Not Like Cranmer: Changes to Test for Capacity to Consent to Sex A Local Authority V TB

01 Jan 2018

Public Law and Judicial Review

Mostyn J has refined the approach of the courts to the question of what information a person must be able to understand if they are to be able to consent to sexual relations. In so doing he has revisited his own decision in D Borough Council v AB [2011] EWCOP 101, commenting: “Although I am not going so far as figuratively to hold my hand in the flames like Cranmer I have had cause to reconsider my previous opinion”.

The evidence showed that P has barely an inkling of the health risks involved. She was unable to link sex to pregnancy. Indeed she had virtually no idea how her babies came to be in her tummy (as she put it). Although she found sex enjoyable and comfortable she had no idea that she had a choice and could refuse. Indeed the attitude of her husband, based on his culture and religion, was that he had a right to seek sex from her and that it was her duty to submit.

In A Local Authority v TZ [2013] EWCOP 2322 Baker J concluded that in the case of a person in respect of whom it is clearly established that he or she is homosexual it is ordinarily unnecessary to establish that the person has an understanding or awareness that sexual activity between a man and a woman may result in pregnancy. In this case counsel for the father argues that because TB has had an IUD inserted she is in an equivalent position.
However Counsel for the local authority Bryan McGuire QC rightly captured the unreality of this debate in his final submissions when he said
“But following this link produces nonsensical results. What if a woman happens to have fertility issues? Or is already pregnant? Or is beyond childbearing age? Would knowledge of this link be irrelevant for a man? “
Accordingly he concluded “I have come to the conclusion that the third criterion of risk of pregnancy should not be a separate one. Rather it should be subsumed into the second which should simply be expressed as: “that there are health risks involved””.
Moreover her revised his previous view in finding that the relevant information for MCA purposes should include an awareness that lawful sex requires the consent of all parties and that that consent can be withdrawn at any time.
Accordingly when determining the question of sexual capacity under the MCA the relevant information as referred to in section 3(1)(a) comprises an awareness of the following on the part of P: 1.the mechanics of the act; and 2.that there are health risks involved; and that he or she has a choice and can refuse.
Moreover this formulation had the advantage of aligning the criminal and the civil law. She comprehensively failed on ii) and on iii) and thus did not have capacity to consent to sex. The learned Judge also provided, at paragraphs 47 onwards, further explanation of, and a defence of, the line taken in his recent case of Rochdale Metropolitan Borough Council v KW in which he found that P, who was all-but housebound and incapacitated, was not deprived of her liberty in any meaningful sense.

These are welcome changes. It would be wrong to say that someone had the capacity to consent to sex if they did not understand the information that they could withhold or withdraw consent. It is also desirable that the civil and criminal law on capacity and consent should be closely aligned. Likewise it would be troubling if the effect of having a coil fitted (something which P did not have the capacity to consent to) was to remove any need to understand the link between sex and pregnancy.

Bryan McGuire QC appeared for the Local Authority.