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Sex and the limits of fluctuating capacity

When and how does the concept of fluctuating capacity apply in the context of sexual relations? This was the question confronting a Court of Protection judge, writes Alex Ruck Keene.

In Re DY [2021] EWCOP 28 DY had just turned 18; she had been diagnosed with two chromosomal duplicities, fetal alcohol spectrum disorder, and a moderate learning disability. She also had been diagnosed with developmental trauma disorder or complex post-traumatic stress disorder. The applicant local authority had had responsibility for her as a looked after child since 2012 and had ongoing responsibility for her adult care services.

The local authority initially sought authority to deprive DY of her liberty under the inherent jurisdiction of the High Court (DY at that point still being under 18). The case ultimately came before Knowles J, at which point it was common ground that DY lacked the capacity to conduct the proceedings and to make decisions about care, contact, social media use and her finances were not challenged, but had capacity to decide between residence options which were capable of meeting her assessed needs. DY was, at the time of the hearing in a “boyfriend/girlfriend” relationship with a man, AB (who did not have learning difficulties).

The issue in dispute was DY’s capacity to decide to engage in sexual relations (Knowles J noting that the Court of Appeal had ‘re-cast’ the test in JB). The positions adopted were:

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  • On behalf of the local authority, DY was able to make a capacitous decision when settled or in a familiar situation or surroundings, but might be unable to do so when unsettled or distressed;
  • On behalf of DY, that she had capacity, and that the independent expert, Dr Claudia Camden Smith, might have set the bar too high in her analysis of DY’s understanding of the distinction between consenting to sexual relations within and outside a relationship.

Knowles J summarised Dr Camden Smith’s final position (after giving oral evidence) thus at paragraph 20:

In her oral evidence, Dr Camden Smith conceded that she may have set the bar too high in terms of her analysis of DY’s understanding of the distinction between consenting to sexual relations within and outside a relationship. Whilst she accepted that DY had capacity to consent to sex, her concern was how DY would make that decision outside of a relationship. It was difficult to say what her capacity would be if her relationship with her present boyfriend were to end. When unsettled, DY may be unable to make a clear and rational decision. DY did not think the sex act was very special and had a pragmatic unemotional view of sex that could be something quite transactional rather than something particularly intimate because of her experiences growing up. Dr Camden Smith accepted that her view that DY thought sex was not special had not been specifically explored with DY but was based upon DY’s presentation. She confirmed that DY understood the mechanics of the sexual act, the risk of pregnancy, and the risk of a sexually transmitted disease. DY had told her that she had said no to sex within the context of her relationship with her boyfriend and that she had had penetrative vaginal intercourse with her boyfriend. The main confusion arose because DY could not conceive of not being in a relationship with her present boyfriend and the nature of DY’s cognitive deficit meant that it was much harder for her to analyse things in abstract terms. It would be possible to support her if she expressed a wish in future to have a relationship with someone else. There were times when, unsupported, DY would lose capacity but if she were provided with support then her capacity would not fluctuate.

At paragraph 22, Knowles J acknowledged the “real tension” between:

a desire to protect DY and a decision to permit her freedom to engage in sexual relationships which might place her at some risk. Whilst the MCA 2005 and the case law warns me against losing sight of the fundamental principle that the obligation to protect the incapacitous must be tempered by respect for the autonomy of those with mental disabilities/disorders, my personal experience of meeting DY served to highlight her vulnerability. She was eager to please and found it hard to identify any risks she might face either generally or in relation to the issue of consent to sexual relations. When coupled with an awareness of her difficult personal history, I found myself concerned about her vulnerability in general and acutely conscious of how easy it would be to exploit and harm her. My experience of DY is, I believe, shared by those who have daily contact with her and those who are responsible for her care. Their anxieties about DY shaped the local authority’s position in these proceedings and, whilst it was unfortunate that this was not initially as clearly articulated as it might have been, I do not criticise the local authority for taking the stance it did.

The parties were agreed that DY had capacity to engage in sexual relations when she was not upset or distressed, the issue in fact being the narrow – but important – one of whether she had that capacity when she was unsettled or distressed. The local authority – having been required by Knowles J to specify exactly what they sought – sought a prospective declaration to that effect or, alternatively, a declaration in identical or similar terms pursuant to the inherent jurisdiction. The Official Solicitor submitted that the local authority’s approach was wrong in principle and wrong on the facts because (a) the court was required to assess capacity on a general and non-specific basis; (b) the evidence before the court could not rebut the statutory assumption that DY had capacity on that basis; and (c) any concerns about her vulnerability or ability to assess risk could and should be addressed through provision of support and best interest decisions on care and contact.

Rejecting the approach urged upon by the local authority, Knowles J identified that:

25. The law requires that capacity to decide to engage in sexual relations should be assessed on a general non-specific basis. The local authority asserted that its formulation did not fall foul of that requirement because it related to “circumstances as opposed to a particular person”. I note however that the requirement to assess capacity on a general basis and the policy underpinning it applies to the timing and circumstances of the decision and not just to the identity of the sexual partner. The passage in IM v LMquoted above [16] makes plain that assessment of capacity to consent to sexual relations can only be on a general basis rather than tied to the specific prospect of a sexual relationship with a particular individual in specific circumstances. Likewise, Hedley J in A Local Authority v H[2012] EWHC 49 (COP) held that capacity had to be decided in isolation from any specific circumstances of sexual activity.

26. Absent from the local authority’s written submissions were any standards by which DY’s level of distress or unsettledness should be judged to determine whether or not she had capacity to engage in sexual relations. Though Mr Foster suggested in his oral submissions that plain words such as “upset”, “unsettled”and “distressed”would be sufficiently descriptive and that it might be open to the court to provide greater specificity in that regard, I found myself unpersuaded by that submission. Whilst all those particular words might describe DY’s mood at any given time, they did not adequately describe the point at which she might cease to have capacity to engage in sexual relations. As I understand the local authority’s case, that would seem to be a matter of degree. The difficulty with Mr Foster’s submission was that, on each occasion that DY appeared to be unsettled or distressed and was proposing or had the potential to engage in sexual relations, the prospective declaration sought would require an assessment of whether DY was sufficiently distressed or unsettled so as to have lost capacity to engage in sexual relations. That would give wide discretion to individual professionals without any check to ensure that DY’s autonomy was respected, and that decisions were not being driven by the desire to protect her.

27. Whilst I acknowledge that prospective declarations of incapacity are permissible pursuant to s 15 MCA 2005, these are exceptions to the general approach. They may be appropriate in cases where there is clear evidence of the circumstances in which a person would or may lack capacity in the future and where there were practical reasons why a declaration or declarations should be made in advance. Neither of those conditions applied in this case. Here, the distress and unsettledness were not well defined and, even if DY did experience such emotions, it could not be assumed that this would impair her decision-making ability without an analysis of the particular facts pertaining at the time.

Knowles J was clear that she had heard no evidence that would justify an order in the terms sought:

28. Dr Camden Smith’s written report did not assert that DY’s capacity fluctuated. Although she conceded that, if DY’s relationship with AB ended, it might be difficult to say what her capacity was in those circumstances and that, when unsettled, DY may be unable to make a clear and rational decision, Dr Camden Smith did not say that DY would lack capacity applying the relevant statutory criteria. Even if DY’s capacity were to fluctuate as was suggested by Mr Foster in questioning, Dr Camden Smith was clear that, if DY were provided with support, she did not think her capacity on this issue would fluctuate. DY’s social worker agreed with me that it was very difficult to tease apart how DY might respond to someone other than AB and conceded that she was speculating about what might happen in other situations. At its highest, the local authority’s concern that DY may lack capacity to make decisions about engaging in sexual relations when distressed or unsettled was based on speculation as to how DY would respond in circumstances which may not even arise if care and contact were appropriately managed.

The local authority identified a wide range of generic factors about DY’s presentation and vulnerabilities. Many of them related to DY’s difficulties in assessing the risk that may be posed by others and her awareness of her own particular vulnerabilities. However, Knowles J considered that they were in fact more directed to an assessment of DY’s capacity to make decisions about those with whom she had contact. “None of them supported a conclusion that DY lacked capacity to make decisions about engaging in sexual relations generally or when she was distressed or unsettled” (paragraph 29).

Knowles J noted that, although the Court of Appeal had used the word “may” in relation to the information required by its reformulated test in JB, following submissions from the parties, she had “tempered her enthusiasm” to add to the list of relevant information. On this basis, and:

33. Standing back and considering the issue in the round, I am satisfied that, at the time she was assessed, DY understood and was able to weigh all relevant information and had the capacity to decide to engage in sexual relations on a general non-specific basis. There was no dispute that she had the capacity to make decisions about sexual relations with her boyfriend, the only person with whom there was any current prospect of having sexual relations. The evidence of both Dr Camden Smith and YZ, DY’s social worker, as to how she might respond in other circumstances was uncertain and speculative. She should not be assessed as lacking capacity unless all practicable steps have been taken to support her to make the decision without success, that included putting in place a package of support to limit and/or mitigate the effect of any periods of distress or unsettledness. The local authority’s concerns about the risk of abuse and exploitation could be addressed through an appropriate package of care and contact arrangements, decided in DY’s best interests. The prospective declaration proposed by the local authority was unworkable and imprecise.

The local authority had submitted that it would be “unconscionable if the court, recognising [DY’s] vulnerability, held itself unable to protect her due to her situation not fitting within the framework of the MCA 2005.”  Whilst Knowles J understood the instincts prompting that submission, she noted that: “DY’s care would be supported within the framework of the MCA 2005 as it is agreed by the parties, and I accept, that DY lacks capacity to make decisions about her care and contact with others. In those circumstances, the MCA 2005 provides an appropriate legal framework for a care package which protects DY from abuse and exploitation. I see no justification for invoking the inherent jurisdiction since it affords no greater scope for making a declaration of incapacity on grounds of a disturbance of the functioning of the mind than exists under the MCA 2005” (paragraph 34).

Knowles J therefore made a final declaration that DY had capacity to decide to engage in sexual relations, and directed the local authority “to prepare a care plan that will facilitate this in a way that reduces risk and supports DY to make informed decisions.”


Starting at the end, it was on one view not open to Knowles J to direct the local authority to prepare a care plan to facilitate DY’s ability to engage in sexual relations, not least in light of her finding that DY had capacity to make that decision. It is, however, entirely understandable why she sought to do so, not least to guide a local authority who were – again for understandable reasons – concerned as to navigate the line between protection and empowerment.

Whilst I will limit my comments in relation to this case because of my involvement in the forthcoming appeal to the Supreme Court in the JB case, it might be thought on one view that DY’s case could have been resolved much more simply on the basis of a person-specific test: i.e. by simply being allowed to ask whether DY had capacity to decide to engage in sexual relations with her boyfriend – to which the answer would clearly be yes (whether, in respect of any particular act between them, the act was consensual on both of their parts would be a different issue, falling to be considered, if at all, through the prism of the criminal law as would be the case with anyone). The question of whether DY had capacity to decide to engage in sexual relations with anyone else would simply not fall to be considered by the court as it was not a live issue, and the court could properly decline to determine it (see, by analogy, Re SB [2020] EWCOP 43).

The case also clearly indicates the limits to the courts’ increasing willingness to grapple with the concept of fluctuating capacity, as with (in a different context) the case of CDM, DY’s situation could not sensibly be considered through this prism, and Knowles J was plainly correct to conclude that she had to determine either that DY had the capacity to make the material decision or she did not.

Alex Ruck Keene is a barrister at 39 Essex Chambers. This article first appeared on his Mental Capacity Law and Policy blog.

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