Southwark, (The London Borough of) v KA (Capacity to Marry) (rev 1)

These proceedings under the Mental Capacity Act 2005 concern a 29 year old learning disabled man, KA, one of five children of a Bangladeshi family.

I am asked to make declarations that KA lacks capacity to make decisions as to:

It is common ground that KA does not have capacity to litigate thus the Official Solicitor is his litigation friend.

The Applicant London Borough of Southwark (‘LBS’) is represented by Peggy Etiebet; KA’s parents, the second and third respondents, MA and RN, by Zimran Samuel; and KA through the Official Solicitor by John McKendrick.

KA was originally diagnosed with a mild learning disability. He was known to social services as a child and young adult.

In 2014 he was not in receipt of any services until he was referred by his GP to South London and Maudsley NHS Foundation Trust due to concerns about talking to himself, hoarding rubbish, a limited daily structure, unusual hand posturing, and poor eating habits and personal hygiene.

Psychiatric and social work assessments record that the family was endeavouring to find a wife for him and that she would care for KA as would any children once KA’s parents became too old, as his siblings did not wish to volunteer. At that time KA appeared to have limited if any understanding of sexual activity or the meaning of marriage. LBS decided to offer information to KA’s family as to appropriate services for them and KA and to assess KA’s capacity.

Concerns were expressed about capacity by KA’s GP, to whom KA’s family took KA for a fertility test, and by a psychiatrist who carried out an assessment.

KA’s parents withdrew from and declined input from social services, thus precluding a formal assessment of capacity.

In combination, the preliminary medical views, the information about marriage plans in a culture which regards marriage of vulnerable individuals as a way of providing them with support, and the family’s disengagement, led to concern that there was a real risk that KA would be married when he lacked the capacity to consent.

SBS urgently sought and obtained Forced Marriage Protection Orders and started these proceedings shortly thereafter.

KA’s parents adamantly deny, but I do not need to decide this, that there was any firmly formulated plan to marry. They have been very distressed by the FMA proceedings, regarding them as intrusive, insulting and unnecessary. Nevertheless after some initial reluctance which persisted until the first Court of Protection hearing, they have engaged positively with care and support including intensive sex and marriage education, which has been helpful for KA. In law it is now a criminal offence to force marriage on anyone, and the definition of forced marriage includes the making of arrangements to marry in respect of a boy/girl, man/woman who is unable to consent not because of duress but because of incapacity.

KA is living at home and has been throughout these proceedings. I am informed through Mr Samuel that he is probably capable of choosing a bride but not capable of making arrangements to marry. It would be a criminal offence for the family to facilitate a marriage if KA truly does lack the capacity to consent.

This is not just a question of principle or the state interfering unnecessarily in the lives of adults, although it may be an unnecessary intrusion where capacity is not disproved. A marriage performed with people who do lack capacity amounts to a gross intrusion of their personal autonomy and may lead to serious sexual offences being committed.

KA lives at home with his family, now attends a local day centre, and could not manage without support. I am satisfied that family members have not described the extent of his needs entirely accurately. On all the evidence his ability to function outside the home is less than presented by them. Nevertheless he has a number of valuable life skills. He can read and write, although not at a sophisticated level, and understand simple documents, care for his cat, and help out in a relative’s local restaurant. His verbal presentation although not at a sophisticated level is relatively good.

Once these proceedings were issued the local authority instructed Dr Alim, a Consultant Psychologist and Behavioural Analyst employed at that time by the South London and Maudsley Mental Health Foundation Trust, to conduct an assessment pursuant to s 49 MCA 2005. That provides that the court may, when considering a question relating to P, require a local authority, or an NHS body, to arrange for a report, dealing with such matters relating to P as the court may direct, to be made by one of its officers or employees.

Dr Alim has 13 years experience in assessing adults with impaired intellectual abilities. She saw KA on five occasions, each lasting 30 – 45 minutes, between April and June 2015. She also interviewed family members. After her assessment Dr Alim concluded that KA lacked the capacity to have sexual relations and to marry. It was asserted that she had applied too high a test. In consequence she was asked a number of questions, by letter. She answered some of the questions but said that she would ideally need to see KA on two further occasions, it was not clear entirely why.

A hearing took place before Moor J in April 2015 when he expressed his strong concern that the case had not been brought to an earlier conclusion.

By the PTR, before me, Dr Alim had not provided a further capacity report. She was in the process of leaving her post to go to another post elsewhere, with a holiday intervening. The OS sought to instruct another expert. I refused. I had the earlier assessments and Dr Alim’s report and her answers to questions. Her factual and professional observations were of great assistance and I took the view that I was unlikely to need anything more. I thought then and now am clear that she did overstate the test in respect of KA’s understanding of immigration considerations and the financial consequences of divorce but this does not undermine her opinion. She is a doctor not a lawyer. Assessment of capacity was for me. KA’s parents did not want there to be another expert. I decided to retain the final hearing myself and that no more paper investigation should be attempted, but that Dr Alim should be cross-examined, in the expectation that that would give the court sufficient information. If it did not, KA might have to be seen again, and/or another expert instructed.

Dr Alim was carefully cross examined on behalf of all parties. I am grateful to KA’s solicitor for reproducing his near contemporaneous note of relevant parts of her evidence. I have also reread my own notes. I found her a careful, thoughtful and impressive witness.

She has carried out many capacity assessments over 10 years. I agree with the Official Solicitor that it is not relevant that she has not carried out such an assessment before as it does not affect her factual and clinical conclusions. No party asked for the instruction of a further expert after the conclusion of her evidence.

Her view is that KA, who has an IQ of about 70, is nearer the “moderate” than the original “mild” classification of learning disability. He will struggle to manage his affairs most of the time, would need a good level of support, but has good cognitive skills. His learning difficulties amount to an impairment and/or disturbance of mind and brain. They are the cause of his functional inability to use, retain, understand and communicate.

On the basis of Dr Alim’s evaluation I accept that as a result of his functional disability KA lacks the capacity to conduct these proceedings or to instruct legal representatives direct because he does not truly understand that the court is deciding on his capacity, and why, and in what respect, and although he has a broad understanding of the role of a judge, does not understand other roles, the issues or the process of decsison making.

Dr Alim found KA shy and initially communication with him about sexual matters was difficult. Modesty was ‘definitely a feature’ and may have a cultural cause. Nevertheless on careful enquiry she was able to establish to her satisfaction, and to mine, broadly the extent of his understanding. The summary below does not use his exact words except where indicated, and combines her initial view with her answers in court where indicated.

In general she found him very concrete in his thinking. He knew that she was there to talk about marriage and children. He gave her spontaneous answers.

He wants to be married to a wife:

Dr Alim thought that KA would find it a significant deprivation if he could not marry and have sexual intercourse. That is not part of any test, but it supports the inference that KA understands the nature and character of both.

As well as Dr Alim’s report I have the note of a discussion with KA on 2 October 2015 by a representative of Bindmans appointed by the Official Solicitor as his solicitor on behalf of KA which conforms with the information elicited by Dr Alim.

A person must be assumed to have capacity unless it is established that he/she lacks it: s1 (2) MCA 2005.

Capacity is decided on the balance of probabilities and involves:

Furthermore:

I was referred to:-

I was also reminded of two decisions of my own, XCC v AA [2012] EWCOP 2183, and YLA v PM [2013] EWHC 4020 (COP), both about women who I found did not have capacity, and whose personal circumstances were different. From here I need not deal with them further.

Miss Etiebet specifically, and Mr McKendrick impicitly, ask me to add to the body of reported cases by reconciling some of the above authorities and formulating a more complete test. Miss Etiebet submits that as Leveson LJ remarked in IM v LM [2014] EWCA Civ 37 “the identification of the information relevant to the decision is critical”, but that it is difficult to glean from the authorities a workable and practical test since they are unclear and inconsistent.

As Hedley J did in A Local Authority v H I regard it as invidious to be asked to disagree with decisions of Judges with concurrent or higher jurisdiction. I intend to make my decision on the basis of the statute.

One more decision may simply add more uncertainty, potential disagreement and burden on the judiciary in determining what is meant to be a simple, straightforward test. I have already had to wrestle with complex, subtle, intellectual and detailed arguments in this case, and no doubt there will be more to come in subsequent ones. My primary duty is to decide this case.

The tests for capacity in respect of sexual relations and marriage are not high or complex. The degree of understanding of the ‘relevant information’ is not sophisticated and has been described as ‘rudimentary’, although Macur J’s word ‘salient’ may be more apt. I must not set the test too high. The recent leading case is IM v LM at para 82 states and reiterates that the court should be careful not to add to any further relevant information to the requirement for understanding as this is likely to involve unnecessary paternalism and a derogation from personal autonomy. Furthermore the requirement to ‘use and weigh’ the information is unlikely to figure materially.

I must consider the reality that persons of full capacity rarely engage in intellectual debate with themselves or others before entering into sexual relations.

It is vital to draw a clear distinction between:

The issue of marriage in this case hangs very much on KA’s capacity to enter into sexual relations, and the two are interlinked.

I agree that the core relevant information, in respect of sexual relations, on the basis of established authority, is

The authorities are clear as to the necessity of understanding the mechanics of the act and its sexual character: for example that it is not a medical examination or procedure.

On the evidence KA has the necessary degree of understanding. He will know what he is doing and that it is a sexual act.

Both Miss Etiebet explicitly, and Mr McKendrick implicitly, ask me to clarify the necessary degree of understanding of:

Mr Samuel submits that KA has capacity on the application of the straightforward unglossed test.

I shall deal with the issue of consent first, which in my view is not part of the ‘relevant information’, but fundamental to capacity.

In the pre MCA 2005 case of X City Council v MB, NB and MAB Munby J (as he then was) rooted the test for capacity to consent to sexual relations firmly within in the criminal law relating to the consent of the incapacitated person with which he ruled the civil law requires to conform.

He said that the test was:

“Does the person have sufficient knowledge of… the sexual nature and character… of sexual intercourse, to have the capacity to choose whether or not to engage in it, the capacity to decide whether or not to give or withhold or withhold consent to it, (and, where relevant, to communicate their choice to their spouse).”

In Local Authority X v MM, Munby J referred to “the reasonably foreseeable consequences of sexual intercourse, to have the capacity as to whether or not to engage in it, the capacity to decide whether to give or withhold consent”.

In that context I read Munby J as addressing the concept of consent in general, and not to specific instances of sexual intercourse.  

I note that he distinguished the understanding of the sexual act from the concept of consent: which was the consent of P, not a partner.  

In my view consent is not part of the ‘information’ test as to the nature of the act or its foreseeable consequences.  It goes to the root of capacity itself.

Mr McKendrick submits that consent is the exercise of capacity, and not relevant information. I put it a different way. The ability to understand the concept of and the necessity of one's own consent is fundamental to having capacity: in other words that P “knows that she/he has a choice and can refuse”.

I am less certain that consent of the other party is fundamental to capacity.

The core cases do not specifically deal with this issue: some refer to P’s consent and in some there is passing reference to the consent of a partner. None analyses why the latter consent is part of the capacity test.

Since it is all to possible for sexual contact to take place, and does take place, without consent the necessity for the consent of a partner does not obviously form part of the capacity test, particularly since the issue of consent in the criminal law can give rise to complex debate as to mens rea, particularly in cases of apparent consent or lack of explicit communication of consent.

However I need not consider these questions since I have no doubt that KA, who has been carefully educated about it, both understands and retains the understanding of the necessity for consent of both himself and his partner/spouse.

It is particularly important to decouple welfare from capacity under the heading of health and pregnancy.

The statutory test is of foreseeable consequences, as in the pre-existing law. Again on the authorities understanding need only be at a rudimentary level. In IM v LM the Court mandated the need to take a practical approach to the reasonably foreseeable consequences of decisions, which approved the limitations of the relevant information in respect of contraception, as set out by Bodey J in Re A.

I am asked to consider whether Mostyn J was right in The London Borough of Tower Hamlets v TB and SA that understandably the foreseeable consequence of pregnancy is not stand-alone, but should be included in the concept ‘there are health risks involved’.

Furthermore Ms Etiebet argues that P must understand that E understands that the health risk is or can be serious, and that KA thus falls short in his understanding. Mr McKendrick argues that he need only understand that there is a risk of disease or consequences to health. I am asked to examine the language of the reported cases minutely.

The word risk can denote either the chance of something happening, or the level of harm contemplated if it happens. In any event, it is not ‘risk’ that needs to be considered, it is reasonably foreseeable consequences.

Mr McKendrick submits that overall the case law is divergent on whether pregnancy needs to be considered at all. However it is nowhere suggested in the case law that it need not be considered, save in the cases concerning persons of homosexual orientation, where it can be argued that it is not a necessary element to be considered since capacity in this context is act-specific. I take the view that KA, a young man, needs to have an understanding, if not a sophisticated one, that pregnancy is a foreseeable consequence of heterosexual relations. It is beyond the scope of this judgment to decide whether pregnancy is a foreseeable consequence, and therefore needs to be understood, by other individuals, for instance by reason of sexual orientation, age, or particular physical characteristics.

Ms Etiebet argues that KA’s misbelief that pregnancy will rather than may occur, means that KA does not regard pregnancy as a risk, since risk is to be distinguished from certainty. That approaches and applies the test in the wrong way. Something is a foreseeable consequence if it will happen or may happen.

KA's lack of understanding of the mechanics and duration of pregnancy does not affect the fact that he sees it as a foreseeable consequence of sexual intercourse.  It is foreseeable whether or not contraception is practised. The consideration of contraception in general, which must include specific methods, since these questions cannot be considered in the abstract, is far too detailed and complex to form part of the capacity test.

KA’s misunderstanding that pregnancy can only occur within marriage is the only factor which points against him having the relevant understanding of foreseeable consequences but taken on his own it is not sufficient to displace the presumption of capacity.

I accept that pregnancy is a separate type of consequence from illness and must be considered separately. It does not constitute ill-health.

The debate as to the “risks” of ill-health arise from Hedley J in A Local Authority v H “in my view it should suffice if a person understands that sexual relations may lead to significant ill-health and that these risks can be reduced by precautions like a condom”.

Hedley J did not state that a lesser degree of understanding would not suffice, nor what significant (not serious) ill-health might entail. I note that he did not refer to mortality. He did not say that P must have an ability to name disorders or describe their symptoms.

Baker J's case of the young man who was able to describe in detail illnesses and name them (and probably beyond the knowledge of many whose capacity is not in doubt) is an example where capacity was amply and more than established, and does not provide any guidance.

What is ‘significant’ in terms of ill-health is very subjective. From the perspective of the sufferer any sexually transmitted malady must be significant. All can have effects which may be unpleasant and affect well-being.

I do not agree that it is necessary for KA to understand condom use, which, leaving aside efficacy, goes to welfare and not capacity. I read Hedley J as referring to protection methods to illustrate understanding, and not to define it.

Even though the statutory criteria need to be looked at individually, evaluation of a particular capacity should not simply be practical but also has a holistic element. It is not an examination in which one has to attain a certain mark in all modules. 

The issue specific question is not whether P lacks capacity in respect of contraception, or disease control, which I accept, as Mr McKendrick says, is a different issue, but whether overall looking at the relevant information, capacity is proved absent.

Does KA understand that illness is a foreseeable consequence? Dr Alim told me twice  that he understood and retained the knowledge that illness was a possible consequence of sexual activity. That is sufficient.

The test for capacity to marry is also a simple one:

The decision is about capacity and not welfare. Thus I do not take into account aspects of his decision making which affect the consequence of his decision making, so long as they do not affect the decision making process in itself.

Nor is it a factor that in a family which facilitates arranged marriage KA is much more likely to find a bride than if he was unaided.

It is not relevant to his understanding of marriage that he does not understand:

KA is on the borderline of understanding in respect of some of the more refined evaluations, as I have indicated. I have concluded after reflection, exacerbated by the complexity and detail of the legal argument, that, since capacity must be assumed until disproved, KA overall has the capacity to have sexual relations and to marry. I leave out of account the welfare considerations.

I do not know whether a marriage will truly bring happiness to KA. His disabilities will provide challenges for any wife, and they will be different for a wife who has capacity from one who lacks it. A marriage might lead to distress, conflict and misery for KA and his family, as opposed to enhancement of his life and of his personal autonomy. But it is not for me to weigh up the relative chances of finding a wife who is prepared to love and cherish KA with all his needs against that of finding one who is unequal to the task.

KA’s family have said that they agree that he should continue to receive information and that the education process will continue before any marriage. That is wise.

KA’s parents have assured Southwark that they will fully disclose KA’s disabilities and needs to the prospective bride and her family.

I cannot compel them to do so. The consequences if they do not are likely to be very unfortunate.

In that context I have no evidence that KA would necessarily lack litigation capacity to decide to end a marriage or to agree to or resist a divorce. In that unfortunate event that would need to be assessed in context. He might be regarded as a vulnerable adult where a decision in reality would be made for him by others. But all this is for the future and not relevant to his capacity now.

The presumption that KA has the capacity both to enter into sexual relations and to marry is not displaced.

I am satisfied that KA has the capacity to understand and make decisions about his care needs in the context that he understands that there is a choice between home or an institution and living with his family and he prefers the latter. Anyway no issue arises.

KA has a basic understanding of his health needs, a doctor’s role and the need to see or take advice (which he says he would be inclined to follow) from a doctor, if he is ill or has an accident. He does not lack capacity in respect of medical treatment in general. Different considerations may arise in respect of specific interventions, but not at present.

I declare that KA does not have the capacity to litigate for the purpose of these proceedings. Otherwise I shall recite in the order that for the avoidance of doubt he has capacity in the relevant domains.