Re M (an Adult) (Capacity: Consent to Sexual Relations)
| Jurisdiction | England & Wales |
| Judge | Sir Brian Leveson P: |
| Judgment Date | 23 January 2014 |
| Neutral Citation | [2014] EWCA Civ 37 |
| Docket Number | Case No: B6/2013/0318 |
| Court | Court of Appeal (Civil Division) |
| Date | 23 January 2014 |
[2014] EWCA Civ 37
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE COURT OF PROTECTION
Mr Justice Peter Jackson
COP 11932292
Royal Courts of Justice
Strand, London, WC2A 2LL
THE PRESIDENT OF THE QUEEN'S BENCH DIVISION
( Sir Brian Leveson )
Lord Justice Tomlinson
and
Lord Justice Mcfarlane
Case No: B6/2013/0318
Richard Gordon Q.C. and Matthew Stockwell (instructed by Peter Edwards Law, Liverpool) for the Appellant
Jenni Richards Q.C. and Jonathan Butler (instructed by Hogans Solicitors, Rainhill, Liverpool)for LM
Adam Fullwood (instructed by Quality Solicitors, Jackson & Canter, Liverpool) for AB
James Gatenby (instructed by the City Solicitor, Liverpool) for Liverpool City Council
When is it appropriate for society to intervene paternalistically in a decision or decisions that individuals make as to their sexual relations? At different levels, the question can be approached medically, sociologically and philosophically: the answers will not necessarily be the same. Seeking to identify the balance that our society, expressed through Parliament, has mandated, the Mental Capacity Act 2005 brings the issue to the court for it to undertake the exercise of judgment, based on the criteria that the legislation has set out. The significance of this decision should not be underestimated: 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.
When granting leave to appeal in this case, McFarlane LJ identified what he described as an apparent conflict of judicial opinion at first instance on the issue of capacity to consent to sexual relations. In such a difficult area, it is particularly important that the legal framework should be clear and readily understandable by all those called upon either to make decisions or to advise. Each individual decision, however, is ultimately dependant upon a factual background which will never be identical to any other. In the circumstances, to provide context, we shall outline the facts of this appeal, before analysing the legal position both in general and then specifically in the context of this case. This is a judgment of the court to which each member has made a substantial contribution.
Facts
LM was born in October 1972. Her life, at least as an adult, has been chaotic with an extensive history of drug and alcohol abuse; she has convictions for offences related to prostitution. All three of her children (by a former abusive partner) have, at some time, been raised by her mother IM, the oldest child is now an adult, the second is presently living with one of LM's siblings and the youngest, now aged 11, is still with IM.
Having been diagnosed with liver disease, in July 2010, LM was admitted to hospital, vomiting blood from the upper gastrointestinal tract as a result of excessive alcohol misuse. On or about 16 July, she underwent surgery during the course of which she suffered a cardiac arrest leading to an hypoxic brain injury, causing significant amnesia with moments of lucid thought. Her memory loss causes her confusion and distress. In September 2010, she was placed in a specialist unit for the purposes of extensive rehabilitation and in the period since, on occasions, she has been calm. She has, however, also displayed frustration and agitation, accompanied by physical and verbal aggression to staff and other service users. By January 2013 she was reported as having made good progress.
Proceedings before the Court of Protection were commenced by AB, with whom LM had had a relationship (including a sexual relationship) such that they had been living together for a number of years. He had also had a troubled background (including what is described as having a significant criminal record) and, for what was described as inappropriate behaviour, had been barred from the hospital in which LM was being treated; thereafter, his contact with LM had been restricted. The proceedings were a challenge to the legality of these restrictions. In particular, contact with LM and, indeed, knowledge of her whereabouts had been withheld. Although the source of various allegations against AB was IM, neither she nor the local authority listed a schedule of allegations or made a statement in support of them, notwithstanding requests so to do by the Official Solicitor, acting for LM.
The principal issues during these proceedings were, therefore, the placement of LM and contact arrangements between her and AB. In the event, by the hearing in 22 January 2013 (which is the subject of appeal), unchallenged declarations were made that LM lacked capacity to make decisions concerning residence, care and contact with others. It was also declared, without challenge, that it was in LM's best interests:
"3) To reside at [identified residential accommodation] and to receive the care currently being provided by the Brain Injury Rehabilitation Trust and funded by LPCT.
4) For LM to have contact with AB, to include letters, under the supervision of Dr P [the responsible clinical neuropsychologist] whilst she resides at [the residential accommodation] with a trial of more relaxed contact expected to take place.
5) Both before and following the anticipated move to supported living, LM's contact with AB shall be subject to LCC's [ie the local authority's] safeguarding and best interests assessments. For the avoidance of doubt there is an expectation that a reduction in the present restrictions on contact should at least be trialled.
6) To move to independent supported living in or around 12 months time and to receive the care and support identified in the Support Plan completed by LCC (or such other relevant authority as may be the case).
7) For LM' s immediate family and AB to be consulted as part of the planning process in relation to her future accommodation, care and contact arrangements.
8) If appropriate, for LCC or its nominated officer to enter into and sign any tenancy agreement on LM's behalf for the purposes of facilitating or maintaining her independent supported living."
For the purposes of resolving issues relating to residence, contact, medical treatment, property and affairs and litigation, Dr G, a consultant psychiatrist had been asked by the court to prepare a report. She noted (in her report of 8 October 2012) that LM wished to re-establish a sexual relationship with AB and expressed the belief that "unsupervised contact with AB may trigger sexualised behaviour". It was only then that the capacity to consent to sexual relations arose.
Dr P (LM's clinical neuropsychologist) addressed the issue in a statement dated 16 November 2012. Having concluded that LM understands the nature and character of the act of sexual intercourse (that knowledge not having been lost following brain injury) her need for gynaecological treatment due to poor health before the cardiac arrest had itself given rise to questions about her ability reasonably to foresee the consequences of various activities; he left the issue to the court, making the point that if she is deemed vulnerable, the question was not the act (of sexual intercourse) but "the relationship of the two parties engaging in the act". His concern was LM's ability not to "feel coerced or pressured or manipulated into sexual activity and of the trust placed with AB not to abuse his position".
In a supplementary report dated 1 December 2012, Dr G specifically addressed the issue of sexual relations as "an issue specific test; not person (partner) situational specific test except where external cues are an integral part of her assessment". She went on:
"With prompting, LM is able to describe the mechanics of the sexual act and when asked directly, is able to say that heterosexual intercourse can give rise to pregnancy and is aware of the risks of sexually transmitted infections. This is in keeping with a relative preservation of pre-morbid memories and is indicative of the fact that she can understand and retain the relevant information. However, she was not able to weigh up the risks to herself of a further pregnancy or the potential risks to any children. Specifically, she could identify no difficulties that she may have if she became pregnant saying that she already had 3 children and that they were 'OK'. … She could see no areas of concern that others may have about her looking after children. LM was therefore unable to understand the foreseeable, possibly inevitable consequences, of pregnancy.
She would not engage in a discussion about sexually transmitted disease which, I believe, based on her behaviour when faced with other questions she could not answer, was a way of not having to consider questions that she found difficult. Based on her need for others to monitor her general physical health, although LM can identify that a sexually transmitted infection may arise from a sexual relationship, I do not believe that she would be able to take appropriate action relating to any gynaecological symptoms, partly due to apathy and lack of initiation arising from her brain injury and partly to a lack of general awareness of her own state of health.
As LM is unable to weigh up the pertinent information in a clinical interview, she is even less likely to be able to weigh up the information in a non-clinical setting. This latter opinion is based on the likelihood that she will...
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