Last week the Court of Appeal handed down a judgment on the rather fraught issue of what constitutes capacity to consent to sexual relations, in the case of IM v (1) LM (2) AB) & Liverpool City Council  EWCA Civ37. It is an area of law which is, as you might imagine, rather difficult. Despite their best endeavours, Judges, lawyers and medical and social care professionals have often imported their own subjective views. This is therefore an important judgment that makes the law in this area clear.
Issue or person specific
A main point of contention has been whether capacity to consent to sex is issue-specific (i.e. do you determine if a person has capacity to consent to sex generally) or person-specific (do you determine if a person has capacity to consent to sex with a particular other person).
Your immediate reaction may be that it should be person specific, because of the nature of the issue at hand. Baroness Hale is often quoted in this regard; in R v Cooper  UKHL 42  1 WLR 1786, a criminal case, Baroness Hale said:
“My Lords, it is difficult to think of an activity which is more person-and situation-specific than sexual relations. One does not consent to sex in general. One consents to this act of sex with this person at this time and in this place.” [paragraph 27].
This obviously makes eminent sense. However, it does not follow that capacity to consent to sex must be assessed in a person-specific way. The issue that Baroness Hale raises is that a person does not consent to sex generally. That does not mean that a person either has or does not have capacity to consent to sex generally. The judgment in LM sets out at paragraphs 76 and 77:
- ….the fact that a person either does or does not consent to sexual activity with a particular person at a fixed point in time, or does or does not have capacity to give such consent, does not mean that it is impossible, or legally impermissible, for a court assessing capacity to make a general evaluation which is not tied down to a particular partner, time and place.
- Going further, we accept the submission made to us to the effect that it would be totally unworkable for a local authority or the Court of Protection to conduct an assessment every time an individual over whom there was doubt about his or her capacity to consent to sexual relations showed signs of immediate interest in experiencing a sexual encounter with another person. On a pragmatic basis, if for no other reason, capacity to consent to future sexual relations can only be assessed on a general and non-specific basis.
It seems clear to us that this approach makes sense both when applying the provisions of the Mental Capacity Act 2005, and in a purely practical sense.
Using and weighing the information
A further issue raised was whether a person has to be able to just understand the relevant information, or to use or weigh that information when making a decision about capacity to consent to sex.
The Court of Appeal found that a person does have to understand but also to use and weigh relevant information before making such a decision; this is clearly set out as the test of capacity for any decision in the Mental Capacity Act 2005. The Court went on to say at paragraphs 81 and 82:
- …the ability to use and weigh information is unlikely to loom large in the evaluation of capacity to consent to sexual relations. It is not an irrelevant consideration; indeed (as we have emphasised) the statute mandates that it be taken into account, but the notional process of using and weighing information attributed to the protected person should not involve a refined analysis of the sort which does not typically inform the decision to consent to sexual relations made by a person of full capacity…It is precisely this point at which Hedley J was driving in A NHS Trust v P when he observed that "the intention of the Act is not to dress an incapacitous person in forensic cotton wool but to allow them as far as possible to make the same mistakes that all other human beings are at liberty to make and not infrequently do".
- We agree. Perhaps yet another way of expressing the same point is to suggest that the information typically, and we stress typically, regarded by persons of full capacity as relevant to the decision whether to consent to sexual relations is relatively limited. The temptation to expand that field of information in an attempt to simulate more widely informed decision-making is likely to lead to what Bodey J rightly identified as both paternalism and a derogation from personal autonomy.
Overall we think this is a good judgment. It is helpful to those practicing in the field (medical and social care professionals) as it makes the law clearer, but most of all it allows those with disabilities affecting their capacity to have greater autonomy in their personal lives.
Maria Nicholas, Director/Solicitor
Posted on Wednesday, 29th January 2014