You can refuse
The Court of Protection team at 39 Essex Chambers examine the latest revisiting by a judge of the issue of an individual's capacity to consent to sexual relations.
The judgment in LB Tower Hamlets v TB and ors [2014] EWCOP 53 (Mostyn J) is the latest in long-running proceedings concerning the best interests of a Bangladeshi woman with a moderate learning disability. In 2010 and 2011, orders were made in the family court providing for the permanent adoption of TB’s four children. In those proceedings, TB’s husband had been found to have physically assaulted TB.
In 2012, the Court of Protection made interim declarations that it was in TB’s best interests to live in supported accommodation rather than with her husband and his (polygamous) second wife, and their child. TB’s placement did not prove successful – much as in the property she lived in with her husband, she spent hours lying on the sofa watching TV. Supervised contact took place between TB and her husband, which the court found was generally worthwhile for TB, although her husband had attempted to induce her to say she wanted to return to live with him.
The court held that it was not in TB’s best interests to return to live with her husband, and directed the local authority to use its best endeavours to find an alternative placement for her, in line with the recommendations of the court-appointed expert, or, if that was not possible, to replace TB’s care team with people able to promote TB’s social life and integration into the community.
The court also made a final declaration that notwithstanding TB’s previous pregnancies, she lacked capacity to consent to sex. In doing so, Mostyn J reviewed the authorities addressing what the relevant information is that must be understood, retained and used to make a decision whether to consent to sexual relations.
Mostyn J concluded that understanding the risk of pregnancy was not a separate issue, as previous authorities had stated, but that it formed part of understanding “that there are health risks involved.” He did not appear to accept an argument that since TB had an IUD fitted (the same having previously been authorised by the court), there was no need for her to understand the risk of pregnancy.
Mostyn J further rejected the analysis of the Official Solicitor that the ability to say yes or no to sex is not a concept that must be understood as part of the relevant information, preferring the approach of Hedley J in Re H [2012] EWHC 49 (COP), who had held that a relevant question was “does the person whose capacity is in question understand that they do have a choice and that they can refuse?”
Thus, Mostyn J held, the relevant information was:
- the mechanics of the act; and
- that there are health risks involved; and
- that he or she has a choice and can refuse.
In adopting this approach, Mostyn J both made clear that he had been persuaded that the more nuanced approach adopted by Hedley in Re H was to be preferred to the approach that he himself had adopted in Re AB, and that this more nuanced approach aligned the civil and criminal law (see in this regard R v Azanzi).
Mostyn J also took the opportunity to comment on his decision in Rochdale Metropolitan Borough Council v KW [2014] EWCOP 45, saying that “[t]he state is obliged to secure the human dignity of the disabled by recognising that ‘their situation is significantly different from that of the able-bodied.’ Thus measures should be taken “to ameliorate and compensate for those disabilities,” and that characterising those measures as state detention was “unreal”.
Comment
There are three interesting features of this case.
First, the court made a negative best interests declaration – that it was not in TB’s best interests to live with her husband – rather than a positive choice between two identified alternatives. The court felt able to rule out the option of a return home, even though the current living arrangements for TB were not ideal, and to direct the local authority to improve them. It will be interesting to see how that approach fits into what the Court of Appeal says in the ACCG appeal in due course.
Secondly, there is now yet another statement about what the information relevant to a decision about sexual relations is. Although a consensus seems to be emerging, difficult questions such as what the extent of knowledge about health risks must be, and whether a risk that does not exist in the particular factual scenario is relevant, remain.
Thirdly, the judge’s further comments on the vexed issue of deprivation of liberty explain in more detail the difficulty many people have in seeing how the intensive support and care that a person requires to meet their needs could engage Article 5 ECHR. With the abrupt end to the Rochdale case, these questions will remain unanswered by the higher courts at this stage.
This article was written by the Court of Protection team at 39 Essex Chambers.