Keywords: Capacity

KA was 29 and had a mild/moderate learning disability with a global IQ of approximately 70. KA was Bangladeshi and lived with his parents. The issue of capacity had been raised by the local authority, who were concerned that his family might consider arranging a marriage for him as a means of securing his future care when they became too old. KA’s parents and the local authority had co-operated in providing some specific education to KA around issues of sex and marriage.

Parker J was asked to consider KA’s capacity to make decisions regarding: a) Personal care and welfare b) Sexual relations c) Marriage. It was accepted by all parties that KA lacked capacity to litigate. The court considered the report of an expert witness and other evidence about KA’s capacity, including evidence provided by his family.

Parker J found the evidence given by KA’s family unreliable and concluded that his ability to function outside the home was less than presented by them. Nevertheless she concluded that KA had some valuable life skills, including basic literacy and relatively good verbal presentation, the ability to understand simple documents, care for his cat, and help out in a relative’s local restaurant.

A S.49 report had been prepared by Dr. Alim, a consultant psychologist and behaviour analyst with 13 years experience of carrying out capacity assessments. She had seen KA on 5 occasions over 3 months and interviewed family members. She had concluded that KA lacked capacity to have sexual relations and to marry. Dr. Alim was carefully cross examined during the hearing. Parker J found her assessment competent and thorough and she had been able to establish broadly the extent of KA’s understanding. In general she found him very concrete in his thinking. He had a broad understanding of the physical acts involved in sex, of issues of consent and that pregnancy was a result of sex. He misunderstood some aspects of the process of pregnancy, but nevertheless understood that it was a foreseeable consequence of sex. He knew sex could result in illness and understood the need for protection. However he struggled to retain knowledge of methods of protection. Overall, Dr Alim was clear that KA had a very rudimentary understanding of and was able to weigh up that the consequences of sex are or may be pregnancy and ill-health, though he struggled to understand that the ill-health may be serious.

Dr. Alim was similarly able to provide evidence that KA broadly understood the nature and consequences of marriage including changes to social relationships and a rudimentary understanding of the financial and legal consequences. She found that he lacked a clear understanding of the immigration issues which a potential wife from Bangladesh might face and had limited understanding of the financial side of divorce. She also took the view that KA would find it a deprivation to be unable to have sex or to marry. Parker J commented that, whilst not determinative of capacity, this did support an inference that KA understood the nature and character of both sex and marriage.

The most finely balanced issues in this case were whether KA was able to understand and retain the information relevant to decisions about sex and marriage. Parker J considered carefully whether Dr. Alim had set the bar too high in concluding that KA lacked capacity, saying: “The tests for capacity in respect of sexual relations and marriage are not high or complex. The degree of understanding of the ‘relevant information’ is not sophisticated and has been described as ‘rudimentary’, although Macur J’s word ‘salient’ may be more apt. I must not set the test too high. The recent leading case is IM v LM at para 82 states and reiterates that the court should be careful not to add to any further relevant information to the requirement for understanding as this is likely to involve unnecessary paternalism and a derogation from personal autonomy “.

Whilst recognising that the information relevant to a decision includes information about the reasonably foreseeable consequences of deciding one way or another or failing to make the decision, this does not amount to a requirement to be able to assess ‘risk’. “It is particularly important to decouple welfare from capacity under the heading of health and pregnancy. The statutory test is of foreseeable consequences, as in the pre-existing law. Again on the authorities understanding need only be at a rudimentary level” (58-59)

Importantly, therefore, she concluded that it was not necessary for KA to understand condom use in order to have capacity to have sexual relations. In her view, the issue of condom use went to welfare and not capacity. KA did have a rudimentary understanding that illness and pregnancy were foreseeable consequences of sexual relations and, therefore, a lack of understanding of condom use was not sufficient to rebut the presumption of his capacity.

It was held that there was insufficient evidence to rebut the presumption of KA’s capacity to make decisions about his care, have sex and to marry.

ANALYSIS: This is an interesting illustration of how a perfectly competent medical expert can nevertheless be overruled by a judge in a decision as to capacity. As Baker J commented in CC v KK & STCC [2012], the court must consider all relevant evidence in coming to a decision and not just the expert evidence. Capacity is fundamentally a legal issue rather than a medical one. Whilst skilled medical judgement is essential to establishing clearly what an individual does and does not understand (or any other aspect of the functional test), it is ultimately a legal judgement as to whether evidence of that level of functioning is or is not sufficient to refute the presumption of capacity on the basis of the statutory test.

Consequently, anyone (P, family member, non-medical professional) should feel confident in asking the Court of Protection to make a determination as to issues of capacity without being overly intimidated by the reports of ‘experts’ – no matter how skilled, experienced or senior. Similarly practitioners should take note that an ‘expert’ opinion as to capacity is not an absolute determinant of whether an individual legally has capacity to make their own decisions.

This case also illustrates the importance of distinguishing clearly between CAPACITY and WELFARE/SAFEGUARDING. The Mental Capacity Act sets out a presumption that over-16s have the capacity to make decisions for themselves – including unwise decisions that put them at risk. This effectively provides a “right to autonomy” which should not be violated by a risk averse, paternalistic rush to judgement that individuals with intellectual disabilities lack capacity merely because they wish to take a decision that may be contrary to their welfare. The statutory test for the rebuttal of the presumption of capacity must be carefully considered on the basis of evidence and a determination by CoP sought where there is dispute or reason to doubt a judgement.

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