LM was diagnosed with liver disease, and was later admitted to hospital following excessive alcohol misuse. She underwent surgery, during which she suffered cardiac arrest leading to a hypoxic brain injury, causing significant amnesia with moments of lucid thought. This memory loss caused her confusion and distress, and LM was later placed in a specialist unit for extensive rehabilitation. Whilst generally remaining calm and making good progress, she occasionally displayed frustration and agitation, whilst directing physical and verbal aggression towards staff and other service users.
Proceedings before the Court of Protection were commenced by AB, who was in a relationship with LM. AB had been barred from the hospital that LM was being treated, and thereafter had his contact with LM restricted. The proceedings challenged the legality of the restrictions that were imposed on him.
Dr G (a consultant psychiatrist) later noted that LM wished to re-establish a sexual relationship with AB, which led to the immediate proceedings.
When evaluating whether or not LM had the capacity to consent to sexual relations, Peter Jackson J found that LM did have capacity. He relied upon the fact that she was fully sexually active in the past, she had children, she understood the rudiments of the sexual act, she had a basic understanding of contraception and she was aware of the risks of sexually transmitted diseases. Whilst he appreciated that pregnancy for LM would be ‘an extremely serious state of affairs’, he considered that this should not automatically lead to a finding that capacity was absent, and rather emphasised the importance of providing continued safeguarding and help for LM as the best means of protecting LM. Peter Jackson J also declared that part of the respect owed to people with disabilities included their entitlement to opportunities that may carry some level of risk.
On appeal, the appellant sought to establish the following propositions:
a) Capacity evaluation focused on the ability of an individual to make a particular decision, and the legal principles to be applied were the same whatever the nature of the decision in question.
b) Evaluation of capacity was always ‘person specific’, and therefore required a consideration of the characteristics of the person making the decision.
c) Some decisions (for example, in the context of a person’s relationship with another person) were ‘person specific’; although other decisions not involving that dynamic were ‘act specific’. [this is an outmoded argument, but the Courts have dealt with the need for flexibility by treating the context in which people are persuaded into particular acts, the most telling feature, and the context can involved others’ opinions of the motives or intent of the persuader].
d) Capacity to consent to sexual relations was capable of being a ‘person specific’ decision and inevitably concerned consenting to sexual relations with another individual.
e) The case law on capacity to consent to sexual relations was too complex, and required alteration.
f) On an evaluation of capacity that included a ‘person specific’ element, LM did not possess capacity to consent to sexual relations.
g) The judge had erred in failing to consider any ‘person specific’ element, considered a number of legally irrelevant considerations, adopted an incorrect threshold test and departed from the conclusion of expert witnesses without providing adequate justification for doing so.
The Court of Appeal dismissed the appeal against the decision of Peter Jackson J by affirming that LM had capacity.
The main conflict within the immediate proceedings was between the approach taken in the reported cases at first instance, and the obiter observations of Baroness Hale in R v Cooper. On the one hand, Baroness Hale was concerned that Munby J was advocating an approach to capacity evaluation for consenting to sexual relations that did not involve considering whether the individual was able to use and weigh the relevant information (in contrast to other areas of capacity evaluation). On the other hand, Munby J concluded that the capacity here was ‘issue specific’ and not ‘person specific’ (contrary to Baroness Hale’s understanding).
The Court of Appeal adjudged that whilst the ability to ‘use or weigh’ information should be taken into account, within the context of consenting to sexual relations this factor was ‘unlikely to loom large’. The Court of Appeal maintained that Baroness Hale had misunderstood Munby J to be saying that the factor of being able to ‘use or weigh’ information had no place in determining capacity here. Rather it was held that he was merely drawing a distinction between the extent of judicial investigation required in complex decisions (e.g. consenting to medical treatment), compared with more straightforward decisions (e.g. consenting to marriage). Complex decisions would typically involve drawing upon expert evidence, whereas more straightforward decisions would not be as rigorous in their analysis. Therefore the distinction drawn relates to the extent of the judicial exercise, and not to its content or structure.
For the avoidance of doubt, the Court of Appeal clarified that every single issue of capacity falling under Part 1 of the MCA should be evaluated by applying Section 3(1) in full. This therefore required a court to decide whether a person is able ‘[t]o use or weigh that information as part of the process of making the decision’ when evaluating capacity. However, the extent to which there was a need for a straightforward or more in-depth evaluation, using the four elements within Section 3(1), would vary from case to case. And within cases concerning consent to sexual relations, the Court of Appeal endorsed Bodey J’s reasoning in Re A when arguing that any decision-making process attributed to the protected person should be understood within the context of the actual decision-making process carried out by those persons of a full capacity on a regular basis. As counsel for LM declared, the process here was largely ‘visceral’ rather than ‘cerebral’, and therefore owed more to instinct and emotion than to analysis. Therefore it was unlikely that the ability to use and weigh information would be of great importance when evaluating one’s capacity to consent to sexual relations.
In relation to the conflict surrounding the ‘issue specific’ and ‘person specific’ approaches, the Court of Appeal concluded that the test for capacity to consent to sexual relationships was general and ‘issue specific’, in accordance with the MCA. However it was found that this approach was not at odds with Baroness Hale’s approach because they were both made within different legal contexts. In relation to the ‘issue specific’ approach, the general capacity to give or withhold consent to sexual relations matched the forward-looking focus of the Court of Protection. And the ‘person specific’ approach remained the potential focus of criminal law, where attention to specific past events could illuminate the parties’ intentions and stances on having sex. Within this criminal context, any issue relating to consent was evaluated in retrospect. However, in relation to LM’s circumstances, the fact that a person either does or does not have capacity to consent to sexual relations with a particular person at a given time does not disqualify a court assessing capacity to make a general evaluation which is not tied down to a particular partner, time or place.
Also, it was held to be totally unworkable for a local authority or the Court of Protection to conduct an assessment every time an individual, whose capacity to consent to sexual relations was questioned, demonstrated that they were interested in engaging in sexual activity with another person. Therefore capacity to consent to future sexual relations could only be assessed on a general basis. More support for this ‘issue specific’ approach was taken from the finding that a court lacked any jurisdiction to give consent on another’s behalf to any specific sexual encounter, if they had previously found them to lack capacity to consent to sexual relations.