“Wrapping a person in forensic cotton wool”

The Court of Appeal recently decided a particularly tricky legal point in  IM v LM 2014

http://www.bailii.org/ew/cases/EWCA/Civ/2014/37.html

That point being, when it comes to issues of capacity to consent to sexual intercourse, is it “Act-Specific”  (as concluded in civil cases such as A Local Authority v TZ [2013] EWHC 2322 (COP))  or is it “person specific”  (as considered in the criminal case of R v Cooper  Regina v Cooper [2009] UKHL 42, [2009] 1 WLR 1786 ,  which was a House of Lords case)

That may seem a narrow distinction, so I’ll try to explain it.

In the civil cases (usually Court of Protection) the law has usually been expressed as being an act-specific test.

Does the person lack capacity and understanding, and the three things needed to be understood are :-

1. The mechanics of the sex act
2. The possible consequence of pregnancy (and how to avoid this)
3. The possible consequence of sexually transmitted disease (and how to avoid this)

 [In the Court of Protection, where a person doesn’t understand this, they can be given education and help to see if they can develop that understanding, and it is only if that doesn’t work that a person should be declared as lacking capacity to consent to sex]

Whereas in the criminal courts, following R v Cooper, there has been the additional possibility that the person needed the ability to not only consent to sex generally, but to be able to weigh up the choice of having sex with this individual person, in this individual situation.

Cooper was a difficult case, and the facts were that  that a vulnerable person was taken to an unpleasant setting (a crack-den) and pressured into performing a sexual act.  She would have met capacity on the civil test (and thus there would have been no sexual offence in the act) but the House of Lords felt that she lacked capacity to say no, or express her resistance to the act in this specific situation and setting.

35. The complainant, an emotionally unstable woman with schizo-affective disorder, low IQ and a history of harmful use of alcohol, left a community mental health team resource centre in a distressed and agitated state, met the defendant who offered to help her. He took her to a friend’s house, gave her crack cocaine and asked her to engage in sexual activity which she did. She later said that she had consented because she had been panicky and afraid; she had both stayed and submitted because she did not want to die.

36. In relation to a charge of sexual touching of a person with mental disorder impeding choice contrary to s. 30 of the Sexual Offences Act 2003 (‘the 2003 Act’), the jury were directed that the complainant would have been unable to refuse sexual activity if she lacked the capacity to choose whether to agree to it for any reason, including an irrational fear or confusion of mind arising from mental disorder or if through her mental disorder she was unable to communicate such a choice to the defendant even though she was physically able to communicate. Quashing the conviction, the Court of Appeal (Criminal Division) agreed with the conclusion expressed by Munby J that a lack of capacity to choose to agree “cannot be person specific or, we would add, situation specific” and held that irrational fear which prevented the exercise of choice could not be equated with lack of capacity to choose and that inability to communicate referred to a physical inability.

37. The House of Lords restored the conviction. The headnote summarises the decision in this way:

“[T]he words ‘or for any other reason’ in section 30(2)(a) of the 2003 Act encompassed a wide range of circumstances in which a person’s mental disorder might make her unable to make an autonomous choice whether to agree to sexual touching even though she might have sufficient understanding of the information relevant to making it; that those circumstances could include an irrational fear preventing the free exercise of choice; that incapacity to choose could be person- and situation-specific; that section 30(2)(b) of the 2003 Act referred to an inability to communicate choice which was the result of or associated with a disorder of the mind and its meaning was not limited to a physical inability to communicate; and that, accordingly, the judge’s directions on lack of capacity and inability to communicate would be upheld.”

[There’s a very very good piece by Lucy Series over at the Small Places law blog  http://thesmallplaces.blogspot.co.uk/2014/01/framing-test-of-capacity-to-consent-to.html#more   and Lucy highlights very well that the confusion about the tests, and where the duties of public authorities lay in preventing a person from being a victim of a criminal act of ‘sexual activity with a person with a mental disorder impeding choice’  – Sexual Offences Act 2003, can sometimes end up with a person’s rights and liberty being interfered with to prevent them becoming a victim of crime, often oppressively so.  Lucy also points out fairly that there are people with capacity who might struggle with some of those questions – after all, sexual health clinics dealing with STDs aren’t solely populated by persons lacking capacity.  One of the problems with having a judicial declaration that a person lacks capacity to consent to sex is that the Court cannot substitute its consent for the persons on a best interests decision – as can happen with other issues where a person lacks capacity to make an informed decision but is showing clearly what they WANT. So once you have that declaration, there is uncertainty as to what professionals working with the family should do? Is it sufficient that they warn those seeking to enter a relationship that the person lacks capacity to consent to sex? Or do they in effect have to chaperone and deny the person the opportunity to participate in sex that they can’t consent to? These are tricky ethical topics. Lucy’s piece is a very good way to get up to speed with these dilemmas and is thought-provoking as usual ]

Back to IM… the Court of Appeal were then wrestling with the issue of whether the test should be the same in both criminal and civil cases (and in fact whether the House of Lords decision in R v Cooper might be binding on civil cases) or whether there are advantages to the test being framed differently in civil cases.

One of the issues is that simply adding the ‘person specific’ element to Court of Protection cases would involve the Court of Protection having to look in detail at prospective future sexual partners, or perhaps cases coming back every time a person who had capacity issues formed a new friendship / relationship, which would be intrusive and cumbersome.

The Court of Appeal cited with considerable approval,  Hedley J’s decision in a Court of Protection case  (underlining mine)

53. The short judgment of Hedley J in A NHS Trust v P [2013] EWHC 50 (COP) (which involved capacity to decide whether or not to continue with, or terminate, a pregnancy) is also worthy of note for its more general observations as to the proper limits of the Court of Protection’s jurisdiction (para. 10):

“Most importantly, the Act provides:

‘A person is not to be treated as unable to make a decision merely because he makes an unwise decision.’

In the field of personal relationships that is a very important qualification to the powers of the court. The plain fact is that anyone who has sat in the Family jurisdiction for as long as I have, spends the greater part of their life dealing with the consequences of unwise decisions made in personal relationships. The intention of the Act is not to dress an incapacitous person in forensic cotton wool but to allow them as far as possible to make the same mistakes that all other human beings are at liberty to make and not infrequently do.“

In short, that just because a person lacks capacity we should not as the Court of Protection presume to simply make flawless and logical decisions on their behalf – just as humans routinely make bad, emotional, or irrational decisions, so persons lacking capacity should not be wrapped up in cotton wool to rob them of these experiences.  There is a very real danger that the Court of Protection becomes too patrician and risk averse in making ‘best interests’ decisions. Sometimes it can be in a person’s best interests to make mistakes.

[Long-term readers of this blog may see echoes in Hedley J’s famous family law case

 Re L (Care threshold criteria) 2006  “Society must be willing to tolerate very diverse standards of parenting, including the eccentric, the barely adequate and the inconsistent. It follows too that children will inevitably have both very different experiences of parenting and very unequal consequences flowing from it. It means that some children will experience disadvantage and harm, whilst others flourish in atmospheres of loving security and emotional stability. These are the consequences of our fallible humanity and it is not the provenance of the State to spare children all the consequences of defective parenting. In any event, it simply could not be done. … It would be unwise to a degree to attempt an all embracing definition of significant harm. One never ceases to be surprised at the extent of complication and difficulty that human beings manage to introduce into family life.”     

Which I think is a principle long overdue in the Court of Protection, and I hope that having it cited here by the Court of Appeal might promote its widespread use in Court of Protection cases]

 What the Court of Appeal decided, eventually, was that both sets of Judges (Baroness Hale in the criminal arena, and the President (largely) in the  civil arena) were right. There are two different aspects being looked at, and it is right that there be two different tests.

75. Having already laid the ground during our summary of the case law (in particular at paragraphs 41 to 44) it is not necessary to dwell unduly on this point in which, in our view, each of the judges, including Baroness Hale, was correctly stating the law. The reason why the words used are diametrically opposed to each other arises, in our view, from the two distinct and different contexts in which the respective judgments were given. We regard the passages that we have quoted from Mostyn J in D Borough Council v B and Hedley J in A Local Authority v H as being correct in drawing a distinction between the general capacity to give or withhold consent to sexual relations, which is the necessary forward looking focus of the Court of Protection, and the person-specific, time and place specific, occasion when that capacity is actually deployed and consent is either given or withheld which is the focus of the criminal law.

76. Baroness Hale is plainly right that: ‘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’ [emphasis added]. The focus of the criminal law, in the context of sexual offences, will always be upon a particular specific past event with any issue relating to consent being evaluated in retrospect with respect to that singular event. But the fact that a person either does or does not consent to sexual activity with a particular person at a fixed point in time, or does or does not have capacity to give such consent, does not mean that it is impossible, or legally impermissible, for a court assessing capacity to make a general evaluation which is not tied down to a particular partner, time and place.

77. Going further, we accept the submission made to us to the effect that it would be totally unworkable for a local authority or the Court of Protection to conduct an assessment every time an individual over whom there was doubt about his or her capacity to consent to sexual relations showed signs of immediate interest in experiencing a sexual encounter with another person. On a pragmatic basis, if for no other reason, capacity to consent to future sexual relations can only be assessed on a general and non-specific basis.

So, for the criminal offence, a person can lack capacity even if they understand the act, the issue of pregnancy and of STDs IF they lacked capacity for whatever reason to say yes or no to this specific person in these specific circumstances.

For the Court of Protection, however, when asked to make a declaration about a person’s capacity to consent to sex, one is simply looking at the person’s understanding of those three aspects  (the mechanics of the act, pregnancy and STDS) and not at the person they might be consenting to sex with.

The Court of Appeal then go on to say that although those three issues have to be capable of being understood by a person if they are to have capacity to consent to sex, there’s a danger in trying to suggest that a person who has vulnerabilities or capacity issues needs to conduct a sort of logical root-and-branch analysis of the pros and cons of saying yes to sex before their “yes” is good enough, and importing a requirement on them to undertake an exercise that doesn’t normally play that much of a role in agreeing to make love with someone.

[Hedley J’s forensic cotton wool comes back into play here]

80. The requirement for a practical limit on what needs to be envisaged as “reasonably foreseeable consequences” derives not just from pragmatism but from the imperative that the notional decision-making process attributed to the protected person with regard to consent to sexual relations should not become divorced from the actual decision-making process carried out in that regard on a daily basis by persons of full capacity. That process, as Ms Richards observes, is largely visceral rather than cerebral, owing more to instinct and emotion than to analysis.

81. It is for that reason also that the ability to use and weigh information is unlikely to loom large in the evaluation of capacity to consent to sexual relations. It is not an irrelevant consideration; indeed (as we have emphasised) the statute mandates that it be taken into account, but the notional process of using and weighing information attributed to the protected person should not involve a refined analysis of the sort which does not typically inform the decision to consent to sexual relations made by a person of full capacity. That is the point which Munby J was seeking to make in MN at paragraph 84, which we have reproduced at paragraph 35 above. It is precisely this point at which Hedley J was driving in A NHS Trust v P when he observed that “the intention of the Act is not to dress an incapacitous person in forensic cotton wool but to allow them as far as possible to make the same mistakes that all other human beings are at liberty to make and not infrequently do”.

82. We agree. Perhaps yet another way of expressing the same point is to suggest that the information typically, and we stress typically, regarded by persons of full capacity as relevant to the decision whether to consent to sexual relations is relatively limited. The temptation to expand that field of information in an attempt to simulate more widely informed decision-making is likely to lead to what Bodey J rightly identified as both paternalism and a derogation from personal autonomy

This point is again stressed here

88. Mr Gordon also castigated as legally irrelevant to the question of capacity the judge’s observation that “The respect that a person with disabilities such as LM is entitled to must mean that she is given opportunities which may carry with them at least some levels of risk.” In our judgment the judge was there expressing in different language precisely the point espoused by Hedley J in A NHS Trust v P to the effect that the intention of the Act is to allow a protected person as far as possible to make the same mistakes as all other human beings are at liberty to make and not infrequently do.

It will be interesting to see how this develops – one possible reading of this case is that the very risk-averse approach of some local authorities to insulating a vulnerable person and curtailing their freedoms to prevent them being sexually taken advantage of might end up being toned down, and that the Court will view such things as being somewhat contrary to the Court of Appeal’s stance that vulnerable people must be allowed, as far as possible to make the same mistakes that all other human beings are free to make.