London Borough of Tower Hamlets v NB (consent to sex)

This case first came before me on 11^th December 2018. The parties on that occasion were inviting me to make an order which purported to be ‘by consent’. I was not prepared to endorse the order and adjourned the case for full argument, listed to be heard on the 7^th May 2019. Following that hearing I delivered an interim judgment, reported [2019] EWCOP 17. The Court and the parties became aware that the Court of Appeal was considering issues relating to capacity to consent to sexual relations in another case and all agreed that it was appropriate to await that judgment before determining this application.

On 11^th June 2019 the Court of Appeal delivered its judgment in B v A Local Authority [2019] EWCA Civ 913. A few days later Mr Bagchi QC and Ms Lavelle, instructed on behalf of the Official Solicitor, requested an opportunity to submit further written submissions addressing the framework surrounding capacity to consent. These submissions were received on 28^th June 2019. The Local Authority also filed supplemental submissions on 8^th July 2019.

Something of the background to these proceedings is set out in my interim judgment but it requires to be repeated and expanded here. The proceedings concern NB. She came to live in the UK in 1985 and married her husband in 1992. The marriage was contracted abroad. When NB first came to live in the United Kingdom she did so without her husband (AU). There was a period in which the couple were separated whilst AU made an application for permission to enter the UK, but in May 1996 NB travelled abroad to return to live with her husband. Following a series of applications to the Home Office throughout 1997 the couple came, eventually, to live together here in London. They lived with NB's parents. A daughter was born a year later (1998).

Mr Bagchi has taken me through some of the records in this case which illuminate the evolution of the couple's relationship. Though some of this is now historical, it identifies NB’s early attachment to and affection for her husband which continues to resonate in the more recent evidence. In a letter to the Immigration Appeals department, as long ago as March 1996, a clinical psychologist, Ms Suzanne Wilson, stated:

NB suffers from what is referred to as 'general global learning difficulty' and 'an impairment' in relation to her facility to communicate with others. She has been, at least historically, assisted by using the Makaton sign language. Her sentences are limited.

In consequence of what appears to have been a number of remarks made by NB to her dentist, in October 2014, a safeguarding enquiry was instigated. There is no record of what it was that she said to the dentist, or at least none which has been presented to this court, but it is clear that it had something to do with the quality of her relationship with her husband and it was such as to give rise to a concern that she might be vulnerable to sexual exploitation. Very quickly, a programme was put in place focusing on sex education, relationships, contraception, sexually transmitted diseases as well as more general issues relating to NB's health.

Following this work, a further assessment was undertaken by a clinical psychologist to consider NB's range of understanding on those key issues. The conclusion of the assessment was that NB was unable to demonstrate an appreciation of why people got married, separated or divorced. It was concluded that she lacked the mental capacity to marry. In respect of her capacity to consent to sexual relations it was considered that she lacked an understanding of the association between sexual intercourse and pregnancy. Additionally, she lacked the ability to appreciate the link between sexual intercourse and sexually transmitted disease. Inevitably, it followed, that she could not link various forms of contraception to the concept of averting pregnancy. She did not have the capacity to retain information in relation to these issues. It was also considered that she was unable to communicate the concept of refusal of sex to her husband. That opinion appears to have been re-evaluated as further information came to light. These different facets of the test reflect the development of the applicable case law. See: X City Council v MB, NM and MAB [2006] 2 FLR 968; CH v A Metropolitan Council [2017] EWCOP 12; Re RS, (Forced Marriage Protection Order) [2015] EWHC 3534 (Fam) (03 December 2015).

I am bound to say that I do not consider that the papers filed in this case provide a clear picture of what has actually been happening in this family. Perhaps, given the incredibly sensitive nature of the issues involved, this is inevitable. There are however, a number of key factors which are, in my judgement, important to isolate:

The Local Authority’s application was now made as long ago as 5^th October 2018. The Official Solicitor was invited to act as NB’s litigation friend on the same day. On 12^th October 2018, HHJ Hilder allocated the proceedings to a Tier 3 judge, that is to say a judge of the High Court. Legal aid was granted to NB on 9^th November 2018. On 11^th December 2018 AU was joined as a party and a wide-ranging assessment of

To summarise, Dr Rippon identified that NB lacked capacity in the following areas of functioning:

In respect of NB’s capacity to consent to sexual relations, Dr Rippon expressed the following view:

On the question as to whether the living arrangements should be changed in view of her conclusions, Dr Rippon stated:

As I observed in the interim judgment, this couple found themselves in an invidious situation, in which their private and sexual life was being scrutinised by a variety of professionals. For entirely understandable reasons, AU was, in my assessment, both frightened and embarrassed when he came to court. When this case came before me on 29^th March 2019 there had been an agreement between AU, Mr Walsh and Mr Bagchi that the case would proceed by way of AU giving an undertaking to the court not to sleep with his wife, in particular and, for the avoidance of any ambiguity, AU was being invited to give a formal undertaking not to have sexual intercourse with his wife.

It is, of course, the case that the breach of a formal undertaking to the Court is punishable in contempt proceedings and may, if appropriate, result in a period of imprisonment. My concern was that if these were the proposed answers to the challenges presented by this situation it may be that the wrong questions were being asked.

Given that the hearing on 29^th March 2019 was listed only for directions it was necessary to adjourn for full argument in the way I have indicated above. I encouraged the Official Solicitor to use his best endeavours to enable AU to obtain legal representation. I am very clear that strenuous efforts were made but AU had become highly anxious and did not attend when requested or make himself available. A short time after the directions hearing, the case suddenly ignited a great deal of media coverage, notwithstanding that no argument had been advanced and no judgment delivered. In my earlier judgment I made the following observations:

This is a very troubling feature of this case. It raises questions concerning the protection of the vulnerable in media coverage, which will require to be addressed by the ad-hoc Court of Protection Rules Committee. It has exacerbated the difficulties in an already challenging situation.

The development of the law in this area really begins prior to the introduction of the Mental Capacity Act 2005 (MCA 2005) with the judgment of Munby J (as he then was) in X City Council v MB, NM and MAB [2006] 2 FLR 968. Munby J said this, at paragraphs 74, 84 and 86:

There are many features of this judgment which, it seems to me, benefit from being revisited. Munby J talks of capacity to marry ‘generally speaking’, as including the capacity to consent to sexual relations. He also observes that the capacity to consent to sex ‘must for this purpose’ be the same, ‘in its essentials’, as that required by the criminal law. In a characteristically thorough exegesis of the caselaw, Munby J traces the criteria for assessment of capacity to consent to sex, to the model set out in Re: MB (Medical Treatment) [1997] 2 FLR 426, which by some alchemy broadly equates to the present orthodoxy. The entire tenor of the language of this judgment strikes me as emphasising the flexibility of the applicable tests, consciously eschewing a rigidity of approach. In this it strikes me as holding fast to the central tenet of the Mental Capacity Act 2005, which requires the focus of assessment to be centred upon an evaluation of the particular individual and a specific decision. The Code of Practice issued by the Lord Chancellor and to which judges must have regard (see s. 42(5)(a) of the Act) makes it clear (at para. 4.4) that the assessment of a person's capacity must be based on their ability to make a specific decision at the time it needs to be made, and not their ability to make decisions in general: as it is often expressed in the Court of Protection, it is ‘decision-specific’ (see PC & NC v City of York Council [2013] EWCA Civ 478 at paras. 31-35).

The approach in X City Council v MB (supra) strikes me as approaching the issue of consent in a way which is structured but not constrictive. It was revisited by Munby J in Local Authority X v MM [2007] EWHC 2003 (Fam). There he made the following observations (at paras 86 and 87):

Munby J also expressed himself in clear terms regarding the interrelationship of the civil and criminal law:

The language of this later judgment is, to my mind, rather more prescriptive. The approach was followed by Mostyn J in D Borough Council v AB [2011] EWHC 101 [COP]; [2011] 2 FLR 72, where the following observations were made:

Having articulated ‘a really very simple test’, Mostyn J applied criteria which he observed had ‘more specificity’ to, what he described as the ‘simple test propounded by Munby J’. The factors he took in to account, were those identified by the expert witness in the case before him. Having considered the expert evidence and heard submissions by counsel, Mostyn J concluded thus:

Against this backdrop arose a decision of the House of Lords in Regina v Cooper [2009] UKHL 42. The speech of Baroness Hale has been the subject of much scrutiny and particularly:

Though not binding, Regina v Cooper had a real impact on the judges of the Court of Protection. In D County Council v LS [2010] EWHC 1544 (Fam), [2010] COPLR 331 Roderic Wood J expressed the view that, in principle, there should be a significant degree of conformity in the tests relevant to establishing capacity in both the civil and criminal courts. He suggested (at para. 40) that it was necessary to discriminate between those matters which go directly to a person’s capacity to make a choice and those matters that could only be relevant to a ‘best interests’ decision. He continued:

In A Local Authority v H [2012] EWHC 49 COP, [2012] 1FCR 590 Hedley J also considered the interrelationship of the criminal and civil law. He said at (para 22):

Later, at paragraph 26, he concluded:

The omnipresent danger in the Court of Protection is that of emphasising the obligation to protect the incapacitous, whilst losing sight of the fundamental principle that the promotion of autonomous decision making is itself a facet of protection. In

These are difficult issues involving intensely personal interactions. The lexicon of the law, perhaps even that of ordinary discourse, presents a challenge when seeking to distil the essence of the concepts in focus. With hesitation and some diffidence, it seems to me to be important to recognise and acknowledge, that in this interpersonal context, relationships are driven as much by instinct and emotion as by rational choice. Indeed, it is the former rather than the latter which invariably prevail. This fundamental aspect of our humanity requires to be identified and appreciated as common to all, including those who suffer some impairment of mind. To fail to do so would be to lose sight of the primary objective of the MCA. It would require a disregard of at least two decades of jurisprudence emphasising P’s autonomy. Moreover, it would seriously risk discriminating against vulnerable adults with learning disabilities and other cognitive challenges.

It strikes me as artificial, at best, to extract both instinct and emotion from an evaluation of consent to sex, they are intrinsic to the act itself. In many ways, of course, instinct and emotion are the antithesis of reason. However, whilst they may cloud decision making, perhaps even to the point of eclipsing any calculation of risk, they are nonetheless central to sexual impulse. To establish an inflexible criterion to what may properly constitute ‘consent’ risks imposing a rationality which is entirely artificial.

It also needs to be emphasised that the law does not identify the criterion which are being considered here. The MCA 2005, in some ways like the Children Act 1989, is a distillation of principles which require to be applied in the context of a careful balance, one in which proportionality of intervention will always be an indivisible feature. Much of the applicable criteria concerning assessment of capacity, across a broad range of decisions, finds its way into this process via the conduit of expert evidence. This is all profoundly helpful to the practitioners and the professionals but the danger is that conceptual silos are created which fail to appreciate the individual and the infinite variety of people’s lives.

The Court of Appeal analysed many of these issues in IM v LM and others [2014] EWCA Civ 37. Mr Bagchi has, helpfully, summarised what he identifies as the central principles emerging from that judgment. I agree with him that the first obligation of the Court is to apply the test pursuant to Section 3 (1) of the MCA 2005. Sir Brian Leveson identifies this imperative in these terms (at para 73):

Having highlighted the statutory criteria, Sir Brian Leveson makes the following observation:

The emphasis here, which focuses on the individual and his or her particular circumstances, captures the prevailing character and tone of the MCA 2005 itself. I highlight it, not least because, it seems to me, that it is a passage which has, too often, been overlooked. Mr Bagchi’s summary of the judgment continues thus:

It is important at this point to consider Section 27 MCA 2005:

I turn to the recent judgment of the Court of Appeal, B v A Local Authority [2019] EWCA Civ 913. The tension or dichotomy that I have identified at para 26 above is emphasised in similar, though not identical, terms (at para 35):

There was no dispute in the appeal that the test for capacity to consent to sexual relationships is general and issue specific, rather than person or event specific. The thrust of the appeal appears to have concentrated on what was said to have been Cobb J’s failure to follow ‘the steps required in the statutory mandated decision-making processes, relating to residence’ and the relevance properly to be attributed to the various factors he took into account addressing questions of incapacity, concerning consent to sexual relations and internet use.

The Court of Appeal was referred to my interim judgment in this case and made the following remarks (at para 49) which I set out in full:

Whilst the Court of Appeal assumed that there was ‘argument’ before me to the effect that IM does not ‘preclude the tailoring of relevant information to accommodate the individual characteristics of the person being assessed’, the fact is that there was no such argument. The Local Authority advanced the same arguments as the Official Solicitor and, of course, AU was neither present nor represented for the reasons I have already set out. Accordingly, the central question was raised by the Court, as analysed at paragraph 13 above.

Addressing the passage in B v A Local Authority (supra) set out above Mr Bagchi, in his supplemental submissions states as follows:

Mr Bagchi then makes the following point which also requires to be set out:

It is important to identify that depriving an individual of a sexual life in circumstances where they may be able to consent to it with a particular partner, is not ‘wrapping them up in cotton wool’. Rather, it is depriving them of a fundamental human right. Additionally, I repeat, AU’s Article 8 rights are also engaged in this context. He too has a right to a sexual life where there is true consent and mutual desire.

One of the central difficulties faced by practitioners, both in the court setting and in the wider community, is that the relevant tests for capacity are framed by psychologists, psychiatrists etc and a practice has developed of applying these tests as if they had the force of statute. It is necessary to emphasise that when an application is made to a judge, it is the judge who evaluates the broad canvas of evidence to determine the question of capacity.

In simple terms, in these circumstances, it is judges not experts who decide these issues. Judges have the enormous advantage of hearing a wide range of evidence about P from a diverse field of witnesses, often including family members. As I have sought to illustrate in my analysis of the law above: X City Council v MB, NM and MAB [2006] 2 FLR 968. (per Munby J); IM v LM and others [2014] EWCA Civ 37. (per Sir Brian Leveson) and now, most recently, B v A Local Authority [2019] EWCA Civ 913 (per Sir Terence Etherton MR), the Courts have repeatedly emphasised that the tests are to be applied in a way which focus upon P’s individual characteristics and circumstances. Whilst it is difficult to contemplate many heterosexual relationships where a failure to understand a risk of pregnancy or sexual disease (consequent upon sexual intercourse) will permit a conclusion that P has capacity, it should not be discounted automatically. This is to elevate the expert guidance beyond its legitimate remit.

Moreover, expert evidence gains its force and strength when challenged and robustly put to the assay. Theories grow, develop and, as the Courts have seen in recent decades, are sometimes debunked. Attributing to expert evidence the status of legislative authority serves also to deprive it of its own intellectual energy and inevitably, in due course, some of its forensic utility.

As I recorded in my interim judgment, Mr Bagchi conceded that if a ‘person specific’ test was applied, NB may very well have been assessed as capacitous to consent to sexual relations with her husband. It struck me as odd, to say the least, that the Official Solicitor, who is appointed to represent NB, was advancing a case which was potentially restrictive of her autonomy. When I raised this with Mr Bagchi he told me that, in the view of the Official Solicitor, any departure from the ‘issue specific’ test and certainly any substitution of it by ‘a person or event specific test’ would create a general administrative burden of such dimension as to become effectively unworkable. Even if that were correct, it could hardly be an appropriate basis for abandoning an argument that NB was entitled to advance. This is simply inconsistent with the role of the Official Solicitor.

Having now seen the Court of Appeal’s judgment, the Official Solicitor has amended his position. Mr Bagchi submits as follows:

This said, it remains the Official Solicitor’s position that whilst it may be ‘theoretically possible to imagine cases’ where there is no need to address understanding of pregnancy or sexually transmitted disease, it creates difficulties both in ‘practice and in principle’. Mr Bagchi seeks to illustrate this proposition in a number of ways:

Whilst I accept some of the force of this and recognise that there is a public interest in the test being relatively simple and therefore easier to apply, this must be balanced against the countervailing public interest in the test being both fair and most likely to facilitate the rights of the incapacitous. Mr Bagchi suggests that the Court should identify a category of individuals for whom pregnancy and sexually transmitted disease will not require assessment. Indeed, he goes further and asserts that it is ‘incumbent on the Court to specify how those undertaking the assessment are to approach that preliminary question.’ This, in my judgment, is only likely to overburden the test and to introduce unnecessary technicalities. It is also, with respect to Mr Bagchi, difficult to reconcile with his own acceptance of the ‘tailored’ approach which he characterises as ‘pragmatic and flexible’. At risk of labouring the point further, I am emphasising that the tests require the incorporation of P’s circumstances and characteristics. Whilst the test can rightly be characterised as ‘issue specific’, in the sense that the key criteria will inevitably be objective, there will, on occasions, be a subjective or person specific context to its application. This entirely accords with the approach pursued by Sir Terence Etherton MR in B v A Local Authority (supra).

The terminology which bedevils this area of law obscures rather than illuminates many of the issues. To my mind, it risks becoming an obstacle to clear thinking. Sir Brian Leveson also was plainly, instinctively, uncomfortable with it. He made the following observations:

In seeking to persuade the Court to identify, prospectively, a category of people who may be exempt from aspects of the test, Mr Bagchi is, fundamentally, seeking to preserve what I have referred to as ‘conceptual silos’. It is not without irony that the objective informing this thinking is said to be the pursuit of ‘simplicity’. It is, in fact, the antithesis of simplicity and inimical to the flexibility which I identify as necessary.

The applicable criteria in evaluating capacity to consent require to be rooted within the clear framework of MCA 2005 ss 1 to 3. The individual tests are not binding and are to be regarded as guidance ‘to be expanded or contracted’ to the facts of the particular case. They are to be construed purposively, both promoting P’s autonomy and protecting her vulnerability.

Mr Bagchi expands on the difficulties presented by the ‘tailored’ approach. Again, he contends that these are problems based ‘both in practice and in principle’. I am left with the clear impression that whilst the Official Solicitor accepts the judgment of the

Mr Bagchi is there contemplating the facts of NHS Foundation Trust v QZ [2017] EWCOP 11, which concerned a woman in her late sixties with chronic, treatment resistant paranoid schizophrenia whose most pervasive delusion was that she was a young Roman Catholic virgin. Those facts do not strike me as sufficiently common to illustrate the difficulties either in practice or principle for which Mr Bagchi contends.

That there is no need to evaluate an understanding of pregnancy when assessing consent to sexual relations in same sex relationships or with women who are infertile or post-menopausal strikes me as redundant of any contrary argument. Nor, with respect to what has been advanced in this case, can it ever be right to assess capacity on a wholly artificial premise which can have no bearing at all on P’s individual decision taking. It is inconsistent with the philosophy of the MCA 2005. Further, it is entirely irreconcilable with the Act’s defining principle in Sec. 1 (2) … ‘a person must be assumed to have capacity unless it is established that he lacks capacity’

Engaging, properly, with the actual circumstances confronting NB, Mr Bagchi submits as follows:

It is facile to seek to exclude P in some absolute way from future harm. Like the Family Court, the Court of Protection frequently evaluates risk. It may do so only on the basis of known facts. Thus, a monogamous marriage of some thirty years duration, where there is no history of sexually transmitted disease, is probably a secure base from which to predict that this is a very low risk for the future. It is in this context that

The Local Authority has also changed its position following the Court of Appeal’s judgment. It mirrors the Official Solicitor’s approach, with, what seems to me to be an equally tepid response. In his supplemental submissions Mr Walsh states:

Later in his document Mr Walsh submits:

This is expanded as follows:

It is important not to conflate an approach, which tailors the applicable criteria of assessment to a particular individual and his circumstances, with a ‘person specific’ test. The two are fundamentally different. In the passages above I consider Mr Walsh falls in to that trap. What I am emphasising here is the application of ‘the Act specific test’ (to use the favoured argot), deployed in a way which promotes P’s opportunity to achieve capacity. This, as I have laboured to highlight, is nothing less than a statutory imperative. It cannot be compromised.

In IM v LM and others (supra) Sir Brian Leveson addresses the danger in assuming that the concepts of consent underpinning the criminal law are transferable to those contemplated here:

The Criminal Courts and the Court of Protection are plainly addressing entirely different issues, engaging distinct and separate principles of social policy and personal autonomy. In the context of the criminal law the test to be applied is a retrospective assessment of whether consent was truly given. In the Court of Protection, the assessment is prospective, contemplating assessment of capacity to consent with both specific individuals and generally.

I have read the concluding passages to Mr Walsh’s supplemental submissions very carefully. They require to be set out:

Again, I consider Mr Walsh is conflating an ‘act specific’ test which nonetheless accommodates NB and her individual circumstances, with a ‘person specific’ test. The focus of submissions has now been honed and refined, following the Court of Appeal’s decision. To my mind, this properly identifies a more nuanced approach which is entirely consistent with the existing case law.

I profoundly disagree, in any event, with Mr Walsh’s submission that, on the available information, NB’s assumed capacity to consent to a sexual relationship with her husband has been rebutted. On the contrary, the preponderant evidence suggests that she is capacitous. This was foreshadowed in Mr Bagchi’s earlier submissions, referred at para 44 above (though I recognise that they were not structured around the test as now identified). The Local Authority may wish to consider a reassessment of NB’s capacity in the light of this judgment. This will, of course, depend on whether the marriage survives.

The Court of Protection deals with human beings who, for a whole variety of reasons, have lost or may have lost capacity. This may be temporary, permanent, fluctuating or limited to a constrained sphere of decision taking. A declaration of incapacity whether tightly circumscribed or expansive in its scope, should not impose sameness or uniformity. The personality and circumstances of the incapacitous are as rich, varied and complex as those of anybody else. All this requires to be taken in to account when evaluating capacity in every sphere of decision taking. As practitioners and indeed as judges we must be vigilant to ensure that the applicable tests do not become a tyranny of sameness, in circumstances where they are capable of being applied in a manner that may properly be tailored to the individual’s situation. To do otherwise would, for the reasons I have set out, lose sight of the key principles of the MCA 2005.