Social Welfare Update: Court of Appeal decision on capacity to use social media, consent to sexual relations and residence warns against “silos” when analysing capacity

Thursday 31 October 2019

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B, a woman aged 31, had learning difficulties and had considerable social care needs. She was a frequent user of social media, using sex chats and she came into contact online with Mr C, a man in his seventies who had been convicted of multiple sex offences, with whom she stayed overnight and expressed the wish to live with him.

Cobb J at first instance made interim orders that B 

  • had capacity to make decisions as to her residence 
  • lacked capacity to make decisions as to her care 
  • lacked capacity to make decisions about contact with others
  • lacked capacity currently to make decisions about use of social media (but should be offered help to enable her to acquire it) 
  • lacked capacity to consent to sexual relations (making an interim declaration only and directing a programme of work to offer her practicable help to gain capacity). 

The Official Solicitor appealed to the Court of Appeal against Cobb J’s decision on B's capacity to use social media and capacity to consent to sexual relations. 

The local authority cross-appealed against the decision that B had capacity to make decisions about her residence 

The judgment 

The Court of Appeal dismissed the Official Solicitor's appeal and upheld the local authority's cross-appeal. 

The Court of Appeal did not make firm findings on the social media aspect of the appeal as there was no appeal against the actual order that Cobb J had made on this area of decision-making there was, it held, therefore technically no appeal. The court made observations however, which endorse the list of relevant information set out by Cobb J as "guidance to be adapted to the facts of the particular case" (para 44). 

On consent to sexual relations, the court noted that this case did not raise an issue as to whether the test should be "general and issue specific" (and did not raise the same point therefore as raised in Tower Hamlets v NB, under consideration by Hayden J). The appeal on consent to sexual relations concerned what was the relevant information that has to be retained, understood, used and weighed for the purpose of s 3 MCA 2005. The main areas of dispute were the factors of health risks in particular risk of transmission of sexually transmitted disease and that the risk can be reduced by taking precautions such as use of a condom. The Court of Appeal ruled that these are factors that are essential to capacity to consent to sexual intercourse. It is important to note that the CA emphasised the nature of the assessment (a useful statement of the nature of the test, as sometimes one sees assessments that appear to quiz the person being assessed):

"The assessment is not a general knowledge test. Rather it is an assessment of whether the person being assessed has the ability to understand those matters when explained to him or her and to retain the information for a period of time and to use or weigh it in deciding whether or not to consent to sexual relations."  (para 57)

The Court of Appeal went on to highlight that under s 3(3) MCA the fact that a person can retain the information relevant to the decision for a short period only does not prevent him from being regarded as able to make a decision, and that a person is not to be treated as unable to make a decision unless all practicable steps to help him to do so have been taken without success.
B was to have such practicable help, hence only an interim declaration was being made (para 61).

The Court of Appeal held that the ability of a person to understand the concept and necessity of his/her consent to sex (that the person knows that she/he has a choice and can refuse) is fundamental to having capacity and more than just an item or relevant information within section 3 of the Act. 

On capacity to make decisions about residence, the court endorsed the list of relevant factors stated in the often-cited decision of Theis J, LBX v K, L, M [2013] EWHC 3230 (Fam) at 43 but with a proviso. It held that there is no problem in principle with the list, provided that it is treated and applied as no more than guidance to be expanded or contracted or otherwise adapted to the facts of the particular case (para 62). 

The Court of Appeal held that Cobb J had gone wrong in his assessment of capacity in this area, in that the judge had "analysed B's capacity in respect of different decision as self-contained silos without regard to the overlap between them": it was contradictory to find that B did not have capacity as to decisions as to care and contact or to consent to sexual relations yet to find that she had capacity to decide to live with Mr C, with the aim of having his baby. See paras 64 - 68.

The Court of Appeal couched these issues in terms of an application of s 3(4) MCA 2005: the information relevant to the decision includes information about the reasonably foreseeable consequences of deciding one way or another and para 4.16 of the Code of Practice that relevant information includes the likely effects of deciding one way or another or making no decision at all.  

Comment 

The Court of Appeal had fully in mind the restrictive consequences of a finding of lack of capacity to consent to sexual relations (no best interests decision being possible), and whilst not being willing to reduce the list of factors that Cobb J held that  P has to retain, use and weigh, the court was anxious to highlight that capacity assessments are to be conducted in a way that does not result in the bar for capacity being placed too high. 

As regards the warning against “silos” when analysing capacity, it must be correct that in many cases (if not almost all) there will be an overlap in the information relevant to decisions about contact with others and residence, and care and residence. Therefore on applying Theis J's useful list of relevant information, the list/its application must be tailored to the individual case to ensure that the s 3(4) MCA 2005 information is included in the relevant information in the given case, and a relevant overlap between domains taken into account (to avoid "silos").

Finally, the facts provide a useful reminder the use of injunctions and committal in the Court of Protection. The court had injuncted Mr C from having contact with B. On finding that he breached that order, it imposed a suspended sentence of 28 days imprisonment (para 18). 

The full judgment is available here: B (by her litigation friend, the Official Solicitor) v A Local Authority [2019] EWCA Civ 913, 11 June 2019 

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