Eleanor Roosevelt, 1958

'Where, after all, do universal human rights begin? In small places, close to home -- so close and so small that they cannot be seen on any map of the world. Yet they are the world of the individual person... Unless these rights have meaning there, they have little meaning anywhere. Without concerted citizen action to uphold them close to home, we shall look in vain for progress in the larger world.' Eleanor Roosevelt, 1958

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Thursday, 16 February 2012

Allan Norman: Sex, residence, and the capacity to make unwise decisions

I'm really delighted to host this guest blog by Allan Norman, Principal Social Worker & Solicitor at Celtic Knot (www.celticknot.org.uk), an independent law firm and social work practice. Allan's post explores how very different real life outcomes can follow a capacity assessment where a person might make an unwise decision, and asks whether we would want the law to be that way if we were the subject of a capacity assessment. Guest posts responding to this question, or on other capacity and social care topics, very much welcomed.
A capacity decision can be, as I tell my students, like a fork in the river. You have to go one way or the other. If a person has capacity, they are allowed to make unwise decisions. If a person lacks capacity, we must make decisions for them in their best interests. Which fork we take is particularly significant if they lead to completely different destinations - that is, the unwise decision that they would have made is the opposite of what we think is in their best interests.

Caselaw is developing some tools for ameliorating the worst effects of this, for example laying emphasis on how a person's previously expressed wishes may form part of their best interests. Meanwhile, I have argued, if you control the capacity question - what is the decision, the making of which has to be assessed - you have significant control over the answer. 

In assessing the justness of any law or any decision, I am a fan of John Rawls' Theory of Justice and the Veil of Ignorance: what would we want the law or the decision to be if we did not know in advance what position we might ourselves occupy in society? Some mental capacity and best interests decisions seem to me to fail that test. Here, I want to highlight a recent decision on sexual relations, and an older decision on residence. 

Sexual relations 

The sexual relations decision is Re H; A Local Authority v H [2012] EWHC 49 (COP) (27 January 2012). It is a disturbing case, not least because you wonder what unknown past history brought H to her intensely sexualised present day. Among the findings or observations, I highlight in respect of H: 
  • "mild learning difficulties and atypical autism with a full scale IQ of 64" (para 6) 
  • "until 2009 [aged 27], it was never judged necessary for a formal statutory intervention in her life to take place" (para 7) 
  • "she clearly had difficulty saying no but that is not the same as understanding that she had a choice: she understood that but had found it very difficult to practise" (para 28) 
  • "H would struggle [with weighing information, MCA section 3]... partly through an inability to deploy the knowledge she has when (as readily happened) she was sexually aroused" (para 30) 
The mental capacity decision is that she lacks the capacity to have sexual relations. While there is no best interests decision as such (because you cannot make such decisions on behalf of someone who lacks capacity, Mental Capacity Act, section 27), "she is currently prevented from having sexual activity with another". Indeed, paragraph 13 does not beat about the bush: she is currently deprived of her liberty in order to prevent her from entering into sexual relations. Hence this case seems a clear example of where the Mental Capcity Act leads to an outcome diametrically opposed to the unwise decision that they would have made.

Where would the Veil of Ignorance have led us? Among the charactersitics of which you would be ignorant in advance would be your gender, your appetite for sexual activity, and your vulnerability. From this original position, I suggest that male and female sexuality would be treated in similar ways; that sexual activity would be broadly permitted and not straightjacketed within an institution such as marriage; and that the law would be rigorous in protecting the vulnerable from sexual exploitation. 

If that is right, then where the Veil of Ignorance would have led differently is not so much the mental capacity decision upon which the judgement is focussed, but the outcome thereafter. And it is Rawl's first principle, the liberty principle, that is mainly offended against, "each person is to have an equal right to the most extensive basic liberty compatible with a similar liberty for others". Arguably, at least, her best interests might lie more in rigorous protection from exploitation (para 9 references include group sex with "much older men" and that "she saw herself as obligated to submit to that which was in fact rape") than in depriving her of her liberty so as to prevent her from having any sexual activity. 

Place of residence 

Meanwhile, I wonder whether LT, the twenty-something woman in RT v LT & Anor [2010] EWHC 1910 (Fam) (27 July 2010) has yet got home. LT was adopted over 20 years ago by RT. Attempts to label her mental disorder have included "Reactive Attachment Disorder" and "Pathological Demand Avoidance Syndrome": 

The decision in this case provides a stark example of where the unwise decision that they would have made is the opposite of what we think is in their best interests. Stark because here it is because she wants to go home so much that she must be denied the right to do so. 

Alright, strictly speaking it is not the intensity of her wishes that was determinative, so much as her inability to entertain the counter-arguments. But let me ask you to think hypothetically for a moment. Imagine that, deeply in love, you wish to enter into a lifelong partnership with someone who your family and friends unanimously consider unsuitable for you. You are blind to their faults. 

Now in a legal setting, you are being asked to justify why this is your freely made decision. Is there a possibility you will avoid making any concession that might be seen as weakness, a chink in the armour of your certainty, borne of your love or infatuation? 

It seems a concerning proposition that we can be legally deprived of what we want because the intensity of our want leaves us unable to acknowledge the force of the counter-arguments. And again, it seems to be a position that it would be hard to arrive at from behind the veil of ignorance. 

Since it is the common experience of humankind that we do not know today what disability we may develop tomorrow, and that our children's future is a canvas upon which the feared and unexpected may anytime be painted, stepping behind the veil of ignorance ought to be an exercise we can more easily conceive of here.

From behind that veil, surely we would want support from the State for our endeavours to stay together as a family. Here we have Rawl's second principle in play. the liberty principle, economic inequalities are to be arranged so that they are to be of the greatest benefit to the least-advantaged. In other words, that family receivs an unequal, disproportionate amount of support to stay together because equality for its vulnerable members requires that it be so. 

If the framers of the legislation were required to do a Rawlsian justice impact assessment, I wonder what they would have said?


  1. great post when i first read the judgement in LA v H i reluctantly agreed despite what i thought was a strange remark by the judge saying people cant marry if they cant consent to sexual intercourse, but now not sure

  2. Isn't the main problem with the case on sexual relations that the lower courts are still taking a generic approach, instead of a person-specific one? She might well have capacity to consent to sex with someone who was not exploiting her, but not in other circumstances where she is being raped. And, if the criminal justice system actually worked so that criminal prosecutions are made even though the victim has a learning disability, it might not be left to the Court of Protection to try to sort it out.

  3. I think the courts would say that they're taking a person-specific-generic approach, if that makes sense. They assess each individual's capacity to consent to sex *in general*, rather than to sex with a particular individual. Lady Hale takes a different view in Obiter remarks, but that hasn't really been taken forwards. Probably because LA's don't want to have to consider whether a person has capacity on a case by case basis and vet all their sexual partners. How far LA's have a duty to protect people from non-capacitous sex I'm not sure, but they certainly seem to take this seriously. I can't share it as it's paywalled, but there's a brilliant paper by Bartlett on sex and capacity that I really recommend:
    BARTLETT, P. (2010) 'Sex, Dementia, Capacity and Care Homes'. Liverpool Law Review, 31, 137.

    It's about dementia, but still relevant and interesting. I think the relationship between criminal prosecutions and the COP sex cases is quite complex. Technically speaking, sex with anyone who lacks capacity to consent to it is an offence under the Sexual Offences Act 2003, but what about where both parties have borderline capacity? A criminal prosecution may seem quite heavy handed in such circumstances (indeed, if both parties lack capacity, who should you prosecute?!).

  4. I find it strange that there is no understanding on the outcome of the sex. If two people without capacity have sex and appear to benefit from it why does consent even matter?

    Thanks for the Barlett article hat tip. I think I have far more questions than answers now though. It is available on Open Access here: http://www.springerlink.com/content/eh28428144826920/fulltext.pdf