Perhaps the hardest question which the judges of the Court of Protection have had to answer in recent years is this: when should the Court decide that an adult is unable to consent to having a sexual relationship? The Court is called on to perform a very difficult balancing exercise: on the one hand to protect vulnerable adults against the consequences of potentially harmful and exploitative relationships; on the other, to protect the right that every adult should enjoy to respect for the most intimate and private parts of their lives.
The Court of Appeal, in the recent case of IM v LM & Others  EWCA Civ 37, has attempted to clarify this complex and confusing area of law.
The main question for the Court was whether capacity to consent to sex was ‘issue-specific’ or ‘person-specific’: whether a person needs to have capacity to consent to sex in general, or capacity to consent to sex with a particular proposed partner. It had been thought that there was a conflict between the approach taken by various judges of the Court of Protection, and views expressed by Baroness Hale in the related context of criminal sexual offences against adults with mental disorders which render them unable to refuse to have sex. In that context Baroness Hale had said that it was 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 (R v Cooper UKHL 42, para. 27)
The judges of the Court of Protection had, by contrast, repeatedly emphasised the practical difficulties that would arise if a person’s capacity to consent to sex had to be assessed afresh with each new partner, and perhaps even on each occasion when sex was being considered; and had been wary of imposing too demanding a test, and thereby preventing many adults with limited mental capacity from enjoying sexual relationships. This would have amounted to a massive interference with their rights to respect for their private and family lives.
The judges of the Court of Protection had also been anxious to ensure that adults who came before the Court were not required to show a higher level of understanding of sex and its consequences than is shown in the decision-making of many adults who undoubtedly have capacity to make such decisions: that is, the Court should not require people whose capacity has been questioned to demonstrate that they will approach decisions about sex with a greater level of reflection and rational analysis than other adults. The Court has recognised that many adults make decisions about sex which others would think rash or ill-advised, and has warned against the temptation to wrap adults whose cases come before the Court of Protection in “forensic cotton wool“. A number of decisions from the Court of Protection had endorsed and applied this approach: in one case, for instance, Mr Justice Mostyn held that 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 (D v AB,  EWHC 101 (COP), para. 42)
In the case of IM v LM, the Court of Appeal has attempted to resolve the apparent conflict between these two approaches; and to answer a related question, which was how far (if at all) should the courts take into account a person’s ability to “weigh or use” relevant information when making a decision about sex, bearing in mind that there is in reality often little or no such rational analysis when adults of unquestioned mental capacity make decisions about sex.
Sir Brian Leveson, in giving the judgment of the Court of Appeal, found that there was in reality no conflict between what Baroness Hale had said and the approach taken by the judges of the Court of Protection. He emphasised, however, that Baroness Hale’s comments had been in the context of a criminal prosecution for acts which had already taken place, whereas the decisions the Court of Protection is asked to make relate to acts which may occur in future. These differing contexts explained the differing approaches taken. The judges of the Court of Protection had been 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 […] 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 (paras. 75 & 76).
The Court of Appeal accepted that it would be “totally unworkable” for social workers or the Court to be asked to conduct a capacity assessment each time an adult whose capacity had been questioned wanted to have sex, and found that “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“.
The Court of Appeal also approved the guidance given by judges of the Court of Protection to the effect that the test for capacity to consent to sex should not be overly demanding: in particular, it should not become “divorced from the actual decision-making process carried out in that regard on a daily basis by persons of full capacity“, which “is largely visceral rather than cerebral, owing more to instinct and emotion than to analysis“. The ability to use or weigh relevant information must form part of the evaluation of capacity to consent to sex, alongside the ability to understand and retain information and to communicate a decision once made, but it was “unlikely to loom large“: any attempt to expand the test to require (for instance) a demonstrated understanding that any child born as a result was likely to be taken into care by the local authority would be “likely to lead to […] both paternalism and a derogation from personal autonomy“.
What does this mean in practice?
The Court of Appeal has in effect endorsed the approach which the Court of Protection has been developing to this very difficult area of law, which aims to protect the autonomy and right to respect for private life of adults with learning disabilities or other cognitive impairments. We would expect to see the Court of Protection continue to scrutinise with a great deal of care any application for a declaration that a person lacks capacity to consent to sex, and to be very reluctant to make any such declaration in the case of a person who can demonstrate an understanding of basic information about sex: what it involves physically, the fact that there may be health risks, and the fact that some forms of sex between a man and a woman can lead to pregnancy.
Local authorities will therefore need to consider what arrangements can be put in place to support decision-making by adults who do have capacity to make decisions about sex in this way, but who would nonetheless be vulnerable to exploitation and abuse.