The Court of Protection has been making decisions about people’s personal lives since the introduction of the Mental Capacity Act 2005 (the Act) in October 2007. When it comes to health and welfare decisions, the most personal and private decisions that we make are in relation to relationships and importantly, sex and marriage.
If someone lacks capacity (on the legal test) to consent to sexual relations, or to marry, then the Act says that no one can make that decision on their behalf and the normal best interests analysis doesn’t apply. So a finding of incapacity for those decisions will have very limiting consequences for the individual. As discussed in a previous article, when someone lacks capacity to consent to sex, any sexual acts towards them will be a criminal offence and the measures that are put in place to protect them from being the victim of a crime are likely to restrict what an individual can do even further.
Because of the recent and interesting decisions of the Court of Appeal in IM v LM & Ors  EWCA Civ 37 and PC, NC and City of York Council  EWCA Civ 478 and the very nature of the court’s involvement in an individual’s personal life, I ran some training sessions dealing with these issues.
The events were held in Southampton and Bristol and were very well attended by representatives from independent advocacy organisations, charities, disability organisations and local law firms. The level of contribution was incredible.
Our first speaker concentrated on the legal tests that judges say should be applied when assessing an individual’s capacity to consent to sexual relations and marriage. I have written on the topic of sex and marriage in two previous posts and the current tests are referred to in the post about capacity to consent to sex. The bar is pretty low; lower for marriage than sex and all you need to understand to have capacity to consent to sex is the mechanics of the act and the reasonably foreseeable consequences of sex (ie pregnancy and sexually transmitted diseases).
The tests applied are act specific, not person specific. All speakers on this topic suggested (and our delegates appeared to agree) that there really is nothing so personal as the decision to consent to sexual relations with a specific person and when it comes to marriage, don’t we all decide to marry the person, not that we are going to get married? The IM v LM case is likely to go for a decision in the Supreme Court where Baroness Hale sits as a judge. Given her opinion that ‘it is difficult to think of an activity which is more person- and situation-specific than sexual relations’ perhaps the test may become person, rather than act specific.
Should the test become person specific, the concern may be that, when professionals are faced with an individual who wants to engage in sexual relations and it is not considered to be in their best interests, would they have to carry out assessments of each and every individual they come into contact with? To avoid treating disabled individuals as any different to those without an intellectual disability, the answer should probably be yes. We await the decision of the Supreme Court to see whether the ‘pragmatic’ basis for assessing capacity on a general and non specific basis (paragraph 77 of IM v LM) will be overturned in favour of a regime that may be more labour intensive, but with more respect for an individual’s right to private and family rights.
The current state of play doesn’t answer all questions raised by advocates at the training. Given the low bar for assessing capacity to consent to sexual relations and the act specific nature of the test, how can an individual with an intellectual disability who has capacity to consent to sex generally be protected from intercourse with a sibling or parent?
The answer really came from Jess Flanagan, who spoke about relationships in the context of Court of Protection applications and the Mental Capacity Act. Joanna considered that on a practical level, one should look at the individual’s capacity to have contact with her sibling or parent and if she was found to be lacking, then look at whether contact was in her best interests, whether it should be restricted, on what basis and in what way.. One must not forget the presumption of capacity set out in the Act, but in the event that our individual with an intellectual disability is assessed as lacking capacity to have contact with that person (which would be quite likely, given that capacity to have contact with another individual is a higher bar), a regime could be put in place in her best interests and provide the protection she may require to avoid engaging in sexual relations of an unlawful nature (which she may not understand to be unlawful).
Joanna also spoke about the difficult family member, and how in her experience as a Local Authority solicitor, she has managed many difficult individuals without the need to go to court, by just sitting down and listening to them. The Mental Capacity Act promotes collaborative decision making on behalf of an incapacitated individual and for many situations, going through the options in a calm manner is all it takes to reach a solution that is agreeable to all and in P’s best interests.
Collaboration was also the theme of District Judge Ralton’s entertaining presentation to the delegates in Bristol. He explained that while the nature of our common law approach to managing finances lends itself to one individual being appointed to manage another’s financial affairs when they are incapable of doing so themselves, this is not true of health and welfare decisions. When it comes to welfare decisions ranging from deciding when to get up in the morning, deciding when to clean your teeth, all the way to where you should live and with whom to have contact, if someone lacks the capacity to make any, or all of those decisions, the Act prefers collaborative decision making. To appoint one individual as sole decision maker for all health and welfare decisions would considerably restrict the person who lacks capacity and could result in them leading a life not of their choosing, but that of the decision maker. District Judge Ralton’s message was clear: decision making should be collaborative and not prescriptive.
At both training sessions I discussed the practicalities of acting as a litigation friend for P. I am aware that the barrister Alex Ruck-Keene has been commissioned to draft some guidance for individuals (other than the Official Solicitor) who are taking on that role, and this is eagerly awaited. District Judge Sparrow, after sharing his experiences of Court of Protection matters (having 70 cases over the past four years, in a part time role), again reminded the group that agreement is far better than contested proceedings.
Thank you to all who spoke and to all who contributed to the days. We hope you all found it as interesting and informative as we did. For further information about any of the issues raised, please get in touch with Jess Flanagan.