Capacity, Consent and Sexual Relations

The question of the appropriate test to apply when considering whether someone has capacity to engage in sexual acts is one the courts have been wrestling with. Sally Gore looks at the lessons to be learned from the most recent judgments.

The Courts are understandably reluctant to intervene in what is perhaps the most personal decision that an individual can make – the decision to engage in sexual relations. The principle of autonomy has weighed heavily in all such cases that have come before the Court for this issue to be determined. A number of reported cases show the Courts grappling with the question of the appropriate test to apply in considering whether an individual has capacity to participate in sexual acts.

In A Local Authority v H [2012] EWHC 49 (COP), Hedley J provides the most detailed analysis yet of the factors relevant to the test for capacity in s.3(1), Mental Capacity Act 2005 when deciding whether a person has the capacity to choose whether or not to engage in a sexual relationship.

Hedley J was of course not the first to consider the legal test to be applied in such a case. Munby J (as he then was), considered the issue in two cases that were decided under the inherent jurisdiction. In X City Council v MB, NB and MAB (by his litigation friend the Official Solicitor) [2006] EWHC 168 (Fam), [2006] 2 FLR 968, he was considering the capacity of a young man with autism to marry.

Having concluded that capacity to marry must, generally speaking, include the capacity to consent to sexual relations, he went on to decide that the question of capacity to consent to sexual acts must, in this context, be the same as it is in the criminal law: “Does the person have sufficient knowledge and understanding of the nature and character – the sexual nature and character – of the act of sexual intercourse, and of the reasonably foreseeable consequences of sexual intercourse, to have the capacity to choose whether or not to engage in it, the capacity to decide whether to give or withhold consent to sexual intercourse (and, where relevant, to communicate their choice to their spouse)?” (para. 84).

In neither this nor any subsequent case was there any discussion of what was meant by the ‘sexual nature and character’ of the act or whether this brought an element of circularity into the test for capacity to engage in sexual relations.

Munby J applied the same test in Local Authority X v MM (by her litigation friend, the Official Solicitor) and KM [2007] EWHC 2003 (Fam). MM suffered from paranoid schizophrenia and had a moderate learning disability and poor cognitive functioning. She was in a long-term relationship with KM who had abused her in the past. The local authority sought wide-ranging declarations which included that MM lacked capacity to decide with whom she could have contact, this being supported by expert evidence.

The local authority was also seeking orders that MM reside in supported accommodation provided by the local authority, that contact between MM and KM be supervised and limited to once per month and various other orders designed to tightly restrict the contact between MM and KM.

On the basis of the evidence, it was accepted by all parties that MM had the capacity to consent to sexual relations. The Official Solicitor raised the concern that, clearly MM would not be able to have sex with KM, her chosen partner, in a public place or during supervised contact. This led, in turn, to a breach of MM’s rights under Article 8.

Munby J therefore considered whether the capacity to consent to sexual relations included any consideration of the proposed sexual partner: “The question is issue specific, both in the general sense and, as I have already pointed out, in the sense that capacity has to be assessed in relation to the particular kind of sexual activity in question. But capacity to consent to sexual relations is, in my judgment, a question directed to the nature of the activity rather than to the identity of the sexual partner.

“A woman either has capacity, for example, to consent to ‘normal’ penetrative vaginal intercourse, or she does not. It is difficult to see how it can sensibly be said that she has capacity to consent to a particular sexual act with Y whilst at the same time lacking capacity to consent to precisely the same sexual act with Z. So capacity to consent to sexual intercourse depends upon a person having sufficient knowledge and understanding of the nature and character – the sexual nature and character – of the act of sexual intercourse, and of the reasonably foreseeable consequences of sexual intercourse, to have the capacity to choose whether or not to engage in it” (paras 86-87).

This did not resolve the dilemma for the Court. The argument on behalf of MM was that, as she had capacity to consent to sexual relations, her Article 8 rights would be breached if the Local Authority did not make arrangements for MM and KM to have private time together. However, the evidence of the expert witness was that MM did not have the capacity to decide with whom she should spend her time and that contact with KM was not in her best interests due to his behaviour towards her in the past and his more recent attempts to undermine her placement.

Munby J found “no necessary dissonance between the lack of capacity to consent to contact and capacity to consent to sexual relations” (para. 94). Capacity is issue-specific and the level of understanding and relevant considerations were different in relation to both.

It is at least arguable that the Local Authority had a valid point. If a person has the capacity to decide whether or not to have sex, should that equate to the capacity to decide to have sex with whoever they wish? Capacity is ‘issue specific’, but in this case the clash was between two ‘issues’, with MM having capacity in relation to one (sexual relations) but not the other (who she could spend time with). Perhaps it would not, therefore, have been inherently illogical to say that MM could have sex, but not with KM. Unless a person has capacity both to consent to sexual relations and to determine with whom they have contact, their exercise of their capacity to consent to sexual relations must be limited by decisions taken by others about who they have contact with. The suggestion in this case that preventing MM and KM from having sex would breach their rights under Article 8 perhaps conflates the issue of capacity to consent to sexual relations with the exercise of that capacity.

This analysis is not necessarily contrary to the eventual approach of the Court, however, which was to hold that the capacity to decide on sexual relations was a material factor in the Court’s assessment of best interests in terms of contact (para. 96). Ultimately in this case the argument was perhaps academic as the judge found that “[t]he risks which attach to unsupervised contact between MM and KM are, in my judgment, manageable and acceptable” (para. 156).

An alternative approach to the problem in MM was later suggested in some obiter remarks of Baroness Hale in a criminal case: R v C [2009] UKHL 42. The Court of Appeal had relied on the dicta of Munby J in the two cases discussed above and had consequently held that the capacity to consent to sexual acts was ‘issue-specific’ not ‘situation-specific’. Baroness Hale was ‘far from persuaded’ that this was correct: “[I]t is difficult to think of an activity which is more person and situation specific than sexual relations. One does not consent to sex in general. One consents to this act of sex with this person at this time and in this place” (para. 27).

The difficulty with this approach, as Mostyn J identified in D Borough Council v AB [2011] EWHC 101 (COP), [2011] 2 FLR 72 is that it prevents an analogy being drawn between capacity to consent to sexual activity and capacity to marry. It is difficult to formulate an argument that capacity to marry could be spouse-specific. It also, arguably, conflates capacity with the exercise of capacity.

In D County Council v LS [2010] EWHC 1544 (Fam), Rodric Wood J attempted to reconcile the two positions by suggesting that Baroness Hale’s approach in R v C accommodated the need to understand, use and weigh up information relevant to a decision as required by s.3(1) MCA 2005. What was needed was for a distinction to be drawn between matters that go directly to capacity and matters that are only relevant to ‘best interests’. The identity of the sexual partner is relevant to capacity if it “impedes or undermines or has the effect of impeding or undermining the mental functioning of a person when that person makes their decision so as to render them incapacitous”.

This approach offers a potential solution to the problem arising in R v C, where there had been an alleged criminal assault, and the problem in X v MM can be resolved without altering the test for capacity.

In one of the first of these cases to be decided in the Court of Protection, Mostyn J was able to consider the different perspectives on this question. In D Borough Council v AB (above) he concluded that neither the MCA 2005 nor the Code of Practice altered the test identified in the earlier decisions. The capacity to consent to sexual acts remained “act-specific and requires a full understanding and awareness of the mechanisms of the act; that there are health risks involved, particularly the acquisition of sexually transmitted and sexually transmissible infections” and “that sex between a man and a woman may result in the woman becoming pregnant” (para. 42).

In A Local Authority v H, Hedley J adhered to the view that capacity to consent to sexual relations must be independent of the proposed sexual partner. He considered in some detail the issue of capacity to consent to sexual relations in the context of the test for capacity in s.3(1) Mental Capacity Act.

Section 3(1)(a) refers to understanding the information relevant to the decision. Relevant information includes, firstly, that a person must understand the basic mechanics of intercourse and that having sex may lead to pregnancy. An (relatively low-level) understanding of sexual health was also required.

A more difficult question was whether capacity needed to somehow reflect or encompass the moral and emotional aspects of sexual relationships. The learned judge concluded: “In relation to the moral aspect, I do not think it can be done. Of itself that does not alarm me for two reasons: first, I think the standard for capacity would be very modest not really going beyond an awareness of 'right' and 'wrong' behaviour as factors in making a choice; and secondly, the truly amoral human is a rarity and other issues would then come into play. Accordingly, although in my judgment it is an important component in sexual relations it can have no specific role in a test of capacity” (para. 25).

In relation to the ‘emotional’ aspect of sexual relations, however, he concludes that: “The act of intercourse is often understood as having an element of self-giving qualitatively different from any other human contact. Nevertheless, the challenge remains: can it be articulated into a workable test? ……. In my judgment one can do no more than this: does the person whose capacity is in question understand that they do have a choice and that they can refuse? That seems to me an important aspect of capacity and is as far as it is really possible to go over and above an understanding of the physical component” (para. 25).

The test set out by Hedley J is the most detailed and comprehensive approach to this question to date, yet it is questionable how different it in fact is from the earlier test applied by Munby J.

Conclusion

It is clear from the cases considered here that there are difficulties incorporating a partner-specific element to the test. These include the risk of conflating capacity with the exercise of capacity or with issues that relate to best interests, the practical difficulties that would arise for local authorities if they had to consider an individual’s capacity to start a sexual relationship with every prospective partner, and the difficulty that such a test would cause when drawing an analogy with the capacity to marry. In the most recent case, Hedley J had the opportunity of incorporating a partner-specific element by focusing on the emotional consequences of sexual acts. No doubt reluctant to raise the threshold and give rise to increased state interference in the exercise of this choice, he ultimately chose to keep the threshold relatively low.

In any case, the difficulty that arose in MM can be answered in a different way, namely by attaching equal weight to the capacity to engage in sexual behaviour and the capacity to choose with whom to spend time. If the capacity to engage in sexual relations were not taken to imply a right to engage in sexual relations with the partner of choice, even if the protected person does not have the capacity to choose with whom they spend their time, this difficulty might be avoided in the future.

Sally Gore is a barrister at 14 Gray's Inn Square. She is the author of The Children Act 1989: Local authority support for Children and Families, which is published by Jordan Publishing. She also writes a blog on adult care issues: www.silentwitnesses.wordpress.com.