Capacity to engage in sex: Putting the MCA’s foundational values to protect and empower to the test

By Samantha Williamson, 18th March 2022

Most of us couldn’t begin to imagine being told (as adults) that we are prohibited from spending private time with our chosen partner – and that we cannot be allowed to have sex with them.

That’s been the case for 19-year-old T and her 25-year-old boyfriend since 19th November 2021.  

For four months now, there’s been a court order in place restricting sexual contact between T and her boyfriend.

The court has determined, on an interim basis, that T (who has a learning disability) lacks capacity to engage in sexual relations (and also lacks capacity to make decisions about contraception, internet use, and social media). Support and education for T is ongoing to maximise her capacity in these areas. 

The local authority had made an application to adjourn a hearing before a Tier 2 judge in mid-February 2022 and the judge vacated the hearing but considered the interim declarations required oversight by a High Court Judge.  And so, the case came before Roberts J on 11 March 2022.

I was observing this hearing as a mature law student undergoing a career change and wishing to translate academic exposure to the Court of Protection to real life practical experience. 

The hearing

The case (COP 13843692 Re T) was heard at 10.30am on Friday 11th March 2022, before Mrs Justice Roberts, sitting at the Royal Courts of Justice as a Tier 3 judge in the Court of Protection.  The hearing was held over MS Teams.

The applicant, a county council, was represented by Mr Pravid Fernando[1]

The first respondent was T, represented by Mr Rhys Hadden (instructed by her litigation friend, the Official Solicitor). Instead of a position statement, Mr Hadden had prepared a draft order to assist the court.  

Second respondent was the county council Partnership NHS Trust, represented by Mr Jeremy Roussak.

T was not in attendance but her father was –  to the pleasure of the Judge who observed “I’m delighted you’re able to join us today.”

Roberts J made very clear at the outset that she had read all the bundle, was familiar with the case history, and had received and read all the communications that had been involved. This instilled confidence both in me as an observer and, hopefully, in T’s father.

The judge acknowledged the presence of observers by name – I admit it felt a little exposing but I did feel welcome.  She raised the matter of the transparency orders and the importance of all relevant parties’ privacy. A transparency order was duly sent to me and I confirmed receipt and understanding. The judge also asked for an introductory summary from counsel for the applicant to lay out the situation for the benefit of all the attendees.

Background

T is 19 years old with mild learning disabilities. She lives with her adopted parents and her natural siblings.

Mrs Justice Roberts brought some colour and humanity to T as a person by evidencing her pleasure at hearing that T is “living a full life”, is a keen horse rider and enjoys working at the local stables and participating in the local theatre group. This served as a valuable reminder that all these hearings involve life-changing decisions for a real individual, not just legal shenanigans. 

T is eligible for care under the Care Act 2014 and has an Educational Care Plan in place. 

She has expressed wishes to spend time alone with her boyfriend, M,  at his flat and maybe live with him. 

According to the applicant local authority, T “has historically presented as naïve and vulnerable with regards to seeking relationships such as posting adverts on Facebook for a boyfriend with no criteria other than availability. Further, there have also been concerning images shared with her over the internet. Her mother considers that she is very vulnerable in the area of internet usage.”

All parties agreed with the applicant’s request for a continuation of both the interim declarations of T’s lack of capacity in the relevant areas, and the order restricting her contact with M. 

All parties also agreed that further educational work is needed before a reassessment of T’s capacity for sex. 

The approved order made by Roberts J declared that the Court is satisfied for the purposes of s.48 of the Mental Capacity Act 2005 (i.e. on an interim basis) that there is reason to believe that T lacks capacity to engage in sexual relations (as well as to make decisions re litigation of proceedings, internet use and contraception), and that sexual contact with M can be lawfully restricted as per the existing plan.  

Directions were also made that the other local authority (covering the area where T’s boyfriend, M, lives) must serve M’s completed COP5 and may disclose information related to T’s relationship with him so they can help M with easy read resources.

Observations:

1) Invoking the Supreme Court ruling in Re: JB (A Local Authority v JB, [2021] UKSC 52)

The judge referred to the case of Re: JB (“a case very well known to me”). 

This is a landmark case in the Supreme Court in which the judgment, handed down by Lord Stephens in November 2021, clarified what should be considered as the relevant information that P must be able to understand, retain, use and weigh, as  per s3(1)of the MCA, when making a decision to engage in sexual relations. 

It stated that not only must someone be able to consent to sex, but that they must also understand that the other person must be able to, and does in fact,  consent before and during the course of sexual activity. It reflects that sex is not just something done to P but also that P can be a desiring and initiating agent, with ‘engage’ being the operative word to reflect the mutual nature of the act:

[F]ormulating “the matter” as engaging in, rather than consenting to, sexual relations better captures the nature of the issues […] the terminology of a capacity to decide to “engage in” sexual relations embraces both (i) P’s capacity to consent to sexual relations initiated by the other party and (ii) P’s capacity to understand that, in relation to sexual relations initiated by P, the other party must be able to consent to sexual relations and must in fact be consenting, and consenting throughout, to the sexual relations” (Lord Stephens, para.90,  [2021] UKSC 52)

Previous Open Justice Court of Protection Project blogs here and here and wide academic commentary such as from 39 Essex Chambers have offered insightful reflections on the many broad potential implications of this case. For brevity, I shall refrain from further analysis.

Roberts J very firmly and clearly raised the fact that T’s capacity assessment was undertaken in mid 2021, before the Supreme Court judgment in JB where, as Roberts J put it, “the entire test of ability to consent to sexual relations was recast, in line with what the law ought to be”. She highlighted that in view of this, the capacity assessments for T must be updated – but noted that this had been planned anyway, upon completion of the program of education aiming to support T to make her own informed choices.

It seems that consent in the case of this hearing is more to do with whether T understands consent –  that she may withhold her consent, that she understands the consequences (pregnancy, disease etc) if she does consent –  rather than that she should understand that M must have ability to consent (although clearly now that is required too).

It is the protection element of the MCA that is at work here -to ensure that T is not being subject to, or vulnerable to, what would amount to sexual assault. (This might be particularly so in light of comments reflecting concern about her use of the internet.)

Roberts J’s emphatic reminder of the need for capacity reassessment in light of JB is perhaps rather driven by Lord Stephen’s assertion that:

A general and non-specific basis is not the only appropriate formulation in respect of sexual relations as even in that context, “the matter” can be person-specific …, for instance… in the case of sexual relations between two individuals who are mutually attracted to one another but who both have impairments of the functioning of their minds.” (para. 71, [2021] UKSC 52)

This validation of person-specific decision-making capacity re sex (rather than issue-specific) could be important for T, given that as Lord Stephens explained, “it might be possible to help P to understand the response of one potential sexual partner in circumstances where he will remain unable to understand the diverse responses of many hypothetical sexual partners.” (para. 72, [2021] UKSC 52)

As noted above, the applicant observed that T has been using Facebook in a manner considered naïve and concerning, Admittedly, such indiscriminate invitation by a vulnerable person could well lead to harmful consequences. 

But with regard to her relationship with M, the Position Statement explains that the second respondent has stated that there is no evidence that he has behaved inappropriately towards T. He apparently had exhibited what might be seen to be “controlling behaviour” such as repeatedly asking T to move in with him.

Some might consider that to be normal enthusiasm in the context of young, impatient love rather than controlling or abusive behaviour. I don’t profess to have all the information here, merely to wonder about the evidence to support the restriction of contact. And perhaps that was the point of some of the directions sought relating to the other county council – to better understand M (and his capacity to consent)  and the nature of his relationship with, and intentions towards, T.

It is pure speculation, but I could envision the possibility, particularly following the program of education, that further assessments might conclude T continues to lack capacity to conduct proceedings, make decisions about contraception and make decisions about engaging in sexual relations and contraception in general. But, that she has capacity to make decisions about engaging in sexual relations and contraception specifically with M. (Note it was a conscious decision to write ‘has capacity’ rather than ‘regains capacity’ as it is not evident that a person-specific decision assessment was made in the last assessment. Indeed, presumably as it was conducted pre- JB, it wasn’t.)

2) Sexual contact plan  – ‘draconian’?

Roberts J took great pains to explain to observers in particular that the ‘sexual contact plan’ in place was not at all the “draconian” measure that it might sound, but rather a part of normal parental measures to ensure T could get to a position where she could make her choices, but in a safe fashion.

Given the declaration that it is “in her best interests for her contact with M to be restricted with a view to preventing her from engaging in sexual relations in accordance with” that plan, I did wonder how that looks in real life? Indeed, brief reference was made to the fact that it was on occasion difficult to manage. Does this mean she can’t see him at all? Only in public? Only if chaperoned? If they start to become intimate, does this mean physical restraint is required/permitted? No doubt this is all outlined in said plan but it does leave an observer thinking about the practicalities;:how difficult it must be for T (and M) but also for the parents and local authorities with a duty of care, who need to ensure their infringement of her rights is lawful. 

I did think it might also have been useful for counsel to have expanded a bit more on the specific practicable steps being taken (as required by s1(3) of the MCA) to help T to gain capacity to engage in sexual relations before the next capacity assessment, i.e. to explain the education plan underway and what it is aiming to achieve. This seems to be a key aspect to the continuing proceedings and indeed, the reason that the declarations sought continue to be ‘interim’. However, I recognise that all the parties had access to this information in the bundle and that would have been purely for the benefit of observers.

3) P’s voice in the hearing

T was represented, and all seemed to be in agreement of a non-contentious order. 

But I didn’t hear anything about  T’s opinion of the order (and existing interim declarations) or how she felt about the restriction on sexual contact (per s6(a) MCA). 

This is perhaps another reminder that best interest representations by the Official Solicitor and P’s wishes and beliefs are not necessarily aligned. (See Alex Ruck Keene et al’s Litigation Friends or Foes?  for helpful discussion of this topic.)

I should add here that, upon receipt of the Position Statement and order, I learned a) that T had been objecting to the plan but subsequently agreed it can stay in place; and b) that the directions included specific provision for T’s solicitor to file a statement of her wishes and feelings. 

5) M – the boyfriend

We learned that M has ADHD and very little ability to read or write but has no formal support from statutory services. I did wonder why there wasn’t more discussion of him given a) the order directly impacts on him; and   b) it is apparently at his request that T wants to live with him;  and c) his capacity to consent to sexual relations will also be required and there seemed to be some suggestion that this also may be in question and that he requires some support.  

The Position Statement did however make clear that M had indeed previously been invited to be party to proceedings and had declined, although he did wish to be an interested party. A direction was made that the relevant county council must file the COP5 form he has filled out. 

Final thoughts

I have been struck by how different it is reading judgments and legal commentary on cases (all neatly summarised and structured) compared with observing cases in person in the Court of Protection.

The judiciary, lawyers, and academics are well-versed in organised arguments, carefully placed references and nicely flowing streams of thought. For all of which I have been extremely grateful throughout my study and personal reading. 

The reality of a hearing for an observer though, much like the real-life situation it represents, is inevitably much messier. Skipping from legal argument, to medical evidence, to procedural issues and paperwork, it can be hard to keep up, especially without the benefit of the bundle and experience of the proceedings to date. 

I did notice, too, the extent to which the Court of Protection is more conciliatory and collaborative than, for example, the adversarial criminal court.

Despite this being only my second observation of this Court, I found the experience reasonably straightforward, and the language and processes used facilitated open justice. Having said that, I hadn’t been aware when I requested access that the issue being discussed was capacity for sex: if the fact that this was the issue to be addressed by the court had been included in the listings, I suspect there would have been a larger number of interested public observers, not all of whom would necessarily have been familiar with the legal backdrop to this case. I was very grateful that I was already aware of the legal arguments surrounding decision-making in this context and indeed of the JB history and judgment. Adding the issues to be addressed by the court to the listings would enable us to select hearings of particular interest, and to perhaps also to prepare in advance.

Given the general consensus amongst parties and the fact that interim orders had already been made, I didn’t get the full experience of the court engaged, live, in the delicate balancing act between the state’s duty of care to protect vulnerable persons and the preservation of autonomy. 

It  was readily accepted, on an interim basis, that the infringement of T’s Article 8 right to family and private life continues to be sufficiently necessary and proportionate to keep her safe .

From a legal perspective, Roberts J accepted the applicant’s proposal to allocate the next hearing back to a Tier 2 judge as this is “not a complex case”.  

From a personal perspective, however, I’m sure it must elicit some very complex and mixed emotions for both T (and M) and for her family.

Samantha Williamson is a mature law student with a particular interest in health-related law, inquests and inquiries. She has a recent MA in Medical Ethics and Law from King’s College London and is a trustee of the R&RA charity supporting older people in care. She tweets @samwilliamson03


[1] I am grateful to Pravin Fernando and the local authority for providing me with the Position Statement and approved order later in the day of the hearing.

Photo by Martynas Grigonis on Unsplash

 

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