Blog post by Helen Curtis of the Garden Court Chambers Court of Protection Team.
DY, aged 18, had diagnoses of two chromosomal duplicities, a moderate learning disability and fetal alcohol spectrum disorder. DY also had developmental trauma disorder or complex post-traumatic stress disorder. DY’s capacity to decide to engage in sexual relations was in issue.
The expert’s conclusions that DY lacked capacity to conduct the proceedings and to make decisions about care, contact, social media use and her finances were agreed. It was further accepted by the LA and the Official Solicitor that DY had capacity to decide between residence options that could meet her assessed needs. The independent expert’s assessment was that DY lacked capacity to decide to engage in sexual relations given the analysis of her understanding of the distinction between consenting to sexual relations within and outside a relationship. Knowles J met with DY prior to the hearing. DY was in a relationship with a man, AB with whom she spoke every day and her contact with him was supported by staff.
The LA’s view was that when unsettled or distressed DY, ‘may be unable to make a clear and rational decision in relation to sexual relations but when settled or in a familiar situation or surroundings, then DY was able to make a capacitous decision’. The Official Solicitor’s position was that, contrary to Dr Camden Smith’s report, DY had capacity to decide to engage in sexual relations.
The LA sought a prospective declaration that DY lacked the capacity to make decisions as to sexual relations in circumstances when she was unsettled or distressed or alternatively a declaration in identical or similar terms pursuant to the inherent jurisdiction.
Knowles J reminded herself ‘against imposing too high a test of capacity, as to do so would run the risk of discriminating against persons suffering from mental disability and thereby deprive them of autonomy’. The test of capacity in respect of sexual relations in A Local Authority v JB  EWCA Civ 735 was referred to (para 14), the test now being whether the person has capacity ‘to decide to engage in sexual relations’ instead of the previous formulation, capacity to ‘consent’. When assessing a person’s ability to use and weigh information relevant to the decision to engage in sexual relations, Knowles J quoted Baker J (as he then was) in TZ v A Local Authority (No 1)  EWCOP 2322 where he stated at para 55,
"Most people faced with the decision whether or not to have sex do not embark on a process of weighing up complex, abstract or hypothetical information. I accept the submission on behalf of the Official Solicitor that the weighing up of the relevant information should be seen as a relatively straightforward decision balancing the risks of ill-health (and possible pregnancy if the relations are heterosexual) with pleasure, sexual and emotional brought about by intimacy. There is a danger that the imposition of a higher standard for capacity may discriminate against people with a mental impairment."
Dr Camden Smith stated in her report that in respect of DY’s capacity to ‘consent to sex’, DY lacked capacity ‘due to an inability to understand some of the relevant information namely that consent is required both within and outside of a relationship. She has a good knowledge of consent within a relationship but didn’t appear to understand consent outside of a relationship. I also have concerns that she would not be able to use or weigh any information about capacity if she weren’t in a relationship....The only reason DY could think of for not having sex with other people was because she is currently in a relationship. She appears to place more weight on being in a relationship than in her autonomy and ability to say no to others’.
Knowles J heard oral evidence from Dr Camden Smith and from DY’s social worker. In her oral evidence, Dr Camden Smith conceded that she may have set the bar too high: ‘It was difficult to say what [DY’s] capacity would be if her relationship with her present boyfriend were to end. When unsettled, DY may be unable to make a clear and rational decision..... The main confusion arose because DY could not conceive of not being in a relationship with her present boyfriend and the nature of DY's cognitive deficit meant that it was much harder for her to analyse things in abstract terms’ (para 20).
DY’s social worker confirmed that DY understood the mechanics of the sexual act, understood that she could become pregnant, understood about sexually transmitted disease and had an understanding that she could say no if she did not want to have sex – namely all the information relevant to the decision – and within DY’s relationship with AB, she had capacity to consent to sexual relations. ‘The difficulty was DY’s understanding of sexual relationships was so caught up in the relationship with her boyfriend that it was very difficult to tease apart how she might respond to someone else in other circumstances’ (para 21).
Knowles J considered the prospective declaration sought by the local authority would require an assessment of whether DY was sufficiently distressed or unsettled so as to have lost capacity to engage in sexual relations and give ‘wide discretion to individual professionals without any check to ensure DY’s autonomy was respected’ (para 26).
Knowles J noted at para 27 that,
‘Whilst I acknowledge that prospective declarations of incapacity are permissible pursuant to s.15 MCA 2005, these are exceptions to the general approach. They may be appropriate in cases where there is clear evidence of the circumstances in which a person would or may lack capacity in the future and where there were practical reasons why a declaration or declarations should be made in advance. Neither of those conditions applied in this case. Here the distress and unsettledness were not well defined and even if DY did experience such emotions it could not be assumed that this would impair her decision-making ability without an analysis of the particular facts pertaining at the time’
Although it was suggested by the local authority that DY’s capacity may fluctuate, Dr Camden Smith was clear that if DY were provided with support, she did not think her capacity on this issue would fluctuate.
The court held at para 33:
‘Standing back and considering the issue in the round, I am satisfied that, at the time she was assessed, DY understood and was able to weigh all relevant information and had the capacity to decide to engage in sexual relations on a general non-specific basis. There was no dispute that she had the capacity to make decisions about sexual relations with her boyfriend, the only person with whom there was any current prospect of having sexual relations. The evidence of both Dr Camden Smith and YZ, DY's social worker, as to how she might respond in other circumstances was uncertain and speculative’.
Knowles J saw no justification in invoking the inherent jurisdiction and was satisfied that the final declaration should be that DY has capacity to decide to engage in sexual relations.
- The case is of interest for its rejection of an analysis that this was fluctuating capacity to decide to engage in sexual relations warranting a prospective declaration of incapacity, and in highlighting the need not to set the bar too high in the test for capacity to decide to engage in sexual relations.
- The local authority was directed to prepare a care plan to reduce risk and support DY to make informed decisions. This would appear to focus on contact, in which DY lacked capacity.
- The Supreme Court is due to hear the Official Solicitor’s appeal against the Court of Appeal’s decision in A Local Authority v JB  EWCA Civ 735 on 15 July 2021. It remains to be seen whether the current formulation of the test for capacity to decide to engage in sexual relations will be upheld.
The judgment is available here.