicitor, interim declarations coupled with an order that the local authority do provide Alan with sex education in the hope that he thereby gains that capacity. On that footing the matter would be returned to court after a period for a review in order to see what progress the education is making, with a view to making final declarations at that point.

[2] Alan has been represented by the Official Solicitor, instructing Mr Vikram Sachdeva. The local authority has been represented by Mr Joseph O’Brien. Both are counsel of high experience in this field. I heard oral evidence from a distinguished psychiatrist Dr Ian Hall. His evidence was clear and forceful. Both counsel made compelling, economical and clear submissions. The issue is highly complex—legally, intellectually and morally. The excellence of the representation and the quality of the evidence has not made my task any easier.

[3] The story is easily told. Alan is 41. He has a ‘moderate’ learning disability. His IQ is assessed at 48. In terms of classification an IQ in the range 50–70 is a ‘mild’ learning disability. 35–50 is ‘moderate’. 20–35 is ‘severe’. Under 20 is ‘profound’. The percentage of the population that is IQ 50 or fewer is under ½%. That said, it is a sizeable number.

[4] Alan is seriously challenged in all aspects of his mental functionality.

[5] Prior to the commencement of the proceedings in July 2009 Alan had shared a home with a man whom I shall call ‘Kieron’ in accommodation provided by the local authority. Alan received a care package that included constant supervision within placement and in the community. Alan was sociable and presented as an able man. He had, and has, a vigorous sex drive. This has led to sexual relations with persons of both genders, although it is not suggested that Alan has ever had heterosexual coitus.

[6] At some point Alan was reported to have developed a sexual relationship with Kieron which involved penetrative anal sex. In his oral evidence Dr Hall explained that to his understanding Alan’s sexual activity involved kissing, mutual masturbation; oral sex (both active and passive); and anal sex (again, both active and passive).

[7] In addition to the relationship between Alan and Kieron, two events involving Alan in 2008 prompted the local authority to make this application: (i) On 12 September 2008 a young boy in a dentist’s waiting

area observed a man touching his groin, licking his lips and was then asked by the man for his name. The dentist’s diary showed that Alan was due for an appointment at that time. (ii) On 10 September 2008 two girls aged nine and ten stated that when travelling on a bus a man had commented upon their physical appearance, touched their upper legs and then attempted to look up their skirts. The police were notified. On 4 October 2008 these two girls were travelling on the bus once again, as was Alan. The girls notified the bus driver who also notified the police. Alan was then taken to the police station and questioned. However, the police decided that no further action should be taken against him.

[8] On 10 June 2009 these proceedings were commenced. They sought a declaration that Alan lacked capacity to consent to sexual relations and an order authorising a restriction of contact between Alan and Kieron (and between Alan and another person) so as to prevent further sexual relations taking place. On 1 July 2009 District Judge Mainwaring Taylor made interim declarations and orders to this effect. Since then Alan has been subjected to close supervision to prevent any further sexual activity on his part, other than private masturbation, which he is allowed to perform in the bathroom or in his bedroom.

[9] Alan now has his own accommodation, where he is closely supervised. His relationship with Kieron has ended. The evidence of the local authority is that he has thrived in his new placement and has not expressed any wish to resume sexual activity. On the other hand, he has asked a representative of the Official Solicitor to ask me, the judge, to allow him to have sex again. When asked how he would feel if the judge would allow him to do ‘these things’ once again, he said ‘it would make me feel happy’...

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