In B v A Local Authority  EWCA Civ 913, the Court of Appeal has made both general and specific observations about the assessment of mental capacity in determining the appeal/cross-appeal against the decision of Cobb J in Re B (Capacity: Social Media: Care and Contact)  EWCOP 3. As it noted at the outset of its judgment:
5. The important questions on these appeals are as to the factors relevant to making the determinations of capacity which are under challenge and as to the approach to assessment of capacity when the absence of capacity to make a particular decision would conflict with a conclusion that there is capacity to make some other decision.
In Re B, handed down at the same time as Re A  EWCOP 2, Cobb J took the test that he had drawn up in Re A for capacity to decide to use social media for purpose of developing or maintaining connections with others, and applied them to a 31 year old woman, B, to make an interim declaration that she lacked that capacity. He also made interim declarations about B’s capacity to decide as to residence, care, contact and sexual relations.
The Official Solicitor, as B’s litigation friend, appealed against those parts of Cobb J’s order relating to social media and sexual relations. The local authority cross-appealed against Cobb J’s determination that B had capacity to decide upon residence.
By way of general observation, the Court of Appeal noted that:
35. Cases, like the present, which concern whether or not a person has the mental capacity to make the decision which the person would like to make involve two broad principles of social policy which, depending on the facts, may not always be easy to reconcile. On the one hand, there is a recognition of the right of every individual to dignity and self-determination and, on the other hand, there is a need to protect individuals and safeguard their interests where their individual qualities or situation place them in a particularly vulnerable situation: comp. A.M.V v Finland (23.3.2017) ECrtHR Application No.53251/13.
36. As has frequently been said, in applying those provisions the court must always be careful not to discriminate against persons suffering from a mental disability by imposing too high a test of capacity: see, for example, PH v A Local Authority  EWHC 1704 (Fam) at [16xi].
The Court of Appeal had little hesitation in dismissing the Official Solicitor’s appeal, because the Official Solicitor did not challenge the finding in the order that B lacked capacity in this domain, but rather the reasoning that underpinned that finding. However, “[i]t is a basic principle […] that an appeal is against an order and not merely the reasoning of the judge in support of his or her order to which no objection is made.”
The Court of Appeal limited itself to observing that there was no particular advantage to the alternative formulation that the Official Solicitor advanced for the formulation of the relevant information, and that
44. […] Whether the list or guideline of relevant information is shorter or longer, it is to be treated and applied as no more than guidance to be adapted to the facts of the particular case.
The Official Solicitor objected to the following aspects of Cobb J’s formulation of the relevant information:
(iii) the opportunity to say no; i.e. to choose whether or not to engage in it and the capacity to decide whether to give or withhold consent to sexual intercourse.
(iv) that there are health risks involved, particularly the acquisition of sexually transmitted and transmissible infections;
(v) that the risks of sexually transmitted infection can be reduced by the taking of precautions such as the use of a condom.
In dismissing the Official Solicitor’s appeal, the Court of Appeal confirmed (paragraph 51) that the awareness of the ability to consent or refuse sexual relations is more than just an item of relevant information (but is one), but is fundamental to having capacity. It then went on to confirm that:
57. In accordance with the MCA s.3(1)-(4), the ability to understand and retain [the risk of catching a sexually transmitted infection through unprotected sexual intercourse, and the protection against infection provided by the use of a condom, satisfy that requirement] at least for a period of time and to use or weigh them as part of the decision whether to engage in sexual intercourse are essential to capacity to make a decision whether to have sexual intercourse. What is critical is not that a person, whose capacity is being assessed, is permanently aware of how sexually transmitted infections may be caught and that protection may be provided by a condom. The assessment is not a general knowledge test. Rather it is an assessment of whether the person being assessed has the ability to understand those matters when explained to him or her and to retain the information for a period of time and to use or weigh it in deciding whether or not to consent to sexual relations.
58. We are not bound by any of the authorities cited to us to reach a different conclusion. None of them state expressly that capacity is sufficiently demonstrated by a mere awareness that some kind of ill health may result from sexual relations even if that awareness is no more than a wholly misguided notion of how or why the ill health is caused and has nothing to do with what are in fact sexually transmitted infections or how they may be caused. We respectfully disagree with Parker J in London Borough of Southwark v KA at  that it is not necessary to understand condom use. The only practical purpose of understanding that sexually transmitted infections can be caused through sexual intercourse is to know how to reduce the risk of infection since the purpose cannot be to encourage abstinence from intercourse completely.
As the Court of Appeal noted:
59. There are those who would object that many capacitous persons have unprotected sexual intercourse. Indeed, the MCA s.1(4) provides that a person is not to be treated as unable to make a decision merely because he makes an unwise decision. As Peter Jackson J said in Heart of England NHS Foundation Trust v JB  EWHC 342 (COP) at , the temptation to base a judgement of a person’s capacity upon whether they seem to have made a good or bad decision, and in particular upon whether they have accepted or rejected medical advice, is absolutely to be avoided “as it would allow the tail of welfare to wag the dog of capacity”. It is important always to bear in mind, however, as stated in paragraph 4.40 of Chapter 4 of the Code of Practice, that there is a fundamental and principled distinction between an unwise decision, which a person has the right to make, and decisions based on a lack of ability to understand and weigh up information relevant to a decision, including the foreseeable consequences of a decision. As the Code of Practice says, information about decisions the person has made based on a lack of understanding of risks or inability to weigh up the information can form part of a capacity assessment, particularly if someone repeatedly makes decisions that put themselves at risk or result in harm to them.
The Court of Appeal, by way of “brief postscript” noted that B had been previously assessed on a number of occasions as having capacity to consent to sexual relations:
61. […] the MCA s.1(3) provides that a person is not to be treated as unable to make a decision unless all practicable steps to help him to do so have been taken without success. In her oral evidence Dr Rippon accepted that she had not asked B about condoms. At one point in his oral submissions Mr Lock appeared to admit that there had been a breach of the MCA s.1(3) because Dr Rippon had not reminded B how sexually transmitted infections were passed and the role of condoms in reducing the risk of infection. We make no observations and no findings in relation to that aspect because it does not form a ground of appeal and only arose in the course of exchanges between Mr Lock and ourselves in the course of the hearing. Further work on whether B has sufficient understanding of sexually transmitted infections and how to reduce the risk of them will no doubt form part of the continuing engagement with B prior to a final decision on capacity to consent to sexual relations under the MCA s.15.
The local authority cross-appealed Cobb J’s decision that B had capacity to decide on residence, criticising his use of the list of relevant information set out in the decision of Theis J in Re LBX. The Court of Appeal observed that:
62. So far as concerns the appropriateness of the list, as in the case of the list specified by Cobb J in relation to a decision to use social media, we see no principled problem with the list provided that it is treated and applied as no more than guidance to be expanded or contracted or otherwise adapted to the facts of the particular case.
At the heart of the local authority’s appeal was the argument that Cobb J’s conclusion on B’s capacity to make decisions on residence, in particular whether to move to Mr C’s property or to remain at her parents’ home or to move into residential care, was fundamentally flawed in:
(1) failing to take into account relevant information relating to the consequences of each of those decisions, and (2) producing a situation in which there was an irreconcilable conflict with his conclusion on B’s incapacity to make other decisions, and so (3) making the Local Authority’s care for and treatment of B practically impossible. Mr Lock submitted that the Judge’s flawed conclusion followed from his approach in analysing B’s capacity in respect of different decisions as self-contained “silos” without regard to the overlap between them.
The Court of Appeal agreed.
This appeal/cross-appeal, which was both heard and determined at commendable speed, is of importance both for the Court of Appeal’s specific observations about capacity to consent to sexual relations – in particular in endorsing the fundamental nature of the need to understand that it is a consensual act – and also for its general observations about how to determine relevant information. It is helpful for confirming – in principle – the use of lists of/guidelines as to information drawn up by courts in different cases (and set out in our Guide to the assessment of capacity), whilst calibrating this with the obvious point that they are guidance to be applied to the facts of any given case. It is also helpful for confirming, in essence, the need to ensure that being too narrowly focused decision-specificity (which, in fairness Cobb J observed did pose its own problems) did not lead to conclusions that are mutually incompatible.
Finally, it will be extremely interesting to see whether Hayden J follows the rather broad hint given by the Court of Appeal that a flexible approach would be acceptable to enable him to resolve the conundrum in the case before him concerning capacity to consent to sexual relations in the context of marriage:
49. […] it is not in dispute on this appeal that the test for capacity to consent to sexual relationships is general and issue specific, rather than person or event specific. The application of that test in other cases is, however, a live matter as it is currently under consideration by Hayden J in London Borough of Tower Hamlets v NB  EWCOP 17. In that case the judge observed in his interim judgment (at ) that there was only one individual with whom it was really contemplated that NB was likely to have a sexual relationship, her husband of 27 years; and it therefore seemed to the judge entirely artificial to be assessing her capacity in general terms when the reality was entirely specific. He added (at ) that it might be that NB’s lack of understanding of sexually transmitted disease and pregnancy might not serve to vitiate her consent to have sex with her husband. There was no reason to suggest that her husband had had sexual relations outside the marriage and there was no history of sexually transmitted disease. Hayden J has reserved his judgment on the issue. Another example would be a post-menopausal woman, for whom the risk of pregnancy is irrelevant. In IM (at [- the Court of Appeal held that, by contrast with the criminal law where the focus, in the context of sexual offences, will always be upon a particular specific past event, in the context of mental capacity to enter into sexual relations the test is general and issue specific. The argument before Hayden J in London Borough of Tower Hamlets v NB was presumably that the conclusion in IM does not preclude the tailoring of relevant information to accommodate the individual characteristics of the person being assessed. We heard no argument on these points and do not need to decide them on the present appeals since it was not contended by the OS that anything in Cobb J’s guideline was inapplicable because of B’s personal characteristics.