In LB Tower Hamlets v NB & AU  EWCOP 27, Hayden J has made further observations about the test for capacity to consent to sexual relations. I use the term “observations” advisedly, because his judgment does not, in fact, reach a conclusion as to whether the woman in question, NB, has or lacks capacity to consent to sexual relations.
The case is one that has been before Hayden J for some time, and generated a judgment ( EWCOP 17) in which he expressed, in particular, real concern about the manner of reporting of a previous interim hearing. In this most recent judgment, reserved from the previous hearing, Hayden J identified that the questions concerning the protection of the vulnerable in media coverage “will require to be addressed by the ad-hoc Court of Protection Rules Committee.”
For present purposes, the key feature of the case was that the question of capacity to consent to sexual relations was being posed in relation to a couple who had been married since 1992, with a daughter born in 1998, and NB now being beyond child-bearing age. In his interim judgment, Hayden J had indicated that he was reserving his judgment “in order that I can take the time to look carefully and in some detail at the case law and its applicability to the facts of this case. It would appear, that it requires to be said, in clear and unambiguous terms that I do so in order to explore fully NB’s right to a sexual life with her husband and he with her, if that is at all possible.” A critical element in this was whether the test – held by the Court of Appeal to be issue- or act- specific – could in some way be tailored in the case before him to take into account the particular situation of NB and AU.
Subsequent to that hearing, the Court of Appeal delivered judgment in B v A Local Authority  EWCA Civ 913, delivering a fairly heavy hint that it would not look askance at an approach which enabled a conclusion to be drawn that NB had capacity to consent to sexual relations. Hayden J was in receipt of further written submissions from both the Official Solicitor and the local authority; the husband, AU, apparently unable (or unwilling) to play any further part. It is fair to say that Hayden J does not seem to have had much time for the submissions of any party before him, and his judgment therefore essentially represents his own exegesis of the position.
Hayden J reviewed the case-law, and made the following series of observations:
27. The omnipresent danger in the Court of Protection is that of emphasising the obligation to protect the incapacitous, whilst losing sight of the fundamental principle that the promotion of autonomous decision making is itself a facet of protection. In this sphere i.e., capacity to consent to sexual relations, this presents as a tension between the potential for exploitation of the vulnerable on the one hand and P’s right to a sexual life on the other.
28. These are difficult issues involving intensely personal interactions. The lexicon of the law, perhaps even that of ordinary discourse, presents a challenge when seeking to distil the essence of the concepts in focus. With hesitation and some diffidence, it seems to me to be important to recognise and acknowledge, that in this interpersonal context, relationships are driven as much by instinct and emotion as by rational choice. Indeed, it is the former rather than the latter which invariably prevail. This fundamental aspect of our humanity requires to be identified and appreciated as common to all, including those who suffer some impairment of mind. To fail to do so would be to lose sight of the primary objective of the MCA. It would require a disregard of at least two decades of jurisprudence emphasising P’s autonomy. Moreover, it would seriously risk discriminating against vulnerable adults with learning disabilities and other cognitive challenges.
29. It strikes me as artificial, at best, to extract both instinct and emotion from an evaluation of consent to sex, they are intrinsic to the act itself. In many ways, of course, instinct and emotion are the antithesis of reason. However, whilst they may cloud decision making, perhaps even to the point of eclipsing any calculation of risk, they are nonetheless central to sexual impulse. To establish an inflexible criterion to what may properly constitute ‘consent’ risks imposing a rationality which is entirely artificial.
30. It also needs to be emphasised that the law does not identify the criterion which are being considered here. The MCA 2005, in some ways like the Children Act 1989, is a distillation of principles which require to be applied in the context of a careful balance, one in which proportionality of intervention will always be an indivisible feature. Much of the applicable criteria concerning assessment of capacity, across a broad range of decisions, finds its way into this process via the conduit of expert evidence. This is all profoundly helpful to the practitioners and the professionals but the danger is that conceptual silos are created which fail to appreciate the individual and the infinite variety of people’s lives.
41. It is important to identify that depriving an individual of a sexual life in circumstances where they may be able to consent to it with a particular partner, is not ‘wrapping them up in cotton wool’. Rather, it is depriving them of a fundamental human right. Additionally, I repeat, AU’s Article 8 rights are also engaged in this context. He too has a right to a sexual life where there is true consent and mutual desire.
42. One of the central difficulties faced by practitioners, both in the court setting and in the wider community, is that the relevant tests for capacity are framed by psychologists, psychiatrists etc and a practice has developed of applying these tests as if they had the force of statute. It is necessary to emphasise that when an application is made to a judge, it is the judge who evaluates the broad canvas of evidence to determine the question of capacity.
43. In simple terms, in these circumstances, it is judges not experts who decide these issues. Judges have the enormous advantage of hearing a wide range of evidence about P from a diverse field of witnesses, often including family members. As I have sought to illustrate in my analysis of the law […], the Courts have repeatedly emphasised that the tests are to be applied in a way which focus upon P’s individual characteristics and circumstances. Whilst it is difficult to contemplate many heterosexual relationships where a failure to understand a risk of pregnancy or sexual disease (consequent upon sexual intercourse) will permit a conclusion that P has capacity, it should not be discounted automatically. This is to elevate the expert guidance beyond its legitimate remit.
44. Moreover, expert evidence gains its force and strength when challenged and robustly put to the assay. Theories grow, develop and, as the Courts have seen in recent decades, are sometimes debunked. Attributing to expert evidence the status of legislative authority serves also to deprive it of its own intellectual energy and inevitably, in due course, some of its forensic utility.
Rejecting the Official Solicitor’s submission that the court should identify a category of individuals for whom pregnancy and sexually transmitted disease will not require assessment, Hayden J considered that this would be to:
48. […] overburden the test and to introduce unnecessary technicalities. It is also, with respect to Mr Bagchi, difficult to reconcile with his own acceptance of the ‘tailored’ approach which he characterises as ‘pragmatic and flexible’. At risk of labouring the point further, I am emphasising that the tests require the incorporation of P’s circumstances and characteristics. Whilst the test can rightly be characterised as ‘issue specific’, in the sense that the key criteria will inevitably be objective, there will, on occasions, be a subjective or person specific context to its application.
Hayden J went on to develop, in different ways, the theme that:
51. The applicable criteria in evaluating capacity to consent require to be rooted within the clear framework of MCA 2005 ss 1 to 3. The individual tests are not binding and are to be regarded as guidance ‘to be expanded or contracted’ to the facts of the particular case. They are to be construed purposively, both promoting P’s autonomy and protecting her vulnerability.
54. That there is no need to evaluate an understanding of pregnancy when assessing consent to sexual relations in same sex relationships or with women who are infertile or postmenopausal strikes me as redundant of any contrary argument. Nor, with respect to what has been advanced in this case, can it ever be right to assess capacity on a wholly artificial premise which can have no bearing at all on P’s individual decision taking. It is inconsistent with the philosophy of the MCA 2005. Further, it is entirely irreconcilable with the Act’s defining principle in Sec. 1 (2) … ‘a person must be assumed to have capacity unless it is established that he lacks capacity.’
56. […], a monogamous marriage of some thirty years duration, where there is no history of sexually transmitted disease, is probably a secure base from which to predict that this is a very low risk for the future. It is in this context that Mr Bagchi’s absolutist approach runs the risk of ‘dressing an incapacitous person in forensic cotton wool’, to use Hedley J’s striking phrase in A NHS Trust v P  EWAC 50 (COP). It is not the objective of the MCA to pamper or to nursemaid the incapacitous, rather it is to provide the fullest experience of life and with all its vicissitudes. This must be kept in focus when identifying the appropriate criteria for assessing capacity, it is not to be regarded as applicable only to a consideration of best interests.
60. […] What I am emphasising here is the application of ‘the Act specific test’ (to use the favoured argot), deployed in a way which promotes P’s opportunity to achieve capacity. This, as I have laboured to highlight, is nothing less than a statutory imperative. It cannot be compromised.
66. The Court of Protection deals with human beings who, for a whole variety of reasons, have lost or may have lost capacity. This may be temporary, permanent, fluctuating or limited to a constrained sphere of decision taking. A declaration of incapacity whether tightly circumscribed or expansive in its scope, should not impose sameness or uniformity. The personality and circumstances of the incapacitous are as rich, varied and complex as those of anybody else. All this requires to be taken in to account when evaluating capacity in every sphere of decision taking. As practitioners and indeed as judges we must be vigilant to ensure that the applicable tests do not become a tyranny of sameness, in circumstances where they are capable of being applied in a manner that may properly be tailored to the individual’s situation. To do otherwise would, for the reasons I have set out, lose sight of the key principles of the MCA 2005.
On the facts of the case before him, Hayden J “profoundly disagreed” with the assertion made by the local authority that:
65. .[…] NB’s assumed capacity to consent to a sexual relationship with her husband has been rebutted. On the contrary, the preponderant evidence suggests that she is capacitous. This was foreshadowed in Mr Bagchi’s earlier submissions, referred at para 44 above (though I recognise that they were not structured around the test as now identified). The Local Authority may wish to consider a reassessment of NB’s capacity in the light of this judgment. This will, of course, depend on whether the marriage survives.
Whilst it is always dangerous to seek to summarise an extensive judgment such as that delivered in this case in short compass, the clear message of this judgment is that it is both legitimate and indeed mandatory to consider the question of whether a person has capacity to consent to sex on the basis of the full facts of their situation, and with a clear eye to the interference with rights that a conclusion that they lack capacity will give rise to.
One may or may not agree that the relevant tests for capacity have been framed by psychologists, psychiatrists etc, as opposed to judges (a clear example of judicial framing being that of Cobb J in Re A, concerning capacity to make decisions as to social media), but it is undoubtedly the case that in a case that has come to court, it is the judge, not the expert(s) who must ultimately decide whether the person has or lacks capacity to make the decision in question.
What, of course, the judgment does not address is how a practitioner outside the court arena is to decide whether the person has or lacks capacity to consent to sexual relations. It may be that Hayden J considers that the level of interference with the person’s rights is such that only a judge should ever conclude that a person lacks capacity to consent to sexual relations. Such could certainly be construed as an example of the calibration of the procedural guarantees implied into Article 8 ECHR (see, e.g. AN v Lithuania  ECHR 462). It is to be hoped that, if, indeed, Hayden J does consider this to be the case, he makes this clear (and the basis upon which he considers this to be so) in what is presumably going to be the final judgment in this case in which he definitely determines whether or not NB has or lacks capacity to consent to sexual relations.
Until and unless Hayden J does so, practitioners will have to consider the test for capacity to consent to sexual relations in relation to those individuals before them. They should do so, I suggest, by reference:
1. To the informational guidance endorsed by the Court of Appeal in B;
2. The act-specific test as endorsed by the Court of Appeal in both that case and the earlier IM v LM one.
However, in applying the test, it is clear in light of this decision that practitioners should be mindful:
1. that information must be tailored to the specific facts of the individual case so, for instance, it will not be relevant to consider whether the person can understand, retain and use/weigh information about the potential for pregnancy if this is of no relevance to their factual position;
2. of the support principle in s.1(3) MCA 2005; and
3. of the consequences of a conclusion that a person lacks capacity to consent to sexual relations.
In this, it is important to note (and a factor not discussed by Hayden J in his judgment) that, as the Court of Appeal confirmed in B (at paragraph 51) that the ability to understand the concept of and the necessity of one’s own consent is fundamental to having capacity: in other words that “P knows that she/he has a choice and can refuse”.