Bridget Dolan gives a talk at Browne Jacobson's elderly care conference 2015.

1. Relationships and Contact
Bridget Dolan
Serjeants’ Inn Chambers
London EC4Y 1AE
bd@3sinn.com
BJ ECC Seminar: April 2015
@DrBridgetDolan

2. The safeguarding dilemma
• Protection v Autonomy
• When should the state intervene?
• How to ensure any test/threshold is non
discriminatory & preserves the right to have
relationships and sex ?

3. No proxy decision making
Nothing in this Act permits a decision on any of
the following matters to be made on behalf of a
person -
(a) consenting to marriage or a civil partnership,
(b) consenting to have sexual relations...
S.27 (1) MCA

4. ‘Relevant information’ for marriage
• Nature of the formal marriage contract
• Duties and responsibilities normally attached to
marriage
– Live together & love one another to exclusion of
others
– Share a common home
– Right to enjoy each others’ society
– Implicit that includes sexual relationship
Sheffield v E [2005] Fam 326

5. Marriage: the relevant information
Sheffield v E [2005] Fam 326
Capacity to
decide to
enter contract
of marriage

6. Capacity to Marry
“Question is whether X has capacity to marry,
not whether she has capacity to marry Y
rather than Z…
…Not to be considered by reference to
ability to understand or evaluate the
characteristics of intended spouse.”
Munby J: Re MM §86

7. Its all about the act – not who
you do it with
Capacity to decide
to enter contract
of marriage
Not person specific

8. Permissible questions
Capacity to decide
to enter contract
of marriage
Not person specific
Capacity
to decide
to marry
Mr X

9. Permissible questions
Capacity to decide
to enter contract
of marriage
Not person specificCapacity to
decide to
live with
Mr X
Capacity
to decide
to marry
Mr X

10. Capacity
re sexual
relations
Capacity to
decide to
marry
Capacity to
decide to
marry Mr X

11. Capacity for sexual relations
“....the same goes, and for much the same reasons, in
relation to capacity to consent to sexual relations....
The question is issue specific ... capacity has to be
assessed in relation to the particular kind of sexual
activity in question.”
Re MM @ para 86

12. “A woman either has capacity 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 ”
Re MM @ para 87

13. “Capacity to consent to sexual relations is
directed to the nature of the activity rather
than to the identity of the sexual partner”
Munby J: Re MM §86

14. Relevant Information pre-MCA:
Deciding to have sexual relations
• Mechanics of the act
• Sexual nature of the act
• There are health risks involved (STDs)
• Heterosexual sex may result in pregnancy
Munby J: Re MM

15. Post-MCA Relevant Information
DBC v AB (Mostyn J)
• Not that only those over 16 should do it
• Not that both parties should consent
• Not that sex may have emotional
consequences
DBC v AB [2011] § 37, 42;

16. Post–MCA: Relevant Information
• Not the moral and emotional aspects
• That one has a choice and can refuse
A LA v H [2012] § 23-4
How does this square with s.3(4) ?
Policy limitation to keep the threshold low ?

17. Weighing up the information s.3(1)(c)
• Requires ability to use the relevant
information and form a choice
• BUT a refined analysis is not expected
• AND capable adults may make unwise choices

18. Weighing up the information
• In ordinary life the heart may easily overrule
the head
• The process for protected persons should not
be divorced from the actual decision making
process on a day to day basis by those of full
capacity
• Ability to weigh information unlikely to loom
large – not need a refined analysis
Re IM [2014] Court of Appeal

19. Are the person & situation irrelevant?
• Possession of capacity is distinct from the
exercise of it by giving or withholding consent
• Choice (the exercise of capacity) is clearly
person and occasion specific

20. Situation and effect of the person
can be relevant
Mrs A’s contraception
 Learning disability associated with suggestibility
and tendency to aquiescence
• Unable to weigh up pros and cons of
contraception because of coercive pressure
under which placed by husband
LA v Mrs A [2010] EWHC 1549 (Fam) - (Also Re HP [2013] EWCoP B40)

21. Lack of capacity or duress ?
• Lack of capacity: If unable to weigh up
because of interaction of the situation and
the identified impairment of mind or brain
• Duress/undue influence: Another person
overriding a capable wish or does not
express the true choice

22. State responsibility and duties
• MM lacked capacity for social contact
• Had capacity for sexual relations
• 4 hrs/wk unsupervised contact in best interests
• Regime prevented any sexual contact
BUT
• Art 8 rights must be upheld
• If continue to control where she lives and not provide means
to have sexual relationship will be a disproportionate breach
of her rights
Re MM: Munby J

23. (2a) Capacity to
decide on
social contact ?
(1) Capacity to
consent to sex?
Outcome 3
Social contact with X
facilitated in best interests
May have sex with X then
(MM, LM)
Outcome 1
No sex capacity
No best interests
No sex.
(MAB, AB, H)
Outcome 2
Public authority may
not interfere with
any decisions about
contact or sex
YES NO
If also a social contact
welfare issue
NOYES (2b) Best interests
to have
social contact
with X?
Outcome 4
May be prevented from
contact with X in best
Interests.
No sex with X
YES NO

24. Allow make mistakes
 “The intention of the Act is not to dress the
incapacitous person in forensic cotton wool but
allow them as far as possible to make the same
mistakes that all other human beings are at liberty
to make and not infrequently do”

25. Sexual capacity judgments
Pre-MCA
 X CC v MAB [2006] 2 FLR 968
 LA X v MM [2009] 1 FLR 487
Criminal
 R v Cooper [2009] 1 WLR 1786 (HoL)

26. Post-MCA
 D CC v LS [2010] Med LR 499
 DBC v AB [2011] 3 All ER 435
 LA v H [2012] EWHC 49
 YLA v PM [2013] EWHC (CoP)
 LA v TZ [2013] EWHC 2322 (CoP)
 City of York [2013] EWCA Civ 478
 IM v LM & ors [2014] EWCA Civ 37