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Capacity and sexual relations

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When looking at the question of capacity to consent to sexual relations, the Courts have historically held that the threshold is low, but a recent judgment of the Court of Appeal has expanded the test for capacity in relation to sexual relations, and has held that the relevant question is whether the person has the mental capacity to engage in sexual relations, rather than to consent to sexual relations.

Presumption of capacity

The question of capacity is issue and time specific. A person must be assumed to have capacity to make any decision unless it is established that he lacks capacity [Section 1 (2) of the Mental Capacity Act 2005].

Simply because the proposed decision is unwise, does not mean that the individual should be considered to lack capacity [Section 1 (5) of the Act].

An individual is deemed to lack capacity if they are unable to understand the information which is relevant to a particular decision, to retain that information, to use or weigh up that information as part of the process of making the decision or to communicate their decision by whatever means [Section 3 (1) of the Act].

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 [Section 3 (4) of the Act].

The relevant information for a decision is different for each question posed and so, for example, the relevant information in respect of capacity to decide who to have contact with is different from the information relevant to the issue of where to live.

In addition to The Mental Capacity Act 2005, practitioners are required to have regard to the Code of Practice (‘the Code’) when assessing capacity and making decisions on behalf of a person who lacks capacity. The Code is available on line at www.publicguardian.gov.uk

The Code refers to a two-stage capacity test comprising:

  1. Stage 1 (the “diagnostic test”): Does the person have an impairment of, or a disturbance in the functioning of, their mind or brain?
  1. Stage 2 (the “functional test”): Does the impairment or disturbance mean that the person is unable to make a specific decision when they need to?

The Code also emphasizes in respect of the stage 2 test that people must be given all practical and appropriate support to enable them to make a decision for themselves and that the stage 2 test is only satisfied if all such appropriate support has failed.

This could include the use of communication aids or support materials.

If the individual has capacity to make decisions about sexual relations, the rehabilitation team and the family, if appropriate, can educate and provide support and advice.

However, they cannot stop the person from making decisions that they are legally entitled to make.

This is despite the individual making what may seem unwise decisions, some of which could have severe consequences including, for example, a police investigation.

Those responsible or involved in the injured person’s care should consider education and encouragement without taking over the decision for the injured person.

The test

The law in this area has long been controversial and evolving.  A number of different judges have considered the issue and have often given contradictory judgments.

Emerging from this case law, however, was a consistent picture which held that the relevant question was whether the person had the mental capacity to consent to sexual relations, and that the relevant information which a person had to be able to understand, retain and weigh in order to make this decision was relatively simple.

As a result of this, the threshold for having capacity to consent to sexual relations has been relatively low.  However, a recent Court of Appeal judgment handed down in June 2020 has added a further element to the relevant information to be considered, and has re-framed the question from one of having capacity to consent to sexual relations to one of whether a person has capacity to decide to engage in sexual relations.

In the case of A local authority v JB [2020] EWCA Civ 735, the Court of Appeal decided that the relevant information in relation to deciding to engage in sexual relations is the following:

  1. The sexual nature and character of the act of sexual intercourse, including the mechanics of the act;
  2. The fact that the other person must have capacity to consent to the sexual activity and must in fact consent before and throughout the sexual activity;
  3. The fact that P can say yes or no to having sexual relations and is able to decide whether to give or withhold consent;
  4. That a reasonably foreseeable consequence of sexual intercourse between a  man and woman is that the woman will become pregnant;
  5. That there are health risks involved, particularly the acquisition of sexually transmitted and transmittable infections, and that the risk of sexually transmitted infections can be reduced by the taking or precautions such as the use of a condom.

The second and third elements of this test, those relating to consent, had not previously formed a consistent part of the test for capacity in this field, and as a result of this judgment, the threshold for capacity in this field can now be considered to be somewhat higher than before.

Lack of capacity

As indicated before, the question of capacity is time and issue specific. This means that it is possible for a person to lack capacity to make decisions in respect of one issue, but to have capacity to make decisions in relation to another, closely related issue.

This can lead to considerable practical difficulties for those supporting such an individual.

For example, a person might be found to have the capacity to engage in sexual relations (the threshold for having such capacity still being relatively low) but to lack the capacity to make decisions about who they should have contact.

This can lead to a situation in which, in practice, best interests decisions are being made around contact which restrict the person’s ability to exercise their autonomy in respect of engaging in sexual relations.

The courts have held that such cases should be considered extremely carefully and should be referred to the High Court to ensure that the correct balance is struck.

Case study

Given that the threshold for capacity to engage in sexual relations remains relatively low, in the vast majority of cases, persons with anything but the most severe brain injuries will be considered to have capacity to consent to sexual relations.

In one particular case which one of the authors was involved in, prior to the judgment in the case of JB, the injured person started inappropriately communicating with others on social media and arranging to meet them with a view to embarking upon sexual activity.

He did not appear to have much awareness about the importance of considering the age of consent. There were significant concerns that there would be police involvement.

He had, some would say naively, believed that everyone was who they said they were online.

The rehabilitation team tried hard to ensure that the injured person was educated about the risks and consequences of sexual activity and about the importance of not believing everyone is who they say they are.

When a relationship was formed, they tried to ensure that he took that at a steady and appropriate speed.

They agreed some guidelines. However, there were challenges keeping to them, particularly when he developed a relationship with an individual who did not perhaps have his best interests in mind.

He was assessed as having capacity to make decisions about who to contact and to enter into sexual relations, albeit the clinicians were of the view, rightly so, that this should be kept under review.

Fortunately, due to the extensive education provided to the injured person, he always (to the best of the rehabilitation team’s knowledge) practised safe sex.

The injured person was protected insofar as possible, and he made an informed decision about whether to engage in sexual relations as he had the capacity to do so.

In addition, he started to appreciate the risks associated with contacting individuals who did not have his best interests in mind.

Conclusion

If there is likely to be a dispute about whether there is a lack of capacity to make decisions about sexual relations, consideration should be given as to whether additional costs will arise which will need to be factored into the personal injury litigation.

The additional costs will be even higher in cases where a person has capacity in respect of sexual relations but lacks capacity in respect of their contact with others.

The additional costs may include additional legal advice and additional deputyship costs if applications to the Court to determine the issue are required.

In addition, there are likely to be additional costs incurred by the case manager and the rehabilitation team to protect the individual.

Kirsty Stuart is a solicitor Irwin Mitchell. David Withers is a partner at the firm.

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