D County Council v LS

These proceedings concern LS, who is now 39 years of age, having been born on 5^th January 1971.

D. County Council (hereinafter referred to as “DCC”) issued an application on 15^th November 2007 seeking various orders and declarations pursuant to the provisions of the Mental Capacity Act 2005.

On 22^nd January 2009 I handed down a judgment which sets out the full background to the case. In that document I stated the issues, the history of LS, summaries of the psychiatric evidence relating to LS and her capacity generally. I have repeated in this judgment only such limited material as is essential to the consideration of the issues now before me. I then determined, specifically, the issues of her capacity to litigate, to determine her residence and care arrangements, contact with others, to consent to sexual relations, and to consent to marriage.

In the course of dealing with those last two subjects I set out what I believed to be the governing law, either under the statutory code of The Mental Capacity Act 2005 or as established in previous authorities.

In paragraphs 59 to 62 of that judgment I considered aspects of a decision of the Court of Appeal (Criminal Division): R v C [2009] 1 Cr App R 15 at 211 et seq. That case concerned issues of capacity to choose whether or not to consent to sexual touching under section 30 (1) of the Sexual Offences Act 2003 (hereinafter referred to as “SOA”).

Since handing down my judgment in January 2009 that case has received further consideration in the House of Lords Judicial Committee (R v C (Gary Anthony) [2009] 1 WLR 1786 et seq.) The Judicial Committee overturned the decision of the Court of Appeal, and in the judgment of Baroness Hale of Richmond DBE, with whom the other members of the committee agreed, there are a number of observations made about the nature of the tests propounded by Munby J. (as he then was) in particular when he was considering, under the inherent jurisdiction, cases of capacity to consent to sexual relations and capacity to marry (see below). As a result of the observations made by Baroness Hale (see below) DCC and the Official Solicitor very properly sought some clarification from me as to what impact, if any, the decision in R v C has had in relation to the law relating to capacity in civil proceedings, and thus, in the event that the law had changed to some degree, whether those changes should lead to a re-consideration, or variation, or discharge of one or both of the declarations I made in January 2009 on the subject of the last two capacities identified in paragraph 3 above.

Before I turn to consider questions relating to the law of capacity, I should indicate that in fact both the local authority and the Official Solicitor acting on behalf of LS agreed that whatever my views in relation to the law, it was unlikely, for the reasons I shall set out below, that the declarations would need any reconsideration, variation or discharge. Having read the documents, and considered the law as I now find it to be, I agree with their conclusions on this subject and thus make no order, for the application of the relevant legal test in both instances leads to no different conclusion now as to the two capacities under consideration in the case of LS.

One of the happier aspects of this case is that, thanks to the scrupulous, supportive and nurturing arrangements made by DCC for LS’s care, she appears happy and contented, attends college for two periods each week, has a work opportunity placement once a week, and does a small independent cleaning job at the weekend. She is clearly well-liked at LN (her residential home) both by staff and the other persons staying there.

Her relationship with AMD continues, but in circumstances where there is no report of either of them attempting to engage in an intimate sexual relationship. I should mention in passing that a psychiatric opinion has been sought in relation to AMD, including a request for an opinion on his capacity to consent to sexual relations, for it is considered that he is, or may be, a vulnerable adult and that declarations as to his capacities in different forms may be required. However, the proceedings issued under the Mental Capacity Act 2005 in relation to him are at a very early stage and it is not known what course, if any, they will take.

In paragraphs 57 and 58 of the January 2009 judgment I set out what I considered to be necessary extracts from two cases tried by Munby J. (as he then was).

The first was X City Council v MB, NB and MAB [2006] 2 FLR 968 et seq. (“MAB”); the second was MM v Local Authority X [2007] EWHC 2003 Fam. (“MM”).

I shall again set out for ease of reference in this judgment what Munby J. said in paragraph 84 of “MAB”.

“Generally speaking, capacity to marry must include the capacity to consent to sexual relations. And the test of capacity to consent to sexual relations must for this purpose be the same in its essentials as that required by the criminal law. Therefore for present purposes the question comes to this. Does the person have sufficient knowledge and understanding of the nature and character – the sexual nature and character – of the act of sexual intercourse, and of the reasonably foreseeable consequences of sexual intercourse, to have the capacity to choose whether or not to engage in it, the capacity to decide whether to give or withhold consent to sexual intercourse (and, where relevant, to communicate their choice to their spouse)?”.

Again, for ease of reference, I shall here set out what Munby J. said in paragraphs 86 to 89 of “MM”:

“86.

When considering capacity to marry, the question is whether X has capacity to marry, not whether she has capacity to marry Y rather than Z. The question of capacity to marry has never been considered by reference to a person's ability to understand or evaluate the characteristics of some particular spouse or intended spouse: Sheffield City Council v E [2004] EWHC 2808 (Fam), [2005] Fam 326, at paras [83]−[85]. In my judgment, the same goes, and for much the same reasons, in relation to capacity to consent to sexual relations. The question is issue specific, both in the general sense and, as I have already pointed out, in the sense that capacity has to be assessed in relation to the particular kind of sexual activity in question. But capacity to consent to sexual relations is, in my judgment, a question directed to the nature of the activity rather than to the identity of the sexual partner.

“87.

A woman either has capacity, for example, to consent to ‘normal' penetrative vaginal intercourse, or she does not. It is difficult to see how it can sensibly be said that she has capacity to consent to a particular sexual act with Y whilst at the same time lacking capacity to consent to precisely the same sexual act with Z. So capacity to consent to sexual intercourse depends upon a person having sufficient knowledge and understanding of the nature and character the sexual nature and character of the act of sexual intercourse, and of the reasonably foreseeable consequences of sexual intercourse, to have the capacity to choose whether or not to engage in it, the capacity to decide whether to give or withhold consent to sexual intercourse: see X City Council v MB, NB and MAB (by his litigation friend the Official Solicitor) [2006] EWHC 168 (Fam), [2006] 2 FLR 968, at para [84]. It does not depend upon an understanding of the consequences of sexual intercourse with a particular person. Put shortly, capacity to consent to sexual relations is issue specific; it is not person (partner) specific.”

“88.

I add only this. Mr Sachdeva correctly pointed out that there is no necessary requirement that the civil (family) law and criminal law should adopt the same test for capacity to consent to sexual relations, though plainly the civil law's test of consent cannot derogate from the protections afforded to the vulnerable by the criminal law. So it is at least possible to contemplate the civil law imposing a different and more demanding test of capacity. But, as Mr Sachdeva says, it adds clarity if the civil law and the criminal law do share the same test.”

“89.

Moreover, and of equal if not greater importance, there are sound reasons of policy why the civil law and the criminal law should in this respect be the same, why the law should, as it were, speak with one voice and why there should not be any inconsistency of approach as between the criminal law and the civil law. In this context both the criminal law and the civil law serve the same important function: to protect the vulnerable from abuse and exploitation (see further below). Viewed from this perspective, X either has capacity to consent to sexual intercourse or she does not. It cannot depend upon the forensic context in which the question arises, for otherwise, it might be thought, the law would be brought into disrepute.” [Emphasis supplied].

Although I did not refer to it in the January 2009 judgment, it is also useful to set out what Munby J. said in paragraph 90 of his decision in MM:

“90.

I remain of the view I expressed in X City Council v MB, NB and MAB (by his litigation friend the Official Solicitor) [2006] EWHC 168 (Fam), [2006] 2 FLR 968, at para [84], that the test of capacity to consent to sexual relations must for the purposes of the civil law be the same in its essentials as in the criminal law.”

In paragraphs 86 to 90 of the January 2009 judgment I set out what I believed to be the law in relation to this issue. In particular, I made reference to another decision of Munby J.: Re E (An Alleged Patient) Sheffield City Council v E [2005] 1FLR 965. (“Sheffield”). The relevant extract from Sheffield is to be found at paragraph 141, which reads as follows:

“I can accordingly summarise my principal conclusions as follows:

i)

The question is not whether E has capacity to marry X rather than Y. The question is not (being specific) whether E has capacity to marry S. The relevant question is whether E has capacity to marry. If she does, it is not necessary to show that she also has capacity to take care of her own person and property.

ii)

The question of whether E has capacity to marry is quite distinct from the question of whether E is wise to marry: either wise to marry at all, or wise to marry X rather than Y, or wise to marry S.

iii)

In relation to her marriage the only question for the court is whether E has capacity to marry. The court has no jurisdiction to consider whether it is in E’s best interests to marry or to marry S. The court is concerned with E’s capacity to marry. It is not concerned with the wisdom of her marriage in general or her marriage to S in particular.

iv)

In relation to the question of whether E has capacity to marry the law remains today as it was set out by Singleton LJ in In the Estate of Park deceased, Park v Park [1954] P 112 at p 127:

“Was the deceased ... capable of understanding the nature of the contract into which he was entering, or was his mental condition such that he was incapable of understanding it? To ascertain the nature of the contract of marriage a man must be mentally capable of appreciating that it involves the responsibilities normally attaching to marriage. Without that degree of mentality, it cannot be said that he understands the nature of the contract.”

v)

More specifically, it is not enough that someone appreciates that he or she is taking part in a marriage ceremony or understand its words.

vi)

He or she must understand the nature of the marriage contract.

vii)

This means that he or she must be mentally capable of understanding the duties and responsibilities that normally attach to marriage.

viii)

That said, the contract of marriage is in essence a simple one, which does not require a high degree of intelligence to comprehend. The contract of marriage can readily be understood by anyone of normal intelligence.

ix)

There are thus, in essence, two aspects to the inquiry whether someone has capacity to marry. (1) Does he or she understand the nature of the marriage contract? (2) Does he or she understand the duties and responsibilities that normally attach to marriage?

x)

The duties and responsibilities that normally attach to marriage can be summarised as follows: Marriage, whether civil or religious, is a contract formally entered into. It confers on the parties the status of husband and wife, the essence of the contract being an agreement between a man and a woman to live together, and to love one another as husband and wife, to the exclusion of all others. It creates a relationship of mutual and reciprocal obligations, typically involving the sharing of a common home and a common domestic life and the right to enjoy each other’s society, comfort and assistance.”

With the addition of a small number of comments of my own which it is not necessary to repeat here, I respectfully adopted the approach taken by Munby J., and the Court of Appeal (Criminal Division) in R v C on the issue of capacity to consent to sexual relations.

In relation to capacity to consent to marriage I also respectfully agreed with the observations of Munby J. in the Sheffield case, simply adding the following comments of my own, which I repeat for ease of reference:

“It is thus clear from this reasoning, with which I have specifically agreed, that, startling as it is perhaps to many, the capacity of LS to marry is a quite separate and distinct issue from whether she has the capacity to take care of her own person, and whether she has capacity to look after her own property, and with whom she is to have contact to take but three examples.

The courts are not here to protect the capacitous from unwise decisions. As long as LS has the capacity by virtue of her understanding of the institution of marriage as defined by the authorities, the choice must be hers where the proposed groom is himself capable of consenting to a marriage.”

The victim of a sexual assault in that case was a woman suffering from a schizo-affective disorder. She had permitted the defendant to penetrate her mouth with his penis because of an irrational fear that he would harm her, or even possibly kill her. The judicial committee was considering the proper interpretation of section 30 of the SOA the relevant provisions of which are:

“(1)

A person (A) commits an offence if -

(a)

he intentionally touches another person (B),

(b)

the touching is sexual,

(c)

B is unable to refuse because of or for a reason related to a mental disorder, and

(d)

A knows or could reasonably be expected to know that B has a mental disorder and that because of it or for a reason related to it B is likely to be unable to refuse.

(2)

B is unable to refuse if -

(a)

he lacks the capacity to choose whether to agree to the touching (whether because he lacks sufficient understanding of the nature or reasonably foreseeable consequences of what is being done, or for any other reason), or

(b)

he is unable to communicate such a choice to A.”

As I have noted above, Baroness Hale gave the lead judgment. The relevant extracts seem to me to be for my purposes, paragraphs 23 to 28 which read as follows:

“23.

The questions certified for us by the Court of Appeal have been summarised for us by the parties:

Whether the decision of the Court of Appeal . . . has unduly limited the scope of section 30(1) of the Sexual Offences Act beyond that which Parliament intended. Specifically

(a)

in holding that a lack of capacity to choose cannot be person or situation specific

(b)

in holding that an irrational fear that prevents the exercise of choice cannot be equated with a lack of capacity to choose

(c)

in holding that to fall within section 30(2)(b) a complainant must be physically unable to communicate by reason of his mental disorder.”

24.

My Lords, I have no doubt that the answer to questions (a) and (b) is “yes". The Court of Appeal acknowledged that this was a difficult area and they were, in my view, unduly influenced by the views of Munby J in another context. I am far from persuaded that those views were correct, because the case law on capacity has for some time recognised that, to be able to make a decision, the person concerned must not only be able to understand the information relevant to making it but also be able to “weigh [that information] in the balance to arrive at [a] choice": see Re C (Adult: Refusal of Treatment) [1994] 1 WLR 290, 295, approved in Re MB (Medical Treatment) [1997] 2 FLR 426. In Re C, the patient’s persecutory delusions might have prevented him from weighing the information relevant to having his leg amputated because of gangrene, which he was perfectly capable of understanding, but they did not. But in NHS Trust v T (adult patient: refusal of medical treatment) [2004] EWHC 1279 (Fam), [2005] 1 All ER 387, the patient had a history of self harming leading to dangerously low haemoglobin levels. She knew that if she refused a blood transfusion she might die; nevertheless she believed that her blood was evil and that the healthy blood given her in a transfusion became contaminated and thus increased the volume of evil blood in her body and “likewise the danger of my committing acts of evil". Charles J concluded that she was unable to use and weigh the relevant information, and thus the competing factors, in the process of arriving at her decision to refuse a transfusion (para 63). In the same way, a person’s delusions that she was being commanded by God to have sexual intercourse, an act which she was perfectly capable of understanding, might make her incapable of exercising an autonomous choice in the matter.

25.

However, it is not for us to decide whether Munby J was right or wrong about the common law. The 2003 Act puts the matter beyond doubt. A person is unable to refuse if he lacks the capacity to choose whether to agree to the touching “whether because he lacks sufficient understanding of the nature or reasonably foreseeable consequences of what is being done, or for any other reason” (s 30(2)(a)). Provided that the inability to refuse is “because of or for a reason related to a mental disorder” (s 30(1)(c)), and the other ingredients of the offence are made out, the perpetrator is guilty. The words “for any other reason” are clearly capable of encompassing a wide range of circumstances in which a person’s mental disorder may rob them of the ability to make an autonomous choice, even though they may have sufficient understanding of the information relevant to making it. These could include the kind of compulsion which drives a person with anorexia to refuse food, the delusions which drive a person with schizophrenia to believe that she must do something, or the phobia (or irrational fear) which drives a person to refuse a life-saving injection (as in Re MB) or a blood transfusion (as in NHS Trust v T).

26.

The 2003 Act also makes it clear that the question is whether the complainant has the capacity to choose whether to agree to “the touching", that is, the specific act of sexual touching of which the defendant is accused. It is, perhaps, easier to understand how the test of capacity might be “act specific” but not “person specific” or “situation specific” if intellectual understanding were all that was required. The complainant here did know what a “blow job” was. Even then, it is well accepted that capacity can fluctuate, so that a person may have the required degree of understanding one day but not another. But that is because of a fluctuation in the mental disorder rather than a fluctuation in the circumstances. Once it is accepted that choice is an exercise of free will, and that mental disorder may rob a person of free will in a number of different ways and in a number of different situations, then a mentally disordered person may be quite capable of exercising choice in one situation but not in another. The complainant here, even in her agitated and aroused state, might have been quite capable of deciding whether or not to have sexual intercourse with a person who had not put her in the vulnerable and terrifying situation in which she found herself on 27 June 2007. The question is whether, in the state that she was in that day, she was capable of choosing whether to agree to the touching demanded of her by the defendant.

27.

My Lords, it is difficult to think of an activity which is more person and situation specific than sexual relations. One does not consent to sex in general. One consents to this act of sex with this person at this time and in this place. Autonomy entails the freedom and the capacity to make a choice of whether or not to do so. This is entirely consistent with the respect for autonomy in matters of private life which is guaranteed by article 8 of the European Convention on Human Rights. The object of the 2003 Act was to get away from the previous “status” based approach which assumed that all “defectives” lacked capacity, and thus denied them the possibility of making autonomous choices, while failing to protect those whose mental disorder deprived them of autonomy in other ways.

28.

My Lords, I believe that the Court of Appeal were led astray by their understandable reliance upon the contrary view, that capacity could not be situation specific, and it was for this reason that they found the matter so difficult. Mr Richard Wormald, for the defendant, has not seriously tried to uphold their reasoning on the questions which we have been asked. He accepts that an irrational fear plainly is capable of depriving a person of capacity. The question is whether it does. He has, understandably, pointed to all the features in the evidence which suggest that the complainant was indeed exercising a choice, a choice reluctantly to go along with what was being asked of her because of her fear of the consequences if she did not. But if the judge’s direction on lack of capacity is upheld, as I consider it should be, it is difficult to suggest that the jury were not entitled to reach the verdict they did on the evidence they heard.”

The Judicial Committee in R v C was construing section 30 of the SOA, and not specifically the approach to issues of capacity in the Civil Division, if different from the former.

Accordingly, they had no full argument in relation to the treatment of capacity issues in the civil context.

Thus, any comments made in that judgment about the approach of the civil courts, and that taken by Munby J. in particular in the authorities cited above, are obiter dicta.

Yet, as Mr. Sellars reminds me, these were not ex tempore judgments by the House of Lords, but carefully considered ones. As is widely known, Baroness Hale is a leading author and editor on the subject of mental health issues including capacity.

Although Lord Hope and Lord Rodger gave very short additional reasons of their own, they, as with other members of the constitution, agreed without demur with the judgment of Baroness Hale, and thus I should approach my consideration of it on the basis that all of the other members of the committee agreed with her caveat in respect of the approach taken by Munby J. in the earlier authorities.

As to those earlier authorities, the decisions of Munby J. referred to above were made by another High Court judge of the Division, and so are persuasive but not binding upon me. I nevertheless adopted them in January 2009 as I have earlier made clear. In the light of the observations of Baroness Hale in R v C above, I agree with the parties in this case that it is, however, needful to re-visit the issue.

Previous authorities establish, a proposition with which I agreed in January 2009, that there should in principle be a significant degree of conformity in the tests relevant to establishing capacity in both the civil and the criminal courts, although it may be conceivable that there is room for some differentiation depending on the particular circumstances. For obvious reasons, it would be highly undesirable to have totally inconsistent and/or significantly incompatible approaches between the two jurisdictions.

The 2005 Act came into force in 2007. These proceedings were issued invoking that jurisdiction. The Code of Practice to the 2005 Act (itself not having the force of law) makes it clear that in the author’s judgment, judges may still choose to apply common-law tests existing prior to the coming into effect of the 2005 Act, and indeed went so far as to assert: “The Act's new definition of capacity is in line with the existing common law tests, and the Act does not replace them. When cases come before the court on the above issues, judges can adopt the new definition if they think it is appropriate. The Act will apply to all other cases relating to financial, healthcare or welfare decisions.”

As Miss Dolan (the Advocate to the Court) pointed out in her skeleton argument, recent authority of the Court of Appeal (Westminster City Council v C [2009] 2 WLR 185) made it clear that the 2005 Act has not, in the judgment of that court, ousted the inherent jurisdiction of the High Court in respect of incapable adults. See, for example, the observations of Thorpe LJ. at paragraph 12 and Wall LJ (as he then was) at paragraph 54.

If the above propositions are correct, it would be open to me to continue to rely upon the tests propounded by Munby J. in the earlier mentioned authorities, and as Miss Dolan again points out in her skeleton it would, theoretically at least, be open to me to consider these issues of capacity to marriage and consent to sexual relations using the pre-2005 Act tests, rather than attempt to consider the facts in the context of, in particular, section 3 (1) of the 2005 Act.

However, my own approach (conventional enough) is that where Parliament has enacted a statutory code, I should attempt to construe and apply the statutory provisions, and only resort to the inherent jurisdiction when I perceive there to be a lacuna in the statutory framework.

But I should also make it clear that, in so saying, I have found it useful to consider the common-law provisions, to see what guidance they may offer to me in construing statutory provision.

Before I turn to any discussion of the law as I now believe it to be, it is, for convenience, appropriate to say something more of the psychiatric evidence, even though I dealt with it extensively in the earlier judgment. In January 2009 I had a number of reports, going back over several months, from two doctors (Dr. Halstead and Dr. Milne). The necessary material was set out in the January 2009 judgment in paragraphs 67 to 84 (capacity to consent to sexual relations) and paragraphs 91 to 95 (capacity to consent to marriage). I am told that the psychiatric state of LS has not observably altered since January 2009, save for the overall improvement in her wellbeing noted above. I thus do not consider it necessary to repeat that material extensively save for the following passages:

“The oral evidence of both doctors was extremely helpful in de-mystifying what appeared to the Official Solicitor and to me as the potential problem of interpretation by the two doctors referred to in paragraphs 64 - 65 above. In reality, both were simply highlighting that at the time they examined her (in the case of Dr. Halstead on the second occasion) they were satisfied that she did indeed have capacity to consent to sexual relations (and to marriage - see below). Their worry was whether or not that capacity would diminish if removed from the nurturing environment of LN. That of course is a quite different point. It may well be that her capacity changes according to the prevailing circumstances of her physical care and any personal relationships she forms or has already formed. Overall, however, Dr. Milne was clear that [in the context of her learning disability] it is unlikely that her basic knowledge of the essential information required to form capacitous decisions on sexual intercourse and marriage was likely to change unless she becomes subject to some further mental illness. Whilst those with learning disabilities of her type are more prone to other mental illnesses, there is no indication in her case happily, that there is anything currently requiring consideration.

What both doctors also highlighted was, less happily, that depending upon her circumstances, her understanding that she can refuse to have sexual relations may diminish (an internal consideration) or even where she does decline consent, her will is overborne by others as historically has been the case (an external consideration).” [Emphasis Supplied].

Earlier in the judgment, in the context of considering her capacity to consent to sexual relations, I drew attention to the following:

“However, in their document of Heads of Agreement dated 28^th November 2008 (D162/3) they immediately go on to say the following:

“(e)

We are both agreed that in the event that LS is returned to a situation where she is not supported, she will quickly become vulnerable to exploitation by others, is unlikely to be able to successfully extricate herself from such a situation, and in those circumstances may lose capacity in those areas where she currently does have capacity”.

I was thus able to conclude that LS understood the basic information relating to the nature of (i) sexual intercourse and sexual relations other than vaginal intercourse and (ii) marriage, in that she had an understanding of the nature of the relevant acts and their consequences in relation to (i), and the nature of the institution and contract in (ii), even if she had problems retaining the information over a long period. Thus in considering the provisions of section 3 (1) (a) and (b), along with section 3 (3) of the 2005 Act, I concluded that LS was capacitous in the “issue-specific” sense described by Munby J. in paragraph 86 of MM, or what is sometimes called “subject matter specific”.

In paragraph 24 of R v C, Baroness Hale, in noting that she considered the Court of Appeal to have been unduly influenced by the views of Munby J. in a different context, said, as I have set out in more detail above: “I am far from persuaded that those views were correct, because the case-law on capacity has for some time recognised that, to be able to make a decision, the person concerned must not only be able to understand the information relevant to making it, but also be able to ‘weigh [that information] in the balance to arrive at [a] choice’….”.

Although Baroness Hale went on in paragraph 24 of her judgment to cite a number of cases (see paragraph 19 above for the full citations) and did not refer to the 2005 Act specifically in it, I remind myself of the provisions of section 3 (1) of the 2005 Act which reads (sufficient for these purposes):

“…….. a person is unable to make a decision for himself if he is unable –

(c)

to use or weigh that information as part of the process of making the decision …”.

It is not for me to second-guess what conclusions the Supreme Court (as it now is) might come to if the old common-law decisions under the inherent jurisdiction were reviewed by them in the light of the above recorded observation made by Baroness Hale. Nor is it necessary for me to attempt to interpret, and decide upon, whether or not phrases used by Munby J. in MAB (paragraph 74) and MM (paragraph 87) (see for example the words emphasised in citation in paragraph 13 above) indicated that, to his mind, the test now contained in section 3 (1) (c) of the 2005 Act was considered by him (albeit he expressed his reflections, if made, in succinct form) to be a necessary part of any test of capacity in relation to the two issues of sexual relations and marriage.

I have decided that such an exercise is unnecessary because, in my judgment, the observations of Baroness Hale in paragraphs 24 to 28 in particular of the judgment in R v C (but in the context of the whole of her judgment) are, though framed in terms of an analysis of the relevant aspects of the SOA 2003, so self-evidently of wide application in considering questions of capacity in the civil as well as the criminal context that it is impossible for me to come to any other conclusion than that the approach adopted in those paragraphs of R v C apply to questions of the capacity, or lack of it, to make decisions on the issue of sexual relations (and indeed of marriage), in both the civil and the criminal arena and, in particular, are, in my judgment, wholly consistent with the statutory requirements of section 3 of the 2005 Act.

In other words the above approach accommodates the need to “understand the information relevant to the decision”, retention of that information for a necessary period, and the requirement “to use or weigh that information as part of the process of making the decision ……” required by section 3 (1) of the 2005 Act.

In considering these matters all counsel emphasised, and I agree, that it is necessary to discriminate between those matters which go directly to a person’s capacity (or impeded capacity, or lack of capacity) to make a choice, and those matters which can only be relevant to a “best interests” decision. What is necessary is that the particular sexual partner (to continue this illustration) impedes or undermines or has the effect of impeding or undermining the mental functioning of a person when that person makes their decisions, so as to render them incapacitous. See, for example, the plight of the victim in R v C.

Further illustrations of this proposition may be seen in the cases of a lack of capacity to consent based upon an irrational fear; for examples of which see paragraph 24 of the decision in R v C, and the references to NHS Trust v T (Adult Patient: refusal of Medical Treatment) [2005] 1 All ER 387, and Baroness Hale’s own example at the conclusion of that paragraph.

These types of impediment which affect mental functioning to the extent of undermining the ability to make a capacitous decision must be carefully distinguished from a person’s specific features which do not undermine capacity in the same way. Another person’s view of the suitability of a particular sexual partner for the person whose capacity is being considered is irrelevant to the determination of whether or not that person has capacity. To take account of such a feature in determining capacity would be risking the importation of “best interests,” and runs directly counter to section 1 (4) of the 2005 Act [“a person is not to be treated as unable to make a decision merely because he makes an unwise decision”]. Furthermore, as Baroness Hale pointed out in R v C, to apply such a consideration to the determination of capacity would be, as Miss Greaney also observed in her submissions to me, a gross failure to respect a person’s autonomy, protected by Article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950 in relation to one of the most intimate and personal aspects of their private life.

For the avoidance of doubt, it seems to me (approaching the issue of capacity to consent to marriage on the conventional assumption that almost invariably, but not inevitably, contemplation of marriage includes contemplation of sexual relations within marriage) the above approach has relevance to the issue of capacity to consent to marriage; but the application of the above test is not dependent upon there being such a contemplation of sexual relations.

As I noted in paragraph 82 of the January 2009 judgment: “It may well be that her capacity changes according to the prevailing circumstances of her physical care and any personal relationships she forms or has already formed. Overall, however, Dr. Milne was clear that [in the context of her learning disability] it is unlikely that her basic knowledge of the essential information required to form capacitous decisions on sexual intercourse and marriage was likely to change unless she becomes subject to some further mental illness. Whilst those with learning disabilities of her type are more prone to other mental illnesses, there is no indication in her case happily, that there is anything currently requiring consideration.”

It seems to me that the recognition of that possibility for change, in combination with that passage of the psychiatric evidence set out in paragraph 33 above, and the conclusions I drew summarised in paragraph 34 above, conform with the appropriate approach to determination of issues of capacity set out in the 2005 Act, and as viewed through the prism of the observations in the judgments of R v C.

I am extremely grateful for the wide-ranging, erudite submissions provided to me by counsel in this case. I am also grateful to the Official Solicitor for enabling the Court to be provided with an Advocate to the Court. I hope they will forgive me for declining to consider a number of other issues they raised. In my judgment, it was not necessary so to do to come to a proper determination of the issues in this case.

I understand that there are a number of cases in which the issue of the appropriate test of capacity following R v C has arisen, and that it may be helpful to the debate relating to such issues if this decision is published. Accordingly, I give permission for that to occur in anonymised form only.