The judgment in Re NB  EWCOP 17 has just appeared on Bailli of a hearing on 7 May 2019 at which Hayden J considered the position of a married couple where doubts had been raised as to the wife’s capacity to sexual relations. There had been a previous directions hearing in March 2019 following which there had been extensive press coverage which centred around remarks reported of Hayden J as to a husband’s “right to sex” with his wife. Hayden J observed that it appeared that in consequence of the publicity the husband had become frightened, had gained the impression (apparently in consequence of poor advice given by a local solicitor) that he was likely to be sent to prison, had left the flat he shared with his wife, and had disengaged with the proceedings.
The hearing before Hayden J therefore only involved Counsel for the applicant local authority and Counsel for the Official Solicitor as the wife’s litigation friend. Hayden J’s recitation of the arguments, his concerns, and his proposed course of action was as follows:
12. During the course of today, I have listened to detailed, helpful and very interactive submissions on behalf of the Official Solicitor and the Local Authority, considering the case law and seeking to evaluate the reach and ambit of the relevant test. Mr Bagchi submits that the test articulated by Sir Brian Leveson in Re: M (an Adult) (Capacity: Consent to Sexual Relations)  EWCA Civ 37 should properly be construed as a general test in which the Court of Protection has, prospectively, to assess an individual’s capacity to have a sexual relationship with any other individual. In other words, he submits it is a ‘general’ or ‘issue-specific’ test rather than a partner-specific one. If Mr Bagchi is correct, the difficulty that presents in this case is that there is only one individual with whom it is really contemplated that NB is likely to have a sexual relationship i.e. her husband of 27 years. It seems entirely artificial therefore to be assessing her capacity in general terms when the reality is entirely specific.
13. On the facts of the case, for example, it may be that her lack of understanding of sexually transmitted disease and pregnancy may not serve to vitiate her consent to sex with her husband. There is no reason to suggest that AU has had sexual relations outside his marriage. There is no history of sexually transmitted disease. There is one child who, as I have said, is 20 years old.
14. As I said on the last occasion, these issues are integral to the couple’s basic human rights. There is a crucial social, ethical and moral principle in focus. It is important that the relevant test is not framed in such a restrictive way that it serves to discriminate against those with disabilities, in particular those with low intelligence or border line capacity. See: Re: E; Sheffield City Council v E and S  1 FLR 965.
15. Mr Bagchi has accepted that if a person-specific test were applied here then the outcome, in terms of assessment of NB’s capacity may be different. However, he says for the law to impose a person-specific test would be to render a state of uncertainty of outcome in every case, which is, he submits, essentially inimical to the effective administration of the Court of Protection in these cases. It seems to me, the consequence of this approach may be to give insufficient priority to the individual in a legislative framework which prioritises the vulnerable.
16. In the context of the criminal law, it is entirely clear that consent is and can only ever be a person or partner-specific test. As Baroness Hale said in R v Cooper  1 WLR 1786 ‘it is difficult to think of an activity which is more person and situation specific than sexual relations.’ I am bound to say I find this to be a very forceful point. Mr Bagchi submits that the test for consent in the Criminal Law and that which applies in the Court of Protection is different. In this Mr Bagchi is plainly right. However, as I have indicated in exchanges with counsel, I do not necessarily consider that the applicable test in the Court of Protection necessarily excludes the ‘person specific approach’.
17. I am reserving my 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. I have delivered this short interim ex-tempore Judgment in order that AU may receive a copy of it and better understand the focus of the Court’s enquiry. I also want to afford him the opportunity to make submissions, through counsel, if he wishes to do so.
As Hayden J seeks to navigate the way through, it is of importance to note that the Court of Appeal is considering today (14 May) and tomorrow the case of B (Capacity: Social Media: Care and Contact)  EWCOP 3, including consideration of the judge’s finding in relation to B’s capacity in relation to sex, along with residence and access to social media.