D Borough Council v AB  EWHC 101 (COP) (28 January 2011) – Read judgment
In a case which is fascinating both legally and morally, a judge in the Court of Protection has ruled that a 41-year-old man with a mild learning disability did not have the mental capacity to consent to sex and should be prevented by a local council from doing so.
The case arose when a local council, following allegations that a mentally disabled man made sexual gestures towards children, sought a court order stating that “Alan” (a false name) did not have the mental capacity to consent to sexual relations. The council ultimately wanted Alan to be banned from having sexual relations with his former house-mate and sexual partner.
The central question for the court was how to assess if a person has the mental capacity to consent to sex. The question is fraught with difficulty, as a negative answer can lead to the state controlling a person’s sexual activity, as it ultimately did in this case, but also because a prospective sexual partner could be accused of rape for having had sex without consent .
Alan has an IQ of 48, and is seriously challenged in all aspects of his mental functioning.
Dr Hall, the court’s expert medical witness, described sex as “one of the most basic human functions“. Thus, warned the judge,
the Court must tread especially carefully where an organ of the state proposes that a citizen’s ability to perform, in a non-abusive way, the sex function should be abrogated or curtailed. It involves very profound aspects of civil liberties and personal autonomy. (para 11)
But what characteristics does a person need to consent to sex? The judge drew on two analogies.
First, following Mr Justice Munby in Re E (an Alleged Patient); Sheffield City Council v E and S  EWHC 2808 (Fam), he compared sexual consent to consenting to marriage. While a sexual relationship is “not a vital ingredient of marriage it is, generally speaking, implicit in the marriage agreement.” So,
it can be seen that the test of capacity to marry must be very closely related to the test of capacity to consent to sexual relations. And it would be a very strange thing if the latter were set higher than the former, for it would be an absurd state of affairs if a person had just sufficient intelligence to consent to marriage but insufficient capacity to consent to its (generally speaking) intrinsic component of consummation. (para 15)
So how intelligent do you need to be to consent to marriage? Not very, it turns out. The test has altered little since the 19th century, when in the 1885 case of Durham v Durham, it was stated:
the contract of marriage is a very simple one, which does not require a high degree of intelligence to comprehend. It is an engagement between a man and woman to live together, and love one another as husband and wife, to the exclusion of all other.
The second analogy Mr Justice Mostyn considered to be closely related is the capacity of a girl to consent to contraception (see our recent post on the issue). In Gillick v West Norfolk and Wisbech Area Health Authority  1 FLR 224, HL the House of Lords (now the Supreme Court) held that a girl under 16 could validly consent to contraception “provided that she has sufficient understanding and intelligence to know what they involve“. As such, all a person needs is “sufficient rudimentary knowledge” to enable them to decide whether to give or withhold consent (para 22).
An important point which arose from the most recent consent cases is that capacity was act rather than partner specific. In other words, a court need not have regard to the prospective sexual partner, but rather the simple act of sex itself.
The judge went on to rule that the entering into force of the Mental Capacity Act 2005 had no bearing on the test for consent as laid out by Mr Justice Munby in a run of 3 recent cases. Moreover, he rejected Baroness Hale’s doubts in a recent House of Lords case that consent could truly be act specific. She said, in an obiter remark (that is, separate from the main judgment and therefore non-binding):
is difficult to think of an activity which is more person and situation specific than sexual relations. One does not consent to sex in general. One consents to this act of sex with this person at this time and in this place.
Ultimately, the judge concluded that the capacity to consent to sex remains act-specific and requires an understanding and awareness of:
- The mechanics of the act
- That there are health risks involved, particularly the acquisition of sexually transmitted and sexually transmissible infections
- That sex between a man and a woman may result in the woman becoming pregnant (para 43)
Alan, according to the medical expert, “had no understanding at all of heterosexual coitus” but he did understand “the mechanics of mutual masturbation and anal sex, with persons of either gender.” But as regards the latter, he did not understand the health risks involved.
Alan did not therefore have the capacity to consent and engage in sexual relations. He would have to be supervised for the time being and prevented from future sexual activity by the council.
However, it is a fundamental principle of the most recent mental health legislation that a person should not be treated as unable to make a decision unless all practicable steps to help him to do so have been taken. Therefore, the judge also ordered that the local authority provided Alan with sex education and he would be reassessed by the court after, appropriately, 9 months.
So, a fascinating, sensitive and ultimately sensible decision on an issue which lies at the boundary of law, medicine and ethics. The court made clear that sex is a fundamental right. Some would say that it is too fundamental a right to ever be taken away by the state. But in this case that right had to be balanced against legitimate concerns for public safety. Even so, the judge saw fit to exhaust all possible avenues before declaring Alan permanently unfit for sexual relations. In short, people with low enough IQs cannot always validly consent to sex, but as much as possible should be done to find out if they are able to make the decision for themselves.
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