A Local Authority v H  EWHC 49 (COP) – Read judgment
The Court of Protection has ruled that an autistic woman with an IQ of 64 does not have the mental capacity to engage in sexual relations, on the basis that she does not understand the implications and cannot effectively deploy the information she has understood into her decisions.
H is a 29 year old woman with mild learning difficulties and atypical autism. Although there is potential for improvement in her conditions, they are life-long.
She had a history of a very early and very deep degree of sexualisation. H engaged in sexual behaviour with others which she did not always consent to, one man having been convicted in 2003 of her attempted rape, and when she did consent the behaviour was still unconventional and exploitative. She had been on the child protection register and had extensive entries in her adult records with the local authority. In short, she is highly sexualised and vulnerable.
In 2009 H sought refuge in the home of a man called R who reported H’s sexual activities, vulnerability and disinhibition to the authorities. Following a domiciliary visit by a psychiatrist she was admitted to hospital. In November 2009 the admission became compulsory under section 3 of the Mental Health Act 1983. H remained in hospital until August 2011 during which time her behaviour was highly sexualised. Although attempts were made to educate her and ascertain her understanding of sexual relations, concerns over such behaviour led to proceedings being issued in the Court of Protection for a decision in respect of her capacity to consent.
Mr Justice Hedley made orders on 15th December 2011 declaring H’s incapacity in many respects, in particular in relation to her lack of capacity to consent to sexual relations. As such by the time he gave his reasons H had been placed in accommodation by the local authority involving 1:1 supervision. H was not free to leave her accommodation on any other basis, even to attend her part-time employment. Mr Justice Hedley accepted that such arrangements followed on from and depended on the court’s conclusions about capacity to consent to sexual relations. Such “considerable incursions into personal autonomy and freedom’ were dependent upon a best interests judgment as to the needs of H with its legal foundation in finding of incapacity to consent.
Having taken the view that H had the ability to communication decisions, Mr Justice Hedley went on to consider the remaining provisions in s3(1)of the Mental Capacity Act 2005 which, for the purposes of s2 of that Act, clarifies the meaning of a person being unable to make a decision for him or herself.
Regarding the question of H’s ability to understand relevant information Mr Justice Hedley first had to consider what that relevant information should be. He opined that a person must have a basic understanding of the mechanics of the physical act and an understanding that pregnancy may result. Furthermore a person must have a grasp of sexual health.
As to the extent of that understanding, Mr Justice Hedley acknowledged that information about sexual health is linked to knowledge of medical developments therefore it should suffice if a person understands that sexual relations may lead to significant ill-health and that those risks can be reduced by taking precautions.
In addition to an understanding of the physical components, Mr Justice Hedley noted that sexual acts are a “complex process’ and therefore considered the extent to which a person should have an understanding of the moral and emotional components in order to have capacity to consent“. He did not consider that a workable test could be devised as to the moral aspect of such acts given that other issues would need to be considered, it being rare to find a truly amoral human, the standard for capacity being unable to go beyond an awareness of right and wrong behaviour in any event.
Acknowledging too the inherent difficulty in concluding a workable test in respect of the emotional aspect of such acts, Mr Justice Hedley concluded that one could do no more than ask “does the person whose capacity is in question understand that they do have a choice and that they can refuse“.
In respect of H’s ability to retain information and the concerns raised in a psychiatric assessment of H over her capacity to appreciate health issues, Mr Justice Hedley was reluctant to conclude a lack of capacity. It was enough that with patient explanation and repetition she would be able to retain basic information. However in terms of being able to use and weigh that information in decision making, Mr Justice Hedley found that H would struggle to deploy such general knowledge into a specific decision making act.
Love and marriage
Whilst Mr Justice Hedley did not make a formal declaration as to H’s capacity to marry, it is interesting that he did consider a person who lacks capacity to consent to sexual relations must lack capacity to marry given that marriage requires sexual intercourse for its consummation.
It was noted that improvement and maturation was possible with H and that the matter should be kept under review. Even the freedom to make unwise decisions, a real risk in relation to sexual relations, is one that the court is required to guard and only to restrict is and when the best interests of H positively so requires it.
As was recognised by Mr Justice Hedley in his judgment, the question of consent to sexual relations is “both sensitive and difficult”
Indeed, a finding that a person does not have the capacity to consent to sexual relations not only amounts to a deprivation of their liberty but also means that any person who did engage in sexual relations with express consent would risk conviction for a serious sexual offence given that such consent would be void.
This is not the first time the Court of Protection has effectively imposed a sex ban. Last year a similar case arose concerning a 41 year old man with a low IQ. In that case the man had been accused of making lewd comments towards children.
It is illustrative of the difficulties surrounding such cases that Mr Justice Hedley was faced with reported cases which were neither binding nor capable of reconciliation. Indeed towards the outset of his judgment he remarked upon the “unsatisfactory state of affairs given the importance of the concept in question“. Although Mr Justice Hedley’s judgment provides a decision by a High Court Judge sitting in the Court of Protection, he admits that it may have added confusion to the subject:
I am conscious that all this may have deepened rather than dispelled the legal fog in which this concept of capacity to consent to sexual relations has drifted. It can only be hoped that in the not too distant future this issue may be addressed by the appellate courts.
Whilst it would be beneficial to have this important issue addressed by the Court of Appeal or Supreme Court, it is questionable how likely this is to occur in the near future. As Mr Justice Hedley acknowledged, in such cases the outcomes are generally livable ones for persons concerned therefore they are unlikely to appeal and unless a person does bring an appeal in their own specific case there is, at present, no procedure for bringing the issue before an appellate court.
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