Court of Protection: capacity to consent to sexual relations

Current case law relating to an individual’s capacity to consent to sexual relations or to marry is confusing. A finding that someone lacks capacity will have a huge impact on that person’s life and was considered in part in my analysis of the case of DE, found here.

Many cases have considered whether capacity to consent to sexual relations is person, or act specific.

The issue has again been considered by the Court of Appeal in the case of IM v LM & Ors [2014] EWCA Civ 37, where the Judges considered the correct approach to assessing capacity of ‘protected persons’ (an individual who may or may not lack capacity on a particular matter, for which judicial determination is required). The protected party (“P”) was a woman of 37 who had a history of drug and alcohol abuse. When in hospital receiving treatment for difficulties associated with excessive alcohol use, P suffered cardiac arrest leading to hypoxic brain injury, causing significant amnesia with significant moments of lucidity. Restrictions were placed on P’s contact with her partner (with whom she had lived for a number of years), who subsequently issued proceedings in the Court of Protection, seeking declarations that contact with him was in P’s best interests.

The Court of Protection determined that P lacked capacity to make decisions concerning residence, care and contact with others and gave guidance on best interests for those particular decisions. P was determined as having the mental capacity to make decisions about whether or not to have sexual relations on the basis that she understood, in broad terms, the nature of the act. The Court of Protection judge felt that there was insufficient evidence to rebut the presumption of capacity and that in any event, the measures that were in place concerning residence and contact were currently sufficient to promote her well-being.

P’s mother appealed the decision on the basis that, among other reasons, the Judge failed to consider any person-specific element when assessing P’s capacity to have sexual relations and if that approach is applied, P did not possess capacity to consent to sexual relations.

It was found that the Court of Protection Judge had adopted essentially the correct approach and had reached the correct conclusion. The lengthy judgment, however, shows a current divergence of opinion between judges; some (mainly in the Criminal courts) are of the view that it is a person specific act, while others see that it is a ‘question directed to the nature of the activity rather than to the identity of the sexual partner.’

The Court of Appeal Judges reconciled the divergent approaches “as being correct in drawing a distinction between the general capacity to give or withhold consent to sexual relations, which is the necessary forward looking focus of the Court of Protection, and the person specific, time and place specific, occasion when that capacity is actually deployed and consent is either given or withheld, which is the focus of the criminal law.”

The Court of Appeal had been asked to provide a pragmatic and consistent solution to the issue of assessing capacity to consent to sexual relations. They agreed that to insist upon an assessment with a person-specific element would be ‘totally unworkable’ and stated that ‘capacity to consent to future sexual relations can only be assessed on a general and non-specific basis.’

The judges were clear in the view that a person of capacity does not typically consider a huge breadth of information before making a decision whether to consent to sexual relations. To put that burden on an individual who may lack capacity due to mental disorder or illness would be paternalistic and a ‘derogation from personal autonomy.’ I would also suggest that doing so would be stepping even further away from the principle of the UN Convention on the Rights of People With Disabilities (whilst not part of our domestic law) that people with disabilities should not be treated any differently to those without.

It is a minefield for a lawyer, so for someone who just wants a simple answer and some workable direction as to how to apply the judicial interpretation to an individual they are supporting, it can be impossible to navigate.

To consider these issues in more detail, Clarke Willmott is running a seminar entitled; ‘Adults, Incapacity and their Personal Lives.’

In the Bristol session barrister John McKendrick will give a presentation and I will host an interactive session where we consider the practicalities of acting as litigation friend for an individual (see more on the role of a litigation friend here and here). We are delighted to be joined by District Judge Ralton, who sits as a nominated Judge of the Court of Protection in Swindon.

In the Southampton session John and I will be joined by District Judge Sparrow who sits in Southampton and surrounding areas as a nominated Judge of the Court of Protection.  District Judge Sparrow will be sharing his experiences of cases where he has been involved with very personal matters.

Please contact me for further information and to request an invitation.

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