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Friday, 24 January 2014

Framing the test of capacity to consent to sex

The Court of Appeal has just handed down a very important judgment on the nature of the capacity to consent to sex.  In IM v LM it considered issues which have been debated back and forth between different judges in the criminal and civil courts since before the Mental Capacity Act 2005 (MCA) came into force.  Two of the key issues which different judges seemed to disagree over were:

  1. Is the 'test' of capacity to consent to sex 'issue specific' (ie. is the test just about sex in general) or 'person and situation specific' (ie. are there issues around sex with this particular person, at this place and time, as well)?
  2. Does the test of capacity to consent to sex involve merely a need to 'understand' the information, or also an ability to 'use and weigh' the information?
These might sound like rather dry issues, but in fact they go right to heart of fundamental questions about liberty, privacy, autonomy and power in the sexual relationships and in the lives of people with cognitive and intellectual disabilities.


The reason why these questions are so pivotal, is because if a person with an intellectual or cognitive disability is found to 'lack the capacity to consent to sex', a lot of consequences flow from this.  Nobody can consent to sex on behalf of a person who has been found to lack capacity in their best interests (s27 MCA).  In addition, sexual activity with 'a person with a mental disorder impeding choice' is a criminal offence under the Sexual Offences Act 2003.  For some time now, an implicit assumption behind many acts of public authorities, care providers and the Court of Protection has been that if a person lacks capacity to consent to sex, they must be prevented from having sex, because to do otherwise would be to allow them to become a victim of a criminal sex offence.

In IM v LM, the Court of Appeal summed it up by saying:
...if, in any case, there is a declaration of lack of capacity, the relevant local authority must undertake the very closest supervision of that individual to ensure, to such extent as is possible, that the opportunity for sexual relations is removed.
See, for example, a recent ruling by the Court of Protection, that visits between a husband and wife must be supervised to prevent sexual activity (Sandwell Metropolitan Borough Council v RG).    In earlier cases, such as D Borough Council v AB and A Local Authority v H, restrictions imposed to stop a person from having sex were said to amount to a deprivation of liberty - although this issue was not discussed by the Court of Appeal in respect of LM.  It's worth pausing for a minute to consider how topsy turvy this seems from a distance: a person is being preventively detained to stop them from becoming a victim of crime.  And this isn't any ordinary detention - people will be subject to a level of supervision that most prisoners and mental health detainees would not be subject to, to ensure they do not engage in sexual activity with those around them.

Because such drastic consequences flow from a finding that a person lacks the capacity to consent to sex, and because this is such as social and political hot potato, there has been considerable focus on the 'test' of capacity to consent to sex.  There is probably more case law on this particular test of capacity than any other.  This close scrutiny of the test of capacity to consent to sex highlights what is actually a wider issue around the supposedly neutral and objective 'mental capacity' approach embodied by the MCA: you can arrive at a particular outcome (which has drastic consequences for liberty and autonomy) by framing the test in a particular way.

'Issue specific' or 'person and situation specific' capacity?

If the test of capacity to consent to sex is 'issue specific', then a person can be regarded as having the capacity to consent to sex provided they can demonstrate understanding of some general issues around sex.  So, for example, Mostyn J felt that the following list was sufficient in D Borough Council v AB:
  1. The mechanics of the act
  2. That there are health risks involved, particularly the acquisition of sexually transmitted and sexually transmissible infections
  3. That sex between a man and a woman may result in the woman becoming pregnant. [42]
The third requirement not being relevant where the sex was not heterosexual sex (and perhaps similar considerations might apply if the person in question was not able to become pregnant or father a child?).  This was regarded as quite a low bar, although 'Alan' (Mostyn J is a fan of adopting names rather than initials, deeming it less dehumanising) failed that test because of his lack of understanding of the health risks - ' he thought that sex could give you spots or measles'.  Mostyn J directed that he should have sex education to remedy this, in order that he would be able to gain capacity and possibly regain his liberty.  Again, it's worth just pausing here and asking ourselves: if the consequence of failing this test is deprivation of liberty, are we happy that a person seems to have been detained in this case because they thought that sex gives you spots and measles?  How many Sexually Transmitted Diseases (STDs) must you be able to list before you have capacity, and how many people without disabilities would pass this test?  The MCA requires the test is fleshed out somehow, but it's very hard to do so in a way that avoids looking absurd.

In a later case, A Local Authority v H, Hedley J declined to formulate a test incorporating 'moral' and 'emotional' understanding, but did add one further requirement:
...does the person whose capacity is in question understand that they do have a choice and that they can refuse? That seems to me an important aspect of capacity and is as far as it is really possible to go over and above an understanding of the physical component. [25]
Thankfully, in the context of consent to contraception, the courts had vehemently rejected the proposal that a person should understand not merely the risk of pregnancy, but the social and emotional consequences of that pregnancy (including the possibility that a person's children might be removed from their care).

A point I'd like to mention in passing is that even these 'low threshold' tests seem to rely quite heavily upon a person having some verbal abilities, especially to be able to articulate the health risks.  In the past I have lived with people with intellectual disabilities who have had sexual relationships and yet had little to no verbal abilities.  Their relationships were loving, tender, entered into voluntarily and brought them great joy and happiness.  They enjoyed considerable freedom in their everyday lives, because nobody was trying to stop them from having sex.  At the time the MCA had not quite come into force, and although the common law would have been pretty similar nobody in my neck of the woods asked questions about 'capacity' and they were left in peace, with some contraception.  I find it very sad to think that if this test were imposed on them, not only would they be prevented from having sex, they would also be subject to a regime of supervision which would destroy the ethos of the environment they lived in.

To return to the issues, the question of person-specific or situation-specific capacity first arose in the criminal sphere.  The facts of R v C (2009) make very disturbing reading, and you can really see why the court leaned towards adding further elements to the test of capacity.  In that case, the complainant was a woman of 28 years old who had various diagnoses - including mental health problems and mild intellectual disabilities.  She had been detained under the Mental Health Act 1983 several times, had recently been discharged but on the morning of the offence a doctor had in fact completed a form recommending compulsory admission to hospital, which had not been executed.  Later that day she met 'C', and she told him that she had been in hospital for nine years and had recently left.  She said that people were after her and he offered to help:
She went with him to his friend’s house. He sold her mobile telephone and bicycle and gave her crack. She went to the bathroom but the defendant came in and asked her to give him a “blow job". Her evidence was that she was really panicky and afraid and wanted to get out of there. She was saying to herself “these crack heads . . . they do worse to you". She did not want to die so she just stayed there and just took it all. [18]
Lady Hale went on to say that:
 The complainant here, even in her agitated and aroused state, might have been quite capable of deciding whether or not to have sexual intercourse with a person who had not put her in the vulnerable and terrifying situation in which she found herself on 27 June 2007. The question is whether, in the state that she was in that day, she was capable of choosing whether to agree to the touching demanded of her by the defendant. [26]
So the question here was not whether the complainant could ever consent to sex - it was whether on this occasion, with this person she had the capacity to refuse consent.

Before returning to the Court of Appeal's decision in IM v LM, I just want to highlight that even people arguing from a disability rights perspective for a less capacity-focussed approach to consent to sex have argued for an approach which takes into account the specifics of a relationship and a particular situation.  The Centre for Disability Law and Policy at NUI Galway wrote an interesting submission to the Irish Law Reform Commission, which advocated a general test (ie. not just one which applied to people with disabilities) which took into account various factors when evaluating consent to sex, including that:
There needs to be a reasonable degree of equality between the parties, so that both parties have sufficient power to make the choice to engage or not engage in sex, without fear of adverse consequences.
This was based on approach outlined by McCarthy and Thompson in a great chapter in a book called Making Sense of Sexual Consent.  I think a lot of feminists would also endorse an approach which took into account the dynamics of a relationship when considering whether consent to sex was valid.

Although in general such a disability-neutral approach might be desirable, the problem with a more expansive test in the English and Welsh context is that it adds yet more hurdles which a person must jump in order to pass the test of consent to sex, and remain free of the consequences for liberty and privacy which ensue if a person is said to lack capacity in that regard.  A person must be able to demonstrate not only that they understand the mechanics of the act etc, but also that they are able to make a choice in that particular context with that particular person.  This requires a yet more invasive inquiry into their understanding and evaluative capacities, and an enquiry which must be renewed upon each new relationship they embark upon.

The Court of Appeal were very aware of this tension in IM v LM, and came up with a novel solution, which had the effect of finding that (almost) all the judges were correct: the test that should be applied differs in civil and criminal contexts.  In a criminal context, the issue is a specific incident, and so the approach should be focussed on a person's situational and person-specific capacity.  This was referred to as the 'exercise of capacity'.  In a civil context, in the Court of Protection (and the application of the MCA in everyday care decisions), the test should be 'general' - not person or situation specific.  This framing of the test of capacity in a civil context was very explicitly pragmatic:
77. 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.
This echoed a comment made by Baker J in A Local Authority v TZ:
'To require the issue of capacity to be considered in respect of every person with whom TZ contemplated sexual relations would not only be impracticable but would also constitute a great intrusion into his private life."'
The Court of Appeal's judgment does raise the possibility that a person might be found to have the capacity to consent to sex in general, and so be free of a regime of supervision to prevent them from having sex, and yet become a victim of crime if a particular person disturbs their ability to give or refuse consent to sex.  My guess is that this might be managed in some cases by the 'capacity to consent to contact', which is a whole other debate about person-specificity.  In the context of the law as it stands, the Court of Appeal's decision is probably the most liberal solution that can be arrived at, but as I mentioned above, some people will still fall afoul of this low threshold.  I also think it's a valid question why we need a specific offence of sex with a person with a mental disorder impeding choice, rather than a general offence of sex under undue influence or pressure.  I'm not a criminal lawyer though, so I won't delve any further into that one.

Do you need to 'use and weigh' the information, or merely understand it, in order to consent to sex?

The other area where R v C had appeared to depart from the approach taken in (some of the) Court of Protection cases was the extent to which a person had to be able to 'use and weigh' the information relevant to the decision, or merely understand it.  The Court of Appeal thought that in R v C Lady Hale had understood Munby LJ to say that the capacity to consent to sex only required understanding and not using and weighing information as well.  The test of capacity formulated under the MCA very clearly does incorporate the requirement that a person is not only able to understand information but also to 'use or weigh'* it:
...a person is unable to make a decision for himself if he is unable—
(a) to understand the information relevant to the decision,
(b) to retain that information,
(c) to use or weigh that information as part of the process of making the decision, or
(d) to communicate his decision (whether by talking, using sign language or any other means).
The Court of Appeal confirmed that a person must be able to satisfy all elements of the test, but they suggested that what Munby LJ had meant was not that sex was different in not requiring a person to 'use or weigh', but that sex was different in respect of the extent of judicial inquiry into whether they could use or weigh.

The Court of Appeal took an approach quite similar to that of Baker J in TZ, which considered how people ordinarily went about making decisions about sex and took care not to impose a higher standard on people with disabilities.  In TZ, Baker J had said:
'Most people faced with the decision whether or not to have sex do not embark on a process of weighing up complex, abstract or hypothetical information....There is a danger that the imposition of a higher standard for capacity may discriminate against people with a mental impairment.' [55]
The Court of Appeal in IM v LM said: 'the notional decision-making process attributed to the protected person with regard to consent to sexual relations should not become divorced from the actual decision-making process carried out in that regard on a daily basis by persons of full capacity.' That ordinary decision making process was ' largely visceral rather than cerebral, owing more to instinct and emotion than to analysis' [80]. For this reason, the Court of Appeal felt, 'the ability to use and weigh information is unlikely to loom large in the evaluation of capacity to consent to sexual relations' [81]. It was not an 'irrelevant consideration', but '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' [81].  They endorsed Hedley J's view, expressed elsewhere, that the purpose of the MCA '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".'  They issued a general caution against the temptation to expand the test of capacity to consent to sex to include more information, describing it as paternalistic and 'a derogation from personal autonomy' [82].

General comments

At the very least, this case offers greater clarity in what has become a very frustrating back and forth where the courts were unable to conclusively agree upon what the 'capacity to consent to sex' consists in.  That said, precisely what must be understood is not determined in this case, and there may be ongoing argument there.  One feels that the Court of Appeal have done the best they could within the current law to carve out a space for people with intellectual disabilities and cognitive impairments to be free to experience sexual relationships - including making mistakes, and sometimes mistakes with painful and longstanding consequences - as other people do.  It's interesting to see that the Court of Appeal - like Baker J in his earlier judgment - has taken an approach which contrasts the expectations heaped upon people with disabilities to demonstrate the capacity to consent to sex, with the messy and emotional and instinctive reality of such decisions in other people's lives.

In many ways this is a positive development, but it still creates some difficulties.  In particular, it still forces the lower courts (and those on the ground who implement the MCA) to formulate precisely what must be understood in order to demonstrate 'ordinary' capacity.  I think there is still a danger that people with some disabilities will end up having to jump through hoops that others do not - I bet there are plenty of 16 year olds, and quite possibly those who haven't had sex education, who could not tell you with any degree of accuracy the health risks connected with sex.  And as I noted above, it's a standard which some people may never be able to meet, even if they would be capable of enjoying loving and voluntary sexual relationships.  At the same time, people with intellectual disabilities are often at risk of sexual exploitation (no less in institutions than elsewhere), and it's not clear that being able to to say that sex risks giving you herpes, say, instead of measles, offers much protection in that regard.  I think what's really happening is that the MCA's use to protect in this area is increasingly limited, and those who support people with intellectual and cognitive disabilities will have to find more consensual ways of helping to reduce risks of exploitation.

Another interesting characteristic of the Court of Appeal's ruling is that the test of capacity is very much framed with its consequences in mind; a kind of meta-outcome approach.  Within the logic of the MCA, the separation of civil and criminal standards seems to me to be a more workable balance between taking action against targeted sexual exploitation of people with disabilities and giving people greater freedom.  It's reminiscent of an approach suggested by Peter Bartlett in a very worthwhile paper on Sex, dementia, capacity and care homes, which suggests that sexual exploitation should be tackled through prosecutorial discretion.

The question of whether there should be a 'general test' which applies to everyone is still one I think we need to confront.  And when we do, I think we also need to consider what flows from that test not being met.  On the current approach under the MCA, what flows is - as Hedley J and the Court of Appeal put it - 'forensic cotton wool'.  If a more expansive general test is adopted, would that mean more 'forensic cotton wool' for everyone, or is what is actually needed an entirely different approach to protecting people (including people with disabilities) from sexual exploitation?  I wonder if the whole 'test' mentality is flawed, and actually what we are all concerned about is power, and power across all kinds of vulnerable situations - not just those that people with disabilities might experience.  What such an approach would look like, I don't know, but it's certainly a question that needs to be considered in the context of questions posed by the UN Convention on the Rights of Persons with Disabilities.


 *As an aside, the test as formulated in the MCA says that a person must be able to "use OR weigh", not "use AND weigh" information.  As the EAP philosophers have pointed out in many of their events, this is potentially important as a person could be able to 'use' and not 'weigh', or 'weigh' and not 'use' the information, and still pass the test.  This distinction seems to be lost on the courts though, as a large number of judgments use the incorrect conjunctive (not disjunctive) formulation.  To be honest, I suspect nobody has thought very deeply about whether these words have different meanings, and I suspect there is a good deal of redundancy in the functional test with things popping up under one head which could probably as easily pop up under another ("she can't have understood the information, or she would not have weighed it like that...").

Postscript: Another issue has been bothering me about this case.  The case came to court because LM's partner of several years had been barred from seeing her (it's unclear by whom), and he challenged those restrictions.  I wonder what would have happened if he had not initiated such a challenge? What authority did whichever body imposed those restrictions have to do so without first seeking the authority of the court?  It strikes me that had her partner not initiated proceedings, her Article 8 rights would have been violated.

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