Capacity for sex and marriage

By Claire Martin and Celia Kitzinger, 22^nd January 2021

Back in October 2020, a hearing before Mr Justice Poole (COP 13551368) was adjourned, part-heard, after inadequate reports from the expert witness, Dr Quinn.  He reported that the person at the centre of the case (she’s “AG” in the judgment and we called her “Barbara” in our previous blog) lacked the mental capacity to make any of the decisions before the court – including the decision to engage in sex, and the decision to marry.  His evidence collapsed under cross-examination.  The parties agreed to instruct a new expert and listed a new hearing for 20^th January 2021.  This is a report of that hearing.  

The most salient finding of this new hearing (also before Mr Justice Poole) was that Barbara, who had previously been found under s. 48 of the Mental Capacity Act 2005 to lack capacity in relation to both sex and marriage is now deemed to have capacity to engage in sex, but not to have capacity to marry.

The effect of the judgment is that the local authority must withdraw the Safeguarding Adults protection plan that has been in place to prevent Barbara from having an intimate relationship with her partner (another resident in her care home) ever since proceedings began in January 2020.   This plan has meant that the couple has been subject to supervision and monitoring.  She has been prevented from entering his room and from spending time with him other than in public places. 

At the hearing in October 2020, counsel for Barbara’s partner described it as a “troubling feature” of the hearing that it was starting some ten months after the initial application to the court.  By now, with the new court judgment of 20 January 2021, this – as it turns out unjustified – interference with the couple’s Article 8 rights to private and family life has been in place for more than a year.  

For the judge, the moral of the case is spelled out in the opening sentence of the judgment: 

 “This case demonstrates how a thorough assessment and well-reasoned expert report on capacity can assist the resolution of difficult issues, saving time, resources, and anguish.”  (para.1, A -v- AG and CI (No. 2))

As observers, we recognise the importance of good expert reports and the cost – both human and financial – of the delay caused by an inadequate report. But this is not the most salient ‘take home’ message for us.  

We are both dismayed that Barbara has been actively prevented from engaging in an intimate relationship with her partner for more than a year and we are concerned to understand how this interference with her human rights was possible for such a protracted period. 

At the hearings we observed, the applicant Local Authority was represented by Brett Davies; Barbara was represented by Joseph O’Brien (via her Accredited Legal Representative);  Barbara’s partner (we call him “John” – he is CI in the judgment)  was represented by Ben McCormack. 

Background

The court had been asked to determine Barbara’s capacity to make decisions about the conduct of litigation, her place of residence, her care and support, her contact with other people, the management of her property, engagement in sexual relations, and marriage.  

The Trust’s application to court was occasioned by safeguarding concerns, after Barbara – who has frontal lobe dementia – had formed an intimate relationship with a man she met in the care home.  She’d moved from her bungalow into a care home in July 2019 after finding it increasingly difficult to cope at home.  Shortly afterwards, she struck up a relationship with John, who had moved to the care home following a stroke.  He is now a wheelchair user, and described as cognitively intact. Towards the end of 2019, the couple were seen kissing and holding hands in communal areas and were several times discovered lying down together in bed.   Barbara said she wanted to marry John, and to leave the care home and live with him in the community. 

If Barbara lacks capacity to consent to sex, then any sexual involvement she has with John is legally assault or rape: the police visited John and explained this to him.  Barbara (and John) were supervised by staff in the care home because of the risk to John of prosecution under s.30 of the Sexual Offences Act 2003.  At the first hearing (in January 2020), an interim declaration was made that Barbara lacked capacity for all the decisions before the court, including capacity to consent to sex, and the couple’s contact has been circumscribed ever since.

At the second hearing (October 2020), the expert evidence from Dr Patrick Quinn was that she lacked capacity to make any of these decisions – including decisions about sex and marriage.  However, the court did not accept this because he’d provided insufficient information as to the process leading to his conclusions and how they had been reached.  

In a clear and helpful interim judgment, Mr Justice Poole lays out some key issues for experts to bear in mind in future in providing the Court of Protection with written reports about a person’s capacity (para. 28 of the interim judgment) – essential reading for expert witnesses.  

New evidence in court

The new expert appointed, consultant psychiatrist Dr Laurence Mynors-Wallis, produced a report that is “detailed”, “clear” and “properly evidenced”: “a first-class report”.  Brett Davis, counsel for John described it as “a very impressive and careful document”.  

Like the previous expert, Dr Mynors-Wallis found that Barbara lacks capacity to conduct legal proceedings and to make decisions as to her residence, care, support, property and affairs, and marriage.  

Unlike the previous expert, he concluded that she does have the capacity to decide with whom she has contact and to engage in sexual relations.  

“The evidence from Dr Mynors-Wallis establishes quite clearly that, notwithstanding previous opinions given to the court on this issue, AG does have capacity to make decisions about sexual relations.” (para. 26, A -v- AG and CI (No. 2)

Dr Mynors-Wallis also found that Barbara lacks capacity to marry.  

AG was not consistent in her account of her own marriage status (I am told that she remains married) but Dr Mynors-Wallis says that he was satisfied that she demonstrated a basic understanding of the marriage contract. What he considered was absent was any ability to understand, retain, weigh or use more complex information relevant to decisions about marriage and divorce, such as the financial implications. (para 18, A -v- AG and CI (No. 2)

Understanding the financial implications of marriage was first mentioned as part of the requisite understanding for having the capacity to marry in London Borough of Southwark v KA and Others [2016] EWCOP 20.

“P must understand the duties and responsibilities that normally attach to marriage, including that there may be financial consequences and that spouses have a particular status and connection with regard to each other.”

But the judge in that case (Mrs Justice Parker) considered that the understanding need only be rudimentary, and in a later judgment, Mr Justice Mostyn considered that:

 “it would be inappropriate and, indeed, arguably dangerous to introduce into the test for capacity to marry a requirement that there should be anything more than a knowledge that divorce may bring about a financial claim.”(para 30, Mundell v (Name 1) [2019] EWCOP 50])

In considering Barbara’s case, Mr Justice Poole said that “In the light of this guidance, it is important not to apply too stringent a test for capacity to make decisions about marriage or divorce” (para 21) but finds that Barbara’s “view of her status as a married person is not at all grounded in reality.”

“she has fantastical beliefs that the act of getting married will result in her living independently in the community, free her of the need for care, and enable her to work. This is what married life was like for her in the past, and her impairments due to her frontal lobe dementia result in an inability to understand that marriage in the future will not return her to that same level of functioning and independence. AG is unable to retain information about her present married status – she does not consistently recall whether she is married, divorced or widowed. She cannot weigh or use relevant information to allow her to consider the advantages and disadvantages of marriage so as to make a decision about marriage” (para.23, A -v- AG and CI (No. 2)

The care home will now follow the Care Quality Commission’s guidance on “Relationships and Sexuality in Adult Social Care Services.” It emphasises that Providers need to understand the importance of enabling people to manage their sexuality needs” and to “recognise and support these needs, so that they do not risk discriminating against people or breaching their human rights.

At the next hearing (in April 2021) best interests decisions will be made about where Barbara might live. The Trust is reconsidering the options that might be available for her care and residence with a view to whether it might be possible for Barbara and John to live together in the community if they wish to do so (for example in an extra care supported housing scheme).  

At the end of the judgment Mr Justice Poole says:  

“It is regrettable that delay in resolving her case has prevented AG and CI from sharing intimacy when, as the court has now found, AG does have capacity to engage in sexual relations.” (para. 25)

Comment

There’s a human cost to this story which, for us, is not adequately captured by a simple expression of “regret” at the end of a judgment in which the court effectively congratulates itself on how it managed the problem of an inadequate expert witness report.

It’s taken more than a year – from 13 January 2020 when the case first came to court until 22 January 2021, when final orders were made – to establish that Barbara has the capacity to make her own decisions about who she spends time with and whether or not to have sexual relations.  During that year, Barbara and John have been prevented from developing an intimate relationship.

At the end of the previous court hearing, back in October, one of us blogged: 

“Since the end of 2019 Barbara has been (consistently) expressing, verbally and through her actions, wishes to live and have sexual relations with the companion she has met in the care home.   She has been waiting almost a year now for these issues about her life to be determined. […]  So, over all I felt very sad for Barbara, and for those caring for her who will need to walk the tightrope of her care before the case is heard again in January 2021. We must not forget that this is a woman in her 60s, whose dementia is becoming worse and time is of the essence for her to potentially be allowed to live a life she wants to live.” (Claire Martin)

The effect of this delay has been to rob Barbara – for a whole year – of her right to determine for herself whether she spends time with John, and whether or not she has a sexual relationship with him.

Celia

It’s hard to understand – as mere observers – how this situation was allowed to happen and (therefore) how it can be prevented in future.  The care home acted quickly: after discovering that Barbara and John were sexually involved in December 2019, the application that she lacked capacity for contact and sex was granted in January as an interim declaration under s. 48 of the Mental Capacity Act (MCA) 2005 are made where “there is reason to believe that P lacks capacity in relation to the matter” and “it is in P’s best interests to make the order, or give the directions, without delay”.  The expert instructed as a consequence of that hearing produced a report in February 2020.  There were presumably some problems with this report as he was asked to report again, and produced a more detailed report in May 2020.  This involved a three month delay that could perhaps have been avoided with clearer instructions or an expert more able to engage with Barbara: it may also be that the public health emergency posed some problems that led to delay in reassessing her. Then in June 2020 the test for capacity for sex changed (with the Court of Appeal decision in Re JB) necessitating a further assessment.  It can’t have been easy to find a slot for a three day hearing, and the court summer vacation period must have intervened, meaning that the final hearing got pushed back to October 2020 – nine months after the original s. 48 decision about Barbara’s capacity had been made.  This already seems too long a wait on a matter that touches so directly on fundamental human rights.  The additional 3-month delay due to the inadequacy of the expert report compounded the problem. 

From what I can see (and the participants in this story, who have much more information of course, may know differently) there are no obvious points at which someone could have said something to the effect of “we can’t let this situation continue – we need an urgent hearing NOW!”  But with benefit of hindsight that’s what should surely have happened.  

There is a presumption of capacity by law, but once this has been displaced (by a s. 49 decision) it may be difficult to reinstate it. The impression we were both left with from the October 2020 hearing was that Barbara almost certainly lacked capacity to make decisions about sex (and everything else), but that the court was being punctilious in ensuring that reliable evidence supported this conclusion.  We expected (as, we suspect, did the lawyers) that when the hearing resumed in January 2021 we would find Barbara’s lack of capacity for sex properly evidenced – especially since she has a degenerative condition and had been seen as likely to lack capacity for almost a year.   

It is only with the new compelling evidence about Barbara’s capacity over the last year to make her own decisions about contact and sex that it feels dreadful that her rights have been trampled over for so long. There is a strong message for all of us here not too readily to allow the diagnosis of dementia to override the presumption of capacity, even when there is “reason to believe (s. 48) that a person lacks the relevant capacity.

I also have some concerns about the finding that Barbara lacks capacity to decide to marry. This was the issue flagged up by the expert witness as the most difficult for him to resolve and the challenges it involved are laid out in the judgment (paras. 18-23). I can appreciate the problems.  On the other hand, I bring to mind the very many conversations I have had with friends and colleagues – not deemed to lack capacity – on the matter about why they do (or do not) want to get married.  For most of those who want to marry,  it is  – as for Barbara – simply “because they love each other” (para 22) – and my observations about the financial implications are treated as entirely irrelevant.  Some of my feminist friends who decide against marriage have “fantastical” (para. 23) ideas that marriage requires a woman to promise to obey her husband, or that she will be automatically subjugated to her husband in a way that she would not in a different-sex civil partnership (which is legally structurally equivalent).  Some who decide in favour of marriage do so in part because they believe that this will mean their spouse will be able to make health care decisions for them if they cannot – indeed, this false belief was frequently used to justify same-sex marriage campaigning in England.  There’s a large body of sociological and psychological literature on ‘the meaning of marriage’ for people.  If the court is to avoid setting a higher bar for people with impairments of mind or brain than for everyone else, this literature should perhaps inform the court in deciding what information a person needs to be able to understand, retain and weigh in displaying capacity to make decisions about marriage. 

Claire

This judgment has stark lessons and wide ramifications for health, social and care professionals.  Barbara was judged to lack capacity for conducting litigation, making decisions about residence, care and support needs, property and financial affairs and whether to marry or divorce. She was judged to have capacity to decide with whom she has contact and, most importantly, to make decisions to engage in sexual relations. At the same time, counsel for the LA intends that the care setting would ‘keep a record and review regularly’ any concerns e.g. emotional manipulation. Of course, Barbara has a degenerative condition (frontal lobe dementia), so her needs and abilities will change, and it did make me wonder where that intention will go if a best interests decision is made that she and John can move into their own accommodation, even if it is a sheltered living setting. 

I think it is right that we as health and care professionals need to work with these most complex dilemmas and grey areas.  Being clear about how and why we support P in the way we do is about being able to live with some amount of uncertainty and discomfort. The reward (for them, and us) is that people might live lives that feel fulfilling and vibrant. If we don’t do this, we keep people so ‘safe’ that they have no life at all. 

In practice, in our experience as an older people’s psychology service , sex is not frequently facilitated in care settings for people with dementia in a robust and person-centred way, consistent with the Care Quality Commission’s guidance on “Relationships and Sexuality in Adult Social Care Services.  It is a very difficult area for staff and health care professionals for many reasons, including the complex question of capacity to consent, and the subsequent possibility of sexual relations being deemed assault (as in this case with Barbara and John). 

Speaking to two psychologist colleagues, both of whom specialise in and have extensive experience of, working in care homes and on wards with people with dementia, we reflected together that it is often the case that any sexual expression in dementia is typically seen as ‘disinhibition’ or ‘challenging behaviour’ and stopped or restricted immediately. 

One colleague said that sexual intimacy in dementia care settings ‘just doesn’t happen’. Friendship is more often allowed (holding hands) but even this can arouse strong responses from staff in the care setting.  One colleague described a recent case, reported to her, in a care home where two people formed a friendship and were holding hands. This was seen as risky by care staff and they were separated – one of them was moved to a different floor of the home. My colleague was told that the couple ‘lacked capacity’. The home had made this assumption because of their dementia. 

It is important to understand what might underlie responses like these.

Fear of repercussions for the home can be an unspoken concern.  ‘What would the family think?’ is very common response when residents move towards forming new friendships or relationships with other residents. Being faced with upset or angry relatives who would prefer their loved one not to form new (and especially sexual) relationships can be difficult to manage. It might feel a better solution to divert or quietly restrict such behaviour.

There might be an understandable lack of confidence for staff in care settings to deal with complexity in the area of dementia, capacity and sexual intimacy. Sometimes care settings are faced with making speedy decisions. The care home in this case seems to have acted really responsibly and quickly in asking for help to determine Barbara’s capacity – it was the judicial system that was slow to resolve this issue for the home, and for Barbara and John. 

A less openly acknowledged (or owned up to) obstacle is people’s beliefs about older people and sex, revealing entrenched ageism and calcified social attitudes. One colleague said ‘people are often appalled at the idea of older people having sex in my experience – almost to the point of disgust’. This is likely to be amplified in relation to older people with dementia and will translate into care practice and often be hidden behind safeguarding (which of course, is also important). 

Another, wider, issue is risk. Risk is inherent in everything that we as humans do. It is embedded in any fulfilling and vibrant life. However, we have become much, much more risk averse in services. Fear of blame is real, and often not unreasonable. Making ‘positively risky’ decisions in complex cases can be hard, especially if the unintended costs might be high (e.g. criminal prosecution for assault; investigation into a home’s safeguarding processes). At the same time, it is entirely consistent to argue that safeguarding might be evoked as a way of smothering and hiding our own discomfort and disgust. 

One colleague reflected that gender can be a determinant of responses to expressions of sexuality in dementia care. Men might be dealt with more ‘robustly’ than women who show sexual desire – they might be seen as more sexually predatory (which of course statistically might be correct, and clearly is more common), though it can be a default response, rather than countenancing the possibility that the person is expressing a genuine need. 

The need for attachment, relationship and intimacy is normal; though such expressions of sexuality and intimacy might not be understood as such, and can be interpreted as a function of the impairment of the brain, and therefore ‘disinhibition’ or ‘challenging behaviour’ to be stopped, rather than a genuine human need. So, all of these factors demonstrate how hard it must be for care settings, and for the wider health and social care system, to navigate complex issues of sexual intimacy in dementia. 

It is common that sexual intimacy is restricted for people, often with the good intention of protecting them from harm when there is a question of whether they know what they are doing. However, this judgment makes it clear that we must live and work with our discomfort. We must look at ourselves and question whether it is our views and beliefs that are informing our decision to restrict a person’s right to have intimacy with another – one of the most fundamental attachment needs for us all. 

 I struggled a bit with this judgment on the issue of capacity to decide to marry and divorce. Counsel for Barbara very clearly and helpfully explained the reasoning of the expert witness for his assessment that Barbara lacks capacity for this decision. He noted that Barbara ‘has a good understanding of marriage [but]… struggled to weigh the advantages and disadvantages’. This is what led to the decision that she lacked capacity to decide to marry or divorce. The key issue, as proposed by counsel, was that we ‘cannot make silo decisions – the concept of marriage involves the concept of mutual obligation. [Barbara] doesn’t understand her financial or care needs but still understands the concept of marriage’. This made sense to me: Barbara understands what marriage is and told the expert witness it is about love, but she doesn’t understand that people’s finances become intertwined and the potential ramifications of that. 

However, he went on to say that ‘context is everything’ and that ‘sex and marriage for {Barbara] are not as clear cut as the local authority says’. Barbara expressed a view to the expert witness that sex is only acceptable within marriage. Counsel said ‘The question of marriage might come to the forefront. It very well could do – if her views on sex linked to marriage are borne out then it could be an issue’.  I think I am struggling with this because although the Mental Capacity Act 2005 does structurally invite a ‘silo’ approach to decisions, nuance was expertly applied to assessing whether Barbara understood that marriage also had implications for finances – and found that she did not. One decision therefore reasonably has a bearing on another. However, her understanding of marriage as far as it relates to sex is that the two are inextricably linked – so, not in separate silos.

If Barbara and John want to marry, and if Barbara’s failure to appreciate the financial implications of divorce and marriage is a significant barrier to her being deemed to have capacity in this area, then I wonder whether an arrangement could be made to separate out the financial ramifications? Since she lacks capacity to make her own decisions about property and finance, someone else is anyway now responsible for doing this on her behalf.  Perhaps that person could also work on a pre-nuptial agreement in Barbara’s best interests? 

I found Barbara’s case fascinating from a legal and ethical perspective and heart-breakingly sad for her and John, having lived the past year restricted from close contact with one another – especially in a pandemic when we have all felt scared and under threat, and have needed to feel loved. 

Final reflections

This case does show, as Mr Justice Poole said, “how a thorough assessment and well-reasoned expert report on capacity can assist the resolution of difficult issues, saving time, resources, and anguish.”  (para.1, A -v- AG and CI (No. 2)). But it also shows that the use of interim decisions about capacity – which can extend, as in this case, for over a year before a proper capacity assessment is before the court – can lead to the violation of a person’s basic human rights. In this case, Barbara, who has a degenerative condition – so that time is of the essence for decision-making – has lost a whole year (during pandemic lockdown) of intimacy of any kind with her chosen partner. A year that she can never get back. And there is, as far as we know, no kind of reparation for her – indeed, it’s hard to know what could begin adequately to compensate her loss. For us, it just feels that the “regret” expressed by the judge isn’t enough. We would have liked to see some more robust concern expressed about the length of time this process took and some consideration about how to avoid this in future. Perhaps the judiciary feels weary and resigned to the turgid pace of justice and the lack of sufficient resources, such that it feels pointless to address these issues? But we think it’s up to the judge to reflect on and speak to the fact that Barbara was in a judicial system that – albeit inadvertently – breached her right to intimacy with her partner for a very long time.

Note: There’s a report of this case in the Daily Mail, here.

Claire Martin is Consultant Clinical Psychologist. Cumbria, Northumberland, Tyne and Wear NHS Foundation Trust, Older People’s Clinical Psychology Department, Gateshead. She tweets @DocCMartin

Celia Kitzinger is co-director (with Gillian Loomes-Quinn) of the Open Justice Court of Protection Project. She tweets @KitzingerCelia

Acknowledgement: Claire would like to thank Dr Alan Howarth (Consultant Clinical Psychologist) and Dr Kate Andrews (Senior Counselling Psychologist) for helpful discussions that informed this post.

Photo by freestocks on Unsplash