Mental health – Persons who lack capacity – Mental capacity
 EWCA Civ 37
23 January 2014
Court of Appeal, Civil Division
Sir Brian Leveson P, Lord Justice Tomlinson and Lord Justice McFarlane
Richard Gordon QC and Matthew Stockwell (instructed by Peter Edwards Law Ltd, Liverpool) for IM.
Jenni Richards QC and Jonathan Butler (instructed by Hogans Solicitors Ltd, Liverpool) for LM.
Adam Fullwood (instructed by Quality Solicitors, Jackson & Canter LLP, Liverpool) for AB.
James Gatenby (instructed by Liverpool City Council) for Liverpool City Council.
Mental health – Persons who lack capacity. The first defendant was hospitalised after she suffered an hypoxic brain injury, causing significant amnesia with moments of lucid thought. Her partner issued proceedings, challenging restrictions on visiting her. The judge held that the first respondent lacked capacity to make decisions concerning residence, care and contact with others, but had capacity to make decisions about whether or not to have sexual relations. The claimant mother of the first defendant appealed. The Court of Appeal, Civil Division, gave guidance on the correct approach to assessing capacity of protected persons to consent to sexual relations. It found that the judge had adopted essentially the correct approach and had reached the correct conclusion.
The judgment is available at:  EWCA Civ 37
In July 2010, the first defendant, LM, then aged 37, suffered an hypoxic brain injury, causing significant amnesia with moments of lucid thought. In September, she was placed in a specialist unit for the purposes of extensive rehabilitation. The second defendant, AB, with whom LM had had a relationship, including a sexual relationship, had been barred from the hospital in which LM was being treated, his contact with her had been restricted and knowledge of her whereabouts had been withheld. AB commenced proceedings before the Court of Protection to challenge the legality of those restrictions.
In January 2013, the judge made orders that LM lacked capacity to make decisions concerning residence, care and contact with others. He further held that LM had possessed the abilities required to lead to the conclusion that she had capacity to make decisions about whether or not to have sexual relations. In reaching that conclusion, the judge had identified part of the jointly instructed expert’s evidence as irrelevant because it had not borne upon LM’s capacity to make a decision of the kind in question.
The claimant mother of LM, IM, appealed on the basis that the judge had failed to pose the correct legal test, wrongly purporting to follow the conclusions in first instance decisions, rather than an appellate court decision. In particular, she contended that: (i) the evaluation of legal capacity focussed on the capacity of an individual to make a particular decision and the legal principles to be applied were the same whatever the nature of the decision; (ii) deciding whether a person possessed such legal capacity necessarily required consideration of the characteristics of the person making the decision; (iii) some decisions were person-specific and others might not involve that dynamic, but be act-specific; (iv) capacity to consent to sexual relations was pre-eminently capable of being a person-specific decision and would inevitably relate to consent to sexual relations with another particular individual; (v) the case law on capacity to consent to sexual relations had become confused and over-complicated; (vi) applying the correct principles to the evidence on the facts of the instant case, the only evidence was clearly to the effect that, on an evaluation of capacity that included a person-specific element, LM had not possessed capacity to consent to sexual relations; and (vii) the judge had considered a number of legally irrelevant considerations.
It fell to be determined whether the judge had erred in concluding that LM had had capacity to consent to sexual relations. Part 1 and s 3(1) of the Mental Capacity Act 2005 were considered.
The appeal would be dismissed.
Every single issue of capacity which fell to be determined under Pt 1 of the Act had to be evaluated by applying s 3(1) of the Act in full and considering each of the four elements of the decision-making process that were set out. The extent to which, on the facts of any individual case, there was a need either for a sophisticated or for a more straightforward evaluation of any of those elements would naturally vary from case to case and from topic to topic. The approach taken in the line of first instance decisions regarding the test for capacity to consent to sexual relationships as being general and issue-specific, rather than person or event-specific represented the correct approach within the terms of the Act. However, that approach was not, in truth, at odds with the appellate court’s observations, which had been made in a different legal context. The requirement for a practical limit on what needed to be envisaged as ‘reasonably foreseeable consequences’ derived not just from pragmatism, but from the imperative that the notional decision-making process attributed to the protected person with regard to consent to sexual relations should not become divorced from the actual decision-making process carried out in that regard on a daily basis by persons of full capacity. That process was largely visceral rather than cerebral, owing more to instinct and emotion than to analysis. It was for that reason that the ability to use and weigh information was unlikely to loom large in the evaluation of capacity to consent to sexual relations. It was not an irrelevant consideration, but the notional process of using and weighing information attributed to the protected person should not involve a refined analysis of the sort which did not typically inform the decision to consent to sexual relations made by a person of full capacity (see , - of the judgment).
In the instant case, the judge had adopted essentially the correct approach and had reached a conclusion which was not just unassailable, but on the basis of the evidence before him, correct. With respect to IM’s points (i) to (iii), it had to be borne in mind that, where a decision was of a kind which fell to be made on a daily or at any rate repeated basis, it was inevitable that the enquiry required by the Act was as to the capacity to make a decision of that kind, not as to the capacity to make any particular decision of that kind which it might be forecast might confront the protected person. Further, it had to be understood that the evaluation of capacity to make a decision whether to consent to sexual relations was in the civil, prospective context, person-centred or person-specific only in the sense that it was, of course, the capacity of the protected person which was in issue. With respect to point (iv), capacity to consent to sexual relations could only be assessed on a general and non-specific basis. As to point (vi), there was nothing in the criticism that the judge had departed from the conclusion of the expert witness, and specifically the jointly instructed expert witness, without providing any articulated reason for so doing. He had done no such thing. The judge had simply identified a part of the expert’s evidence as irrelevant to the legal issue to be decided and had explained why he had done so, namely, because it had not borne upon LM’s capacity to make a decision of the kind in question. With respect to point (vii), the judge had not taken into account legally irrelevant considerations (see - of the judgment).
MM, Re; Local Authority X v MM  3 FCR 788 applied; D Borough Council v AB  3 All ER 435 applied; A Local Authority v H  All ER (D) 34 (Mar) applied; A Local Authority v TZ (by his litigation friend, the Official Solicitor)  All ER (D) 144 (Oct) applied; R v Cooper  4 All ER 1033 considered.
All content provided by LexisNexis.