Council ordered to provide sex education to man with learning disability

The Court of Protection has ordered a local authority to provide sex education to a man with a moderate learning disability to see whether he can gain the mental capacity to consent to sexual relations.

In D Borough Council v AB [2011] EWHC 101, the primary issue was the legal test to be applied in determining whether the individual in question – “Alan” (not his real name) – had the mental capacity to consent to sexual relations.

The secondary issue was, if it was decided that Alan did not have capacity, what declarations the judge should make.

Alan was 41, with an IQ assessed at 48 and “seriously challenged in all aspects of his mental functionality”. The judge pointed out that the percentage of the population that is IQ 50 or fewer is under 1/2%, but added that this was a sizeable number.

Before proceedings commenced in July 2009, Alan shared a home with a man called “Kieron”. The accommodation was provided by the local authority, and Alan received a care package involving constant supervision within placement and in the community.

The judge said Alan was sociable and presented as an able man. He also had a vigorous sex drive, which had led to relations with persons of both genders.

Alan was reported to have developed a sexual relationship with Kieron, but separate incidents involving a young boy and two girls aged nine and ten saw the local authority get involved.

The council made an application for a declaration that Alan did not have mental capacity to consent to sexual relations and an order authorising a restriction of contact between Alan and Kieron, and Alan and another person, with a view to preventing further sexual relations taking place.

A district judge made interim declarations to this effect on 1 July 2009. Alan’s relationship with Kieron has since ended. However, Alan asked a representative of the Official Solicitor to allow him to have sex again, saying it would make him feel happy.

Examining case law and the Mental Capacity Act, Mr Justice Mostyn ruled that the capacity to consent to sex remains act-specific and requires an understanding and awareness of:

• The mechanics of the act
• That there are health risks involved, particularly the acquisition of sexually transmitted and sexually transmissible infections
• That sex between a man and a woman may result in the woman being pregnant.

The judge also made a further observation: “I am sure that the first and second of these criteria is needed to be able to consent to penetrative anal sex and oral sex. I doubt if the third is. And I doubt if either the second or third is needed to be able to consent to sexual activity such as mutual masturbation. This leads to potentially serious management problems where different kinds of sexual activities are practised at different times.”

In this case, Mr Justice Mostyn declared that at the present time Alan did not have the capacity to consent to and engage in sexual relations.

On the secondary issue, an expert witness – Dr Hall – gave evidence that a programme of sex education, as proposed by the Official Solicitor, would be a bad idea, with Alan possibly left confused and with raised levels of anxiety. This could, he added, lead to deterioration in Alan’s presently very good and compliant behaviour.

But the judge said: “Dr Hall’s evidence is wholly valid when viewed through the prism of best interests. Yet I believe that an issue such as this must surely be subject to a threshold akin to that of significant harm, as is applicable to children when the state seeks to intervene under Part IV of the Children Act 1989. This must be implicit in s1(3) MCA. I am not satisfied that sufficient practical steps have yet been taken to see if Alan can have sex, with the result that the present régime of deprivation of liberty can be lifted.”

Mr  Justice Mostyn therefore ordered that his declarations were of an interim nature, the local authority should provide Alan with sex education in the hope that he gains capacity through that programme, and the matter should be returned to court for review after a period of nine months. This review would be to see what progress sex education was making, with a view to making final declarations.

The judge granted the local authority permission to appeal.