Lancashire County Council v BC & Anor (Capacity: Residence and Engagement in Sexual Relations)
Neutral Citation Number: [2026] EWCOP 18 (T3)
Case No.
IN THE COURT OF PROTECTION
Date: 15/04/2026
Before :
LANCASHIRE COUNTY COUNCIL
The Applicant
-and-
BC (by her litigation friend, the Official Solicitor)
EF
The Respondents
Lancashire CC v BC (Capacity: Residence and Engagement in Sexual Relations)
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Francesca Gardner (instructed by the Local Authority) for the Applicant
Sophia Roper KC and Pippa Pudney (instructed by Simpson Millar) for the First Respondent, BC, by her litigation friend, the Official Solicitor
Rebecca Clark (instructed by Brodie Jackson Canter) for the Second Respondent
Hearing dates: 11-12 March 2026
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JUDGMENT
This judgment was delivered in public but a transparency order is in force. The judge has given leave for this version of the judgment to be published on condition that (irrespective of what is contained in the judgment) in any published version of the judgment the anonymity of BC, EF and members of BC’s family must be strictly preserved. All persons, including representatives of the media and legal bloggers, must ensure that this condition is strictly complied with. Failure to do so may be a contempt of court.
Introduction
The outstanding issues for me to decide are whether BC has capacity to make decisions about residence and engagement in sexual relations. Consideration of those issues requires the court to address the consistency of determinations of capacity in different areas of decision-making and, in relation to engagement in sexual relations, BC’s past propensity to dissociate during sexual intimacy.
BC is a woman in her early 30’s who was born into and brought up in an ultra-orthodox religious community. She led a very sheltered life in which, as she has said, her opportunities for contact outside the community and to make decisions for herself were very limited. She left that community about eight years ago but has since had little contact with others save for her relationship with EF, the Second Respondent. BC attended the hearing in person and spoke to me in open court. She was measured and courteous and it was a pleasure to have her in court. EF also attended the hearing and was represented.
Background and Evidence
The court heard from Dr Camden-Smith, Consultant Psychiatrist, who has provided reports on BC’s capacity having assessed her in October 2025. She confirmed that BC has been diagnosed with “autism spectrum condition, complex PTSD, cerebral palsy, partial deafness, Reynard’s syndrome, diplegia and agoraphobia”. Dr Camden-Smith confirmed her agreement with the diagnoses of autism spectrum condition and complex PTSD. It must not be assumed that BC is not intelligent – she is. She achieved good GCSE results when at school and in her late 20’s gained a place at university. BC reported to Dr Camden-Smith that she had been sexually abused by a teenage family friend during her childhood. She had been bullied at school. She married a man from her community when aged 21 and suffered mental, emotional and sexual abuse in that relationship which lasted only a matter of months. She has reported being sexually abused by another male member of the community whilst going through her divorce.
BC began her relationship with EF, who comes from the same ultra-orthodox community, some ten years ago. He too was previously married. He has two children of that marriage. As they began a relationship, BC says that her father warned her that if they were to continue it then she “wouldn’t have a family.” BC separated from EF and went to live in London but they met up again and became engaged. BC has reported that they had sexual relations but “something did not feel right … now I know it was because he was sexually abusing me.” She told Dr Camden-Smith that EF would touch her sexually and continue to do so without her consent and would not stop having sex with her even when she asked him to stop:
“[BC] has said that she would freeze when having sex with him, almost certainly a dissociative response from her previous trauma.”
BC and EF married in a religious ceremony but they are not married in civil law. They moved in together. Whilst they were offered some practical support by BC’s father and have received some financial support from the community in which they were both raised, they have led a very isolated life together. EF’s mental health deteriorated and he currently attends a support group for people with mental health problems. The couple got into financial difficulties and EF was assaulted by a man in their home after a debt had not been paid.
BC reported to Dr Camden-Smith that:
“…she first learned about the abuse she had been experiencing her whole life when she did safeguarding training as part of her university degree. She told me that she suddenly recognised that she had been subject to abuse her whole life but said that she did not have an emotional response, just thinking ‘oh, that’s me’ and then moving on with her life. It was only after her partner was assaulted in their home that she started to really struggle with her memories of abuse.”
BC was admitted to hospital in 2022 expressing suicidal ideation. In May 2024 she was admitted to hospital following an overdose. She was detained under the Mental Health Act 1983. On the basis of BC’s reports, the Local Authority became very concerned that she was suffering domestic abuse including financial abuse within her relationship with EF. She was transferred to a care home, GG, for rehabilitation, where she continues to live. It appears from the evidence that BC receives a high standard of care at GG, including structured support and valuable therapeutic intervention.
Dr Camden-Smith reported that BC has difficulty meeting her nutritional needs. She does not recognise when she is hungry and needs reminding to eat. “She has difficulty with executive functioning and with sequencing and co-ordinating her activities of daily living.”
BC has two dogs whom she is training to be psychiatric assistance dogs. They live with EF but visit BC weekly. She told me that she is frustrated that there is nowhere she can take them to give them proper training.
Dr Camden-Smith advised the court that she is entirely confident that BC fully meets all the diagnostic criteria for a diagnosis of autism which is not associated with any cognitive or intellectual impairment. She is also confident that BC meets the diagnostic criteria for a diagnosis of complex PTSD which, for her, is characterised by hypervigilance, periods of dissociation, emotional dysregulation and thoughts of suicide and self-harm. Dr Camden-Smith also noted BC’s life experiences including her sheltered upbringing, the control exercised over her within the family and by authority figures, her social isolation, and repeated sexual abuse:
“[BC] has said that because she has experienced abuse throughout her life, she has been unable to recognise when this has happened with [EF]. It is unclear to what extent [BC]’s experience of coercion and control impacts her decision-making ability, separate to her diagnoses which have an impact on her cognitive functioning.
…
[BC] is extraordinarily passive and susceptible to what other people tell her. She has little to no faith in her own decision-making and personal agency. Her understanding of what others tell her is incredibly literal and impacted by her limited life experience. She is extraordinarily suggestible and is particularly vulnerable to unquestioning belief of those in positions of authority and power.”
Dr Camden-Smith’s conclusions were:
BC is unable to make decisions about this litigation or to conduct proceedings: she is unable to understand some of the relevant information including the ways in which the court will make decisions. This is due to a “combination of her complex PTSD and autism exacerbated by her life experiences.” In oral evidence she clarified that but for BC’s autism and complex PTSD she would be able to conduct litigation and make decisions in the other the other areas under consideration.
BC understands the difference between living somewhere and visiting it. She could explain her previous decisions to live in various places. She can manage finances related to home occupation. She could describe risks involved in returning to her home with EF, but her understanding was largely limited to the risks of a further overdose because her pills have been stored there (at her care home her access to medication is controlled). BC told Dr Camden-Smith that she needs to stay in GG “until I don’t want to kill myself.” Dr Camden-Smith’s conclusion was:
“In my opinion, [BC] has capacity to make decisions about residence, provided that the options presented to her are capable of meeting her care and support needs. It is my opinion that she lacks capacity to make decisions about her care and support. [BC]’s goal is to return to living with her partner … and she would like to be able to start spending time there.
[BC] is a vulnerable adult in this domain by virtue of her Autism and complex PTSD. She is vulnerable to coercion by her partner, [EF], or potentially by others. At present, my understanding is that [EF]is not placing pressure on [BC] to return to live at home full-time, recognising that she is receiving necessary treatment and support at [GG].
In my opinion, [BC] does not have capacity to make decisions about her care and support needs. [BC]’s care and support needs cannot currently be met at her home, and therefore a return home is not currently an available option for her.”
As to decisions about care and support, Dr Camden-Smith concludes that in broad terms BC understands that she is receiving care and support and what it is for. She is receiving Dialectical Behaviour Therapy (DBT), occupational therapy, and medication. She is aware of the requirement for staff to support her when leaving GG, but:
“In my opinion [BC] lacks capacity to make decisions about her care and support. In part this is due to her inability to understand the intangible ways in which she requires support, and her lack of understanding of the ways in which her autism and complex PTSD interact with her particular set of circumstances to impair her functioning. She is working on this, and my hope is that she will gain capacity in this domain, however this will take some years and is likely to be imperfect at best. Psychoeducation, medication and psychological therapy will support [BC] to gain capacity in this area; however, she requires a lengthy period of stability in which to engage in these.
She is also unable to use and or weigh the information that she does understand due to her overwhelming and obsessive wish to end her life. This is a direct consequence of her complex PTSD. In some ways her autism is protective, in that she has identified two ways in which she intends to end her life and does not currently appear at risk from other methods. This is, of course, liable to change.
It is therefore my opinion that she will not gain capacity in this domain in a timescale that is practicable for current proceedings.”
In her oral evidence, Dr Camden-Smith was more optimistic about BC gaining capacity. She suggested that capacity be re-assesses in all areas in six months’ time.
As to making decisions about contact with others, Dr Camden-Smith advised that BC’s social circle is “incredibly small”. She is able in retrospect and with support to identify that she has been subject to various forms of abuse from within the community and, potentially, from EF but “she has great difficulty in identifying it in the moment.” She is engaging in the Freedom Project to support her to identify abuse but her autism and limited experiences combine to frustrate any learning of what constitutes a normal or healthy relationship.
“Her understanding of what is abusive is incredibly literal and often lacking in context. For example, she has learned that alienating someone from their family and friends is a sign of abuse and is coercive control. She then applies this to [EF]’s actions in advising her not to have contact with her family and concludes that this behaviour is therefore abusive. It may well be. However, a different interpretation is that [EF]is aware of how difficult it is for [BC] to see her family, the effect it has on her emotionally, and the triggers for her complex PTSD and is therefore attempting to keep her safe by advising her not to see her family. Similarly, keeping her away from the community in which she was abused could be seen as a protective mechanism.”
Ms Clark for EF has advised the court that, since the conclusion of the evidence but before written submissions, EF himself has been diagnosed with both autism and ADHD. He may therefore have a literal understanding of risks to BC and how to keep her safe which she, in turn, interprets as abuse. Dr Camden-Smith concluded:
“In my opinion, [BC] lacks capacity to make decisions about contact with others due to her inability to identify when she is not safe from others, and her inability to understand abuse. She is working on this, and my hope is that she will gain capacity in this domain, however this will take some years and is likely to be imperfect at best. Psychoeducation, medication and psychological therapy will support [BC] to gain capacity in this area; however she requires a lengthy period of stability in which to engage in these.
It is therefore my opinion that she will not gain capacity in this domain in a timescale that is practicable for current proceedings.”
Again, in her oral evidence Dr Camden-Smith advocated a re-assessment of capacity in all areas in six months’ time.
As to capacity to engage in sexual relations, Dr Camden-Smith’s opinion in her main report was:
“[BC] is aware of the mechanics of the sex act. She is aware that a foreseeable consequence of sex is that the woman might become pregnant, and that there are ways of preventing this. [BC] told me that she doesn’t currently wish to get pregnant, but that she might do in the future. She told me that she would need to have financial and emotional stability before she could think of having children.
[BC] was aware that she could contract sexually transmitted diseases from having sexual contact. She was aware that contraception would not protect her from sexually transmitted infections and that her partner would need to wear a condom. She told me that she and [EF] have been in a monogamous relationship for over a decade.
[BC] was aware that both parties need to consent prior to sexual relations, and that either party can withdraw consent at any time. She told me that she was very distressed by [EF] not stopping when she told/asked him to. She said to me ‘I would like to be able to have a conversation with [EF] about having sex. He must stop when I say he should stop’. [BC] was aware that there were some people who could not consent to having sexual relations due to a lack of capacity such as due to an intellectual disability.
[BC] reports that sometimes when she used to have sex with [EF], she would just freeze and be unable to move or respond. She also said that she would often self-harm after sex and did not know why. She recognises now that this is as a consequence of her complex PTSD.
In my opinion, [BC] has capacity to engage in sexual relations, however she may lose this capacity in a dissociative state.
[BC] is a vulnerable adult in this domain by virtue of her Autism and complex PTSD. She is vulnerable to coercion by her partner, [EF], or potentially by others. She herself has identified that her partner has repeatedly coerced her to engage in sexual activity that she does not wish to enter into willingly.”
Finally, Dr Camden-Smith concluded that BC does have capacity to manage her property and financial affairs but would benefit from advice if she were, for example, to inherit a large sum of money. She is vulnerable to financial coercion and control.
It is important to note that EF denies any sexual or other abuse of BC. It is possible that she has a too literal understanding of behaviour which might be categorised as abuse from various courses she has undertaken. Her reports of abuse have been assumed to be true. BC wishes, however, to return home to live with EF and to resume their relationship. I have not made any determination about whether their relationship has or has not involved sexual abuse.
All parties put questions to Dr Camden-Smith. Some of those written questions and her cross-examination focused on the interaction between BC’s autism and complex PTSD with her life experiences, as well as the episodes of dissociation. Dr Camden-Smith advised the court that concrete learning and experiential learning are particularly important for autistic people but BC has had only narrow life experiences and very few if any experiences of healthy non-abusive relationships. As she put it, “the rigidity of her cultural background amplified the rigidity of her autism and vice-versa. Autism is, of course, lifelong and immutable, however [BC] will be able to learn from experience and educational opportunities which will, in due course, mitigate the impact of her childhood.” She told the court that this will be a lengthy process. She needs support to learn how to stay safe in relationships and how to manage her emotional dysregulation and suicidal ideation. In relation to suicidal ideation there has been considerable progress thanks to the regime at GG but there is much work still to be done.
In response to questions about BC “freezing” when engaging in sexual relations, Dr Camden-Smith advised that BC’s dissociative state arises “solely as a consequence of her complex PTSD and that in such a state BC would be unable to understand, retain or use/weigh the relevant information.” She further advised in writing, and maintained the opinion in her oral evidence, that:
“[BC] is likely to dissociate in any and all sexual encounters. Dissociation is less likely if [BC] feels safe with the person with whom she is having sex and if she trusts them. For this reason, dissociation is probably least likely with [EF]. With provision of the above therapy and joint work with [EF] and [BC], it is more likely than not that [BC] will be able to enter into an intimate relationship with [EF] in which she does not dissociate.
During periods of dissociation, [BC] will lose capacity.”
In her oral evidence Dr Camden-Smith said that she would be very worried about BC having sex “tomorrow” because of the likelihood of dissociation during sexual activity but that dissociation was not inevitable and that there are factors which would increase or reduce the risk of it occurring. I accept that it is difficult to be precise about the level of risk of dissociation because a controlled experiment cannot be carried out and the evidence of dissociation during sexual relations comes from BC alone. It is historical since she has not had sexual relations for a number of years. Dr Camden-Smith advised that if BC feels confident, safe and in control in a trusting relationship, and that she is being listened to, then she would be less likely to dissociate. She could be triggered to dissociate by fear, loud noises, poor sleep, alcohol, hunger and aversive memories. She advised that if BC is assessed as lacking capacity to make decisions about engagement in sexual relations or any other area of decision-making, she should be re-assessed in six months’ time after engagement in further therapy and supportive work to aid her to understand, retain and weigh or use relevant information.
Within the bundle of documents put before the court were capacity assessments by psychiatrists commissioned for the purpose of standard authorisation under the DOLS regime and which post-dated Dr Camden-Smith’s first report and her response to written questions. Those psychiatrists assessed BC as having capacity to make decisions about whether or not she should be accommodated in her current care home for the purpose of being given the proposed care and/or treatment. Dr Camden-Smith was not moved to change her opinion having considered the assessments. The assessments were for a specific purpose and narrow in their ambit.
The court heard evidence from LM, BC’s allocated social worker. She informed the court of BC’s care and therapeutic regime at her current care home, GG. BC is on a graduated programme which it is hoped will soon allow her to leave the grounds on her own. Presently she goes to the boundary by herself and only outside the ground and to a local shop when shadowed. Likewise she has a graduated plan to encourage independence with regard to medication but she is not yet at a stage when she can keep medication in her possession. LM believes that BC’s plan to return home to live independently by May 2026 is unrealistic given that she needs a period of up to a further year at GG. BC has rejected the idea of supported living because she wants to go home. She needs care and support not only for practical matters such as planning her food intake, but also intangible needs.
EF has provided written witness evidence and submissions through his Counsel. His position is that BC is well supported in her current care home and is making good progress. It would not be safe for her to return home at present but all steps should be taken to increase her independence with a view to her returning home to live with EF in the future. He found BC’s self-harm and suicidal thoughts and actions to be alarming and he does not believe BC is ready to leave GG. When she does, the first move should be to a step-down facility rather than an immediate return to independent living with him or otherwise. The current levels of supervision during his contact with BC protect him from any false accusations. Initially, concerns about his conduct and his control of BC were such that the Local Authority applied for material to be withheld from him. Concerns about his having been financially and psychologically abusive of BC have largely, if not wholly, dissipated and he is seen as having a potentially positive role in BC’s recovery and future living arrangements.
The Legal Framework
The test for capacity is in Mental Capacity Act 2005 (MCA 2005) ss2 and 3, to which the principles in s1 apply:
“s1 The principles
The following principles apply for the purposes of this Act.
A person must be assumed to have capacity unless it is established that he lacks capacity.
A person is not to be treated as unable to make a decision unless all practicable steps to help him to do so have been taken without success.
A person is not to be treated as unable to make a decision merely because he makes an unwise decision.
An act done, or decision made, under this Act for or on behalf of a person who lacks capacity must be done, or made, in his best interests.
Before the act is done, or the decision is made, regard must be had to whether the purpose for which it is needed can be as effectively achieved in a way that is less restrictive of the person's rights and freedom of action.
s2 People who lack capacity
For the purposes of this Act, a person lacks capacity in relation to a matter if at the material time he is unable to make a decision for himself in relation to the matter because of an impairment of, or a disturbance in the functioning of, the mind or brain.
It does not matter whether the impairment or disturbance is permanent or temporary.
A lack of capacity cannot be established merely by reference to—
a person's age or appearance, or
a condition of his, or an aspect of his behaviour, which might lead others to make unjustified assumptions about his capacity.
s3 Inability to make decisions
For the purposes of section 2, a person is unable to make a decision for himself if he is unable—
to understand the information relevant to the decision,
to retain that information,
to use or weigh that information as part of the process of making the decision, or
to communicate his decision (whether by talking, using sign language or any other means).
A person is not to be regarded as unable to understand the information relevant to a decision if he is able to understand an explanation of it given to him in a way that is appropriate to his circumstances (using simple language, visual aids or any other means).
The fact that a person is able to retain the information relevant to a decision for a short period only does not prevent him from being regarded as able to make the decision.
The information relevant to a decision includes information about the reasonably foreseeable consequences of—
deciding one way or another, or
failing to make the decision.”
Hence, because no best interests decision can be made on behalf of a person to consent to sexual relations on their behalf (and therefore to decide to engage in sexual relations), a determination that a person lacks capacity to decide to engage in sexual relations has the profound consequences for them, effectively depriving them of a sex life.
The Supreme Court's decision in A Local Authority v JB [2021] UKSC 52, [2022] 3 All ER 697 ("JB"), and the Court of Appeal judgment of Baker LJ in the same case, [2020] EWCA Civ 735, [2021] 1 All ER 1103, provide this court with a definitive guide to applying the test for capacity to make decisions to engage in sexual relations. At paragraphs [63] to [77] of his judgment in JB, Lord Stephens, with whom the other Justices agreed, set out the correct approach to determining capacity in all cases, endorsing the judgment of McFarlane LJ in York City Council v C [2013] EWCA Civ 478; [2014] Fam 10. MCA 2005 s2(1) provides a single test for capacity which falls to be interpreted by applying the remaining provisions of ss2 and 3:
"For the purposes of this Act, a person lacks capacity in relation to a matter if at the material time he is unable to make a decision for himself in relation to the matter because of an impairment of, or a disturbance in the functioning of, the mind or brain."
The "material time" is the specific time when the decision has to be made. Having identified the matter in respect of which decision is made, and the information relevant to the decision, which will include the reasonably foreseeable consequences of making or not making the decision, the first question is whether P is unable to make a decision for himself in relation to the matter (the functional test). If so, then,
“[78] … the second question that the court is required to address under s 2(1) is whether that inability is 'because of' an impairment of, or a disturbance in the functioning of, the mind or brain. The second question looks to whether there is a clear causative nexus between P's inability to make a decision for himself in relation to the matter and an impairment of, or a disturbance in the functioning of, P's mind or brain.
[79] The two questions under s 2(1) are to be approached in that sequence."
Prior to the judgments of the Court of Appeal and Supreme Court in JB, capacity in relation to sexual matters had been framed as a question of whether P had capacity to consent to sexual relations, mirroring the wording of MCA 2005 s 27(1)(b). Following JB, the question to address is whether P has capacity to engage in sexual relations. At [84] Lord Stephens approved the formulation of the information relevant to a decision to engage in sexual relations given by Baker LJ at paragraph [100] of his judgment:
“… the information relevant to the decision [to engage in sexual relations] may include the following:
the sexual nature and character of the act of sexual intercourse, including the mechanics of the act;
the fact that the other person must have the capacity to consent to the sexual activity and must in fact consent before and throughout the sexual activity;
the fact that P can say yes or no to having sexual relations and is able to decide whether to give or withhold consent;
that a reasonably foreseeable consequence of sexual intercourse between a man and woman is that the woman will become pregnant;
that there are health risks involved, particularly the acquisition of sexually transmitted and transmissible infections, and that the risk of sexually transmitted infection can be reduced by the taking of precautions such as the use of a condom.' (Emphasis added.)"
Lord Stephens remarked that he had added emphasis to the word "may" because Baker LJ next considered at paras [101] to [103] of his judgment whether the information relevant to the decision to engage in sexual relations must always include all of the matters identified in para [100] without any room to tailor the relevant information to accommodate individual characteristics or circumstances. For example, (4) may not be relevant information for the decision of a homosexual man. Although Baker LJ had refrained from deciding whether the information could be tailored, Lord Stephens noted:
"[72] If the formulation of "the matter" for decision can properly be described as person-specific, then the information relevant to the decision may be different, for instance depending on the characteristics of the other person, see TZ at para 55 (risk of pregnancy resulting from sexual intercourse is not relevant to a decision whether or not to engage in, or consent to, sexual relations with someone of the same sex) or the risks posed to P by an individual who has been convicted of serious sexual offences, see York City Council v C at para 39. Moreover, the practicable steps which must be taken to help P under section 1(3) MCA may be informed by whether "the matter" in relation to sexual relations may be described as person-specific. For instance, it might be possible to help P to understand the response of one potential sexual partner in circumstances where he will remain unable to understand the diverse responses of many hypothetical sexual partners. Furthermore, if the matter can be described as person-specific then the reasonably foreseeable consequences of deciding one way or another (see section 3(4)(a) MCA and para 73 below) may be different. There may, for example, be no reasonably foreseeable consequence of a sexually transmitted disease in a long-standing monogamous relationship where one partner has developed dementia. Finally, the potential for "serious grave consequences" may also differ."
In ZX (Capacity to Engage in Sexual Relations) [2024] EWCA Civ 1462, Baker LJ referred to my own decision in Re PN (Capacity: Sexual Relations and Disclosure) [2023] EWCOP 44, and said:
“The approach to be followed when assessing capacity in this area under sections 2 and 3 of the MCA is as prescribed by the Supreme Court in JB. It has not been materially amended by any subsequent decision. The decision in Re PN did not change the law. In some cases, as suggested by Poole J, it may be appropriate to focus on whether P is able to use the relevant information "in the moment", (i.e. when he is initiating, or about to initiate, sexual activity with another person) and, if not, whether that inability is due to an impairment of, or disturbance in, the mind or brain. The second limb of the information specified in JB includes not only "the fact that the other person must be able to consent to the sexual activity" but also that the other person "must in fact consent before and throughout the sexual activity". That is consistent with a focus on whether P is able to use the information "in the moment". It is also entirely consistent with the observation of this Court in Re M, endorsed by the Supreme Court in JB, 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".”
In A Local Authority v TZ [2013] EWCOP 2322, Baker J noted some specific considerations that apply to capacity in relation to sexual relations (he was then concerned with capacity to consent to sexual relations not capacity to decide to engage in sexual relations, but the considerations apply with equal force):
“The reported cases highlight several other matters to be borne in mind when assessing capacity to consent to sexual relations. First, as Mostyn J observed in D Borough Council v AB at paragraph 11:
"…the court must tread especially carefully where an organ of the state proposes that a citizen's ability to perform, in a non-abusive way, the sex function should be abrogated or curtailed. It involves a very profound aspect of civil liberties and person autonomy."
Secondly, as Hedley J observed in A Local Authority v H [2012] EWHC 49 (COP), [2012] 1 FCR 590 paragraph 30, concerning the question of weighing and using information relevant to the capacity to consent to sexual relations:
"This is a difficult concept in the context of human sexual relations since choices are generally made rather more by emotional drive and instinct than by rational choice. Of course there is a rational element that has been for most people assimilated into instinct and the control of the emotional drive."
Thirdly, whilst the court will commonly commission expert evidence to assist on the analysis of capacity, the roles of the court and expert are distinct and it is the court that is in the position to weigh up the expert evidence against its findings on the other evidence including, in appropriate cases, the evidence of P himself: see A County Council v K, D and L [2005] EWHC 144 (Fam) [2005] 1 FLR 851 per Charles J.
Finally, as I observed in PH v A Local Authority and Z Ltd [2011] EWHC 1704 (Fam) at paragraph 16 and in CC v KK [2012] EWHC 2136 (COP) at paragraph 25, the court must guard against the danger that, for understandable reasons, it is drawn towards an outcome that is more protective of the adult and thus fails to carry out an assessment of capacity that is both detached and objective.
It is well established that capacity is decision-specific and must be assessed in relation to the specific decision at the time the decision needs to be made – see for example, MacDonald J in Kings College NHS Foundation Trust v C&V [2015] EWCOP 80.
Judges have identified the information relevant to decision-making about residence, care, and contact (LBX v K [2013] EWHC 3230), sexual relations (JB (above)), conduct of litigation (Masterman-Lister v Brutton & Co [2003] 3 All ER 162, and other areas. I accept that the relevant information may vary according to the specific circumstances of each case but these lists provide helpful and well-established guidance In LBX Theis J set out information relevant to decisions about residence at para. 43:
what the two options are, including information about what they are, what sort of property they are and what sort of facilities they have;
in broad terms, what sort of area the properties are in (and any specific known risks beyond the usual risks faced by people living in an area if any such specific risks exist);
the difference between living somewhere and visiting it;
what activities L would be able to do if he lived in each place;
whether and how he would be able to see his family and friends if he lived in each place;
in relation to the proposed placement, that he would need to pay money to live there, which would be dealt with by his appointee, that he would need to pay bills, which would be dealt with by his appointee, and that there is an agreement that he has to comply with the relevant lists of "do"s and "don't"s, otherwise he will not be able to remain living at the placement;
who he would be living with at each placement;
what sort of care he would receive in each placement in broad terms, in other words, that he would receive similar support in the proposed placement to the support he currently receives, and any differences if he were to live at home; and
the risk that his father might not want to see him if L chooses to live in the new placement.”
At paras. 45-47 Theis J set out information relevant to decision-making about contact with others:
I agree also with the analysis of the Official Solicitor as to contact in para.13 save for one matter. So I agree with the first one, who they are and in broad terms the nature of his relationship with them; secondly, what sort of contact he could have with each of them, including different locations, differing durations and differing arrangements regarding the presence of a support worker; and, thirdly, the positive and negative aspects of having contact with each person. This will necessarily and inevitably be influenced by L's evaluations. His evaluations will only be irrelevant if they are based on demonstrably false beliefs. For example, if he believed that a person had assaulted him when they had not. But L's present evaluation of the positive and negative aspects of contact will not be the only relevant information. His past pleasant experience of contact with his father will also be relevant and he may need to be reminded of them as part of the assessment of capacity.
In relation to the last aspect under contact, which is what might be the impact of deciding to have or not to have contact of a particular sort with a particular person, I think there needs to be some reference in there to family in that family are in a different category, and I will hear submissions in relation to adjustments to that aspect.
I agree also that in relation to contact the matters set out in para.14 are not relevant: abstract notions, like the nature of friendship and the importance of family ties, subject to the point that I have just made relating to recognising the family in the last of the agreed aspects; the long-term possible effects of contact decisions, for the reasons I have already given in relation to s.3(4); and risks which are not in issue, for example, those mentioned by Dr. Hall, such as the risk of financial abuse.”
As Theis J’s analysis touches upon, one of the fundamental principles of the MCA 2005 is that “a person is not to be treated as unable to make a decision unless all practicable steps to help him to do so have been taken without success” - s1(3). Thus, P ought to be made aware of the options and relevant information before it can be determined whether they are able to understand, retain, and weigh or use that information.
Analysis and Conclusions
I remind myself that prior to her mental health difficulties becoming particularly troublesome from 2022, BC had functioned as an adult in society, albeit with some difficulty. She had lived away from her childhood home, both with EF and with others. She had gone to university. Her mental health later deteriorated significantly and she was ultimately detained under the Mental Health Act 1983. She is still recovering from that deterioration but her mental health has clearly improved.
The parties agree and the evidence before me establishes that the presumption of capacity is not displaced in relation to BC’s decision-making about her property and financial affairs.
The parties agree that it has been established by the evidence that BC lacks capacity to conduct these proceedings and to make decisions about her care and support and contact with others. I agree. With regard to decisions about care and support, I accept the conclusions of Dr Camden-Smith that BC is currently unable to understand and weigh or use the relevant information because of her autism and complex PTSD which are impairments or disturbances in the functioning of her mind or brain. However, BC is making progress under the helpful regime at GG. She can be supported further, potentially so that she acquires or regains capacity to make decisions for herself about her care and support. BC has the potential to learn from new experiences and to adapt to her complex PTSD with therapy. Graded planning, exposing BC to incremental independence and risk, as has been adopted in relation to leaving the grounds of her care home, and administration of medication, can be used in other ways to support her understanding and decision-making abilities.
It is often said that the bar should not be set too high when determinations of capacity or incapacity are made. But it might equally be said that the net of incapacity should not be cast too wide. Practitioners and judges often categorise decision-making as being about “residence”, “contact with others” etc. but those can be broad categories covering numerous different kinds of decision. A person’s contact with others might range from deciding whether to enter a shop to make a simple purchase or deciding whether to co-habit with someone. In cases of profound brain damage, for example, it may be clear that P has not and never will have capacity to make any decisions about, say, residence or contact with others. In more borderline or nuanced cases, P might have capacity to make certain decisions about residence or contact but not others. On the one hand, it would be impractical to define decision making too narrowly such that the court had to consider separately scores of different kinds of decision P will be likely to face. On the other hand, if the description of the decision to be made is drawn too widely then there is a risk that autonomy is removed from a person who in fact has capacity to make some decisions under that description for themselves. The court has to keep firmly in mind P’s rights to make decisions for themselves unless it is established that they do not have the mental capacity to do so, and the practical implications of findings for those caring for and supporting P.
As the authorities establish, it is important to identify the decisions that P faces: what decisions is P likely to have to make and/or which decisions are of significance for them. Hypothetical decisions which may arise in the future may well not be of relevance. The court must identify the “matter” in respect of which a decision is to be made. In relation to decision-making about contact with others, I sound a note of caution before accepting the unanimous view of the parties that BC lacks capacity. BC has decisions to make about contact with carers and staff at GG or, if she were to leave, elsewhere; contact with others in the community; about contact with her family; and about contact with EF. With regard to contact with others, I believe that, without dividing up the area of decision-making too finely, a declaration of incapacity should not overreach. In my judgement, the evidence does not support a finding that BC lacks capacity to make decisions about contact with others which do not engage concerns about her safety or vulnerability to abuse from others. Dr Camden-Smith’s opinion about BC’s capacity to decide on contact with others was grounded on BC’s “inability to identify when she is not safe from others, and her inability to understand abuse.” Thus, it is not proved that BC lacks capacity to decide on contact with others when there are no such issues, for example, going into a shop to buy an item.
BC is making good progress and any declarations of incapacity should be interim only. When BC’s capacity is re-assessed, it is important that suitable work has been done with her to provide her with the relevant information and the choices available to her. As far as possible she needs to have had experience of different options. Just because someone has been found to lack capacity to have contact with others does not mean that it is not in their best interests to be allowed to go into a shop alone or to meet their life partner without supervision provided suitable safeguards are in place. Here, BC’s progress may not be without setbacks, but she needs to be exposed to more experiences in order to learn to make decisions for herself.
Residence
In relation to residence, the decisions which BC faces are whether to remain at GG, to move to supported living, or to return home to live independently but with support. In each case she will require care and support and currently she lacks capacity to make decisions for herself about care and support. She also lacks capacity to decide about contact with others when her vulnerability to abuse and safety are engaged.
In Re CLF (Capacity: Sexual Relations and Contraception) [2024] EWCOP 11, I held at para. 37:
“There is a risk, in my judgement, in dissecting areas of decision-making such that it becomes practically impossible for those caring for P to implement the assessments of capacity made. It would make it difficult for a Local Authority to implement a care plan if it had been determined that P had capacity to make decisions on, for instance, eight aspects of her care, but not on five others. Furthermore, the process of assessing capacity might become unwieldy. However, in this instance, Dr Rippon's evidence is that CLF would have capacity to make decisions about her residence but for the element of choosing the right level of care within those places. I can see that if care decisions could be removed from decision-making about residence, then a declaration that CLF had capacity to make decisions about residence provided that the care arrangements for each available residential option were made for her, would not necessarily be incompatible with a declaration that she lacks capacity to make decisions about her care. However, my concern is that the position is more complex than Dr Rippon has assumed. As well as compatibility with the declaration of incapacity to make decisions about care, I also have to consider compatibility with my finding that CLF lacks capacity to make decisions about contact with others and to use the internet and social media. When considering the practical implications of the declaration regarding residence decision-making sought on CLF 's behalf by the Official Solicitor, I do not see how a declaration of even conditional capacity to make decisions about residence, is compatible with declarations of incapacity that I make. What might seem an attractive solution in theory, could not be possibly to put into practice. Much of the information relevant to a decision about residence, even with a care package determined for her, will be relevant to care, contact with others and the use of the internet and social media. A choice about whether to live in house A or house B will involve information about access to activities and the community which entails questions about risk; about the neighbours and any risks of conflict with them, or harm from them; about the layout of the house or flat, the ability to monitor CLF within the accommodation, including her use of social media and the internet. Care is not simply a "given": the choice of residence will itself determine the level and kind of care required. Similarly, decisions about contact with others will be contingent upon where CLF lives. Whilst wishing to protect CLF's autonomy as much as is possible, I cannot see a way in which to divorce her decision-making about residence from other decision-making in relation to which it is agreed, and I have found, CLF lacks capacity.”
In CLF the court was concerned with a young person who had moved from placement to placement, often absconding, and who was vulnerable to sexual exploitation from others. There were no concrete residential options before her. In that case I could not see how care decisions could be divorced from decisions about residence. Here, Ms Roper KC and Ms Pudney argue, concrete plans can be made for care and support in the three residential options which are or could foreseeably become available to BC. At present, EF is not willing for BC to live with him and so the only available options now are to remain at GG or to move to supported living. Clearly a care and support regime would have to be planned for any move to supported living. The choice of residence and the decision whether to move would then be open to BC within those circumscribed limits. In those circumstances BC would have capacity to make the decisions according to Dr Camden-Smith.
For the Local Authority, Ms Gardner refers to my decision in CLF and cautions that decisions about residence cannot be divorced from decisions about care and support and contact with others, in respect of which decision-making, BC lacks capacity. Any best interests decision about residence would necessarily take into account BC’s own wishes and feelings. It would not be practicable for decision-makers to divorce decisions about residence from decisions about care and support and contact with others.
In my judgement, the options for residence are inextricably linked to decisions about both care and support and contact with others. EF might say tomorrow that he would welcome BC home if she really wanted to return. Or BC might say that she would prefer to live in her own home alone rather than in a supported living placement. It is almost meaningless to say that BC has capacity to make decisions about residence when, absent capacity to make decisions about care, support, and contact with others, any choice about residence would be illusory. If BC’s best interests lay in her care and support being provided at placement X rather than placement Y, then BC could not choose to live at placement Y: she would not have a choice of residence open to her. If two step-down residences could be made available each with the same care and support and contact arrangements in place in accordance with BC’s best interests, then her preference would be given considerable weight but she would not be making a decision about residence in any meaningful sense. Amongst the information relevant to decisions about residence identified by Theis J in LBX are who would be living there and what care and support would be received in each place. BC cannot weigh or use for herself information relevant to decisions about residence such as who would be living there, what the contact arrangements would be at any placement, and what care and support would be provided. This inability is because of her autism and her complex PTSD. I find that she lacks capacity to make decisions about her residence.
Following the circulation of a draft of this judgment, Counsel for the First Respondent sought clarification of paragraph 40 above. Given that Dr Camden-Smith had advised the court that if BC were presented with two placements which met her assessed needs with a care package integral to the placements, BC could choose between them based on matters relevant to her. For the avoidance of doubt, I do not accept that BC would be able to make a choice between two placements where that involved decisions about what contact she would have with others where such decision-making involved issues relating to her safety and vulnerability to abuse from others. Such issues about contact might well be the relevant if the decision were between a placement living with two others or one where BC would live with twenty others, or if the behaviour of others at a placement open to BC might impinge on her safety. Likewise, the identity of care staff at a placement would be a matter relevant to both her care and support and her contact with others where such contact raised issues of BC’s safety and vulnerability. I accept that if all matters concerning care, support and contact with others (where such contact raised issues of safety and her vulnerability to abuse) were made on her behalf, there may be residual matters concerning residence which BC could decide for herself, but so much of the information relevant to decision-making on residence would be beyond her ability to understand, retain and weigh or use, that I do not believe it would be correct to call what was left, an ability to make decisions about residence. As I have already noted, it is unhelpful to identify “the matter” for decision too narrowly. For example, it would not be helpful to record that BC has capacity to decide about whether the garden at a placement were suitable for her dogs. Nevertheless, BC’s wishes and views about the suitability of a garden at a proposed or whether a room should have a carpet or not, will doubtless be given considerable weight. Indeed, she should be encouraged to make choices of that kind. But where the matter to be decided is where BC should live, I conclude that she does not currently have capacity to make decisions about that matter. I do not believe that it describes the matter for decision too widely to say that it is a decision about where BC should live. That is the matter for her to decide in the foreseeable future. She wants to leave by May 2026.
Engagement in Sexual Relations
In her assessment of BC, Dr Camden-Smith found that she was able to understand, retain, weigh or use, and communicate all the information relevant to making decisions about engaging in sexual relations. That ability was in relation to general decision-making about sexual relations, it was not specific to decision-making about sexual relations with EF. The issue, however, is that there is a prospect of BC suffering an episode of dissociation during the course of sexual relations which would cause her to lose capacity. It was difficult for Dr Camden-Smith to give a firm opinion on the likelihood of BC dissociating when engaged in sexual relations. She wrote that she was “likely” to do so “in any and all sexual encounters” but also told the court that it was “less likely” that she would do so with someone with whom she had an established and trusting relationship. It was also her opinion that with therapy and joint work, “it is more likely than not that [BC] will be able to enter into an intimate relationship with [EF] in which she does not dissociate.”
At para. 64 of JB Lord Stephens said:
“Capacity may fluctuate over time, so that a person may have capacity at one time but not at another. The “material time” within section 2(1) is decision-specific (see para 67 below). The question is whether P has capacity to make a specific decision at the time when it needs to be made. Ordinarily, as in this case, this will involve a general forward-looking assessment made at the date of the hearing. However, if there is evidence of fluctuating capacity then that will be an appropriate qualification to the assessment.”
One way of dealing with fluctuating capacity is to wait until the optimal time for P to make a decision – perhaps they will have capacity when they have slept well, have taken medication, or when supported by a trusted carer (see MCA Code of Practice paragraphs 3.11 to 3.16). Here, whilst steps can be taken to prepare the ground to reduce the chances of dissociation, there will remain a chance of dissociation during sexual relations when only BC and her partner will be present. The risk cannot be eliminated and third parties cannot be present to observe if the risk has materialised. Differing approaches to fluctuating capacity have been taken in previous cases.
In Cheshire West and Chester Council v PWK [2019] EWCOP 57 Hedley J considered capacity to make decisions in six areas: (but not including engagement in sexual relations):
It is important to recognise that in this case there is likely to be a particular focus on understanding relevant information, retaining it and using or weighing it. There will be many occasions when PWK is hampered by anxiety when those grounds are clearly made out. However, that will not always be the case. It may fluctuate. The question is how the law deals with that.
In Royal Borough of Greenwich v CDM [2018] EWCOP 15, Cohen J made a declaration of fluctuating capacity. There are, as it seems to me, two potential difficulties with that approach. The first is the question of whether the statute actually permits the making of a declaration in those terms. The second is that there is the practical problem of how those responsible for PWK’s care could in fact operate such a declaration on the ground. It is not, of course, my place to say that this decision was wrong in the circumstances of that case, but I do believe that PWK’s case requires a rather different perspective.
I take the liberty, if I may, of adopting the position that I sought to set out in my judgment in A,B & C v X, Y & Z [2012] EWHC 2400 (COP). There I was dealing with a person with some fluctuating capacity. I sought to draw a distinction between isolated decisions, for example, making a will or power of attorney, and cases where decisions may regularly have to be taken sometimes at short notice, as for example, in managing one’s own affairs.
In paragraph 41 of the judgment I expressed myself as follows:
‘In the light of Dr Posser’s evidence, I am satisfied on balance that he lacks capacity to manage his own affairs. In so finding I acknowledge, as I have done in relation to the other matters, that there would be times when a snapshot of his condition would reveal an ability to manage his affairs. But the general concept of managing affairs is an ongoing act and, therefore, quite unlike the specific act of making a will or making an enduring power of attorney. The management of affairs relates to a continuous state of affairs whose demands may be unpredictable and may occasionally be urgent. In the context of the evidence that I have, I am not satisfied that he has capacity to manage his affairs.’
Some have referred to this as taking a longitudinal view. In my view, this approach has the value of clarity. It establishes that the starting point is incapacity.”
Here, BC generally has capacity in relation to decision-making about engagement in sexual relations but is liable to lose capacity in the moment due to dissociation. BC may make a general decision – that EF is a man with whom she would like to have ongoing sexual relations – but may also make specific decisions – whether to engage in sexual relations with EF now. The latter kind of decision is more akin to the kind of one off decision-making that Hedley J thought to be unsuitable for a longitudinal approach.
In Wakefield MDC v DN and MN [2019] EWHC 2306 (Fam) Cobb J granted anticipatory declarations which would take effect only at times when DN lost capacity due to a “meltdown”. Here, any episodes of dissociation will occur during private, intimate moments. There will be no carers present to identify whether BC is suffering dissociation and therefore a loss of capacity.
Another approach to fluctuating capacity was adopted by Theis J in Leicestershire County Council v P (Capacity: Anticipatory Declaration) [2024] EWCOP 53 (T3) in which P experienced episodes of dissociation due to complex PTSD. In relation to decisions about care and contact with others, Theis J declined to make anticipatory declarations that in a particular situation P would lack capacity. Theis J was satisfied that P remained protected by ss5 and 6 MCA 2025 which protect carers from liability for acts in connection with the care and treatment of P if they reasonably believe that P lacks capacity and that the act is in P’s best interests. That approach cannot be adopted for decisions about engaging in sexual relations because no one can make a best interests decision on behalf of P to engage or not engage in sexual relations.
Of interest, in Re DY [2021] EWCOP 28, Gwynneth Knowles J refused to find that P had fluctuating capacity to decide on engagement in sexual relations when the expert in the case, being, as here, Dr Camden-Smith, had advised that P had capacity to engage in sexual relations with her partner but it would be difficult to say what her capacity might be if her relationship with them ended and she became unsettled. Knowles J adopted a general rather than person-specific approach in that case but nevertheless found that P had capacity and that a longitudinal view was not required.
In the present case, the decision that BC faces regarding sexual relations is person-specific: it involves her partner, EF. She has not had sexual relations with anyone else for a decade or so and has not expressed any wish to have sexual relations with anyone else. As it happens, BC has not had sexual relations with EF for a number of years. Her reports of dissociation are historical and she has undergone a great deal of therapy since the last episode could have occurred. Of course, sexual relations will only take place between BC and EF if both partners are willing. At present, EF has said he does not want to have sexual relations with BC for fear of an unfounded allegation of abuse. He agrees that some joint work would be beneficial. Such work will, Dr Camden-Smith advises, reduce the risk of BC experiencing dissociation during sexual relations so that, if BC feels sufficiently confident, dissociation will probably not occur.
It is established on the balance of probabilities that, as advised by Dr Camden Smith, BC is unable to understand and weigh or use information about the risk to her from contact with others because of her inability to understand or recognise abuse. It is not disputed that this inability includes an inability to make decisions about contact with EF. How then could BC have capacity to decide to engage in sexual relations with EF? In Hull CC v KF [2022] EWCOP 33 I observed that it was difficult to see how a person who lacks capacity to decide to have contact with a specific person could have capacity to decide to engage in sexual relations with that person (para.24). In that case, KF had been sexually assaulted by KW – he was a danger to her and she could not understand and weigh or use information about the risk to her from him. The risk to her came from sexual and non-sexual contact with that particular man.
In A Local Authority v TZ (No. 2) [2014] EWCOP 973, Baker J found that TZ lacked capacity to make decisions about contact with an individual with whom he may wish to have sexual relations even though he had previously found TZ to have capacity to consent to sexual relations. Baker J proposed a plan – now more widely applied and known as a TZ plan – the basis for which included findings that TZ had capacity to consent to and enter sexual relations but lacked capacity to decide whether or not an individual with whom he may wish to have sexual relations is safe. The TZ plan also included the support he might need when having contact with that individual. The purpose of the plan was to identify the support to be provided to TZ to assist him to develop a sexual relationship without exposing him to a risk of harm. Baker J said at para. 57:
“When delivering a plan to address TZ's lack of capacity to decide whether someone with whom he may wish to have sexual relations is safe, the principal focus should be on educating and empowering him to make these decisions. Any provisions in the plan directed at protecting him and restricting his contact should be seen as interim measures until the time when he acquires skills to make such decisions for himself.”
On the face of it, the TZ approach can apply to contact and sexual relations with a specific partner. The apparent paradox that troubled me in Hull CC v KF (above) arises from (i) the comparatively low bar that is set for capacity to engage in sexual relations which is itself a product of the prohibition on making best interest decisions about engagement in sexual relations; and (ii) the different information relevant to decisions about contact and decisions about engagement in sexual relations. In some cases such as Hull CC v KF, there will be such a large overlap of the reasonably foreseeable consequences of making a decision or not making a decision about contact and making or not making a decision about engaging in sexual relations that it would be inconsistent to find that P had capacity to engage in sexual relations with a specific person but not to decide to have contact with them. In other situations a person may be unable to make decisions about contact but able to decide to engage in sexual relations with the same person. Here, for example, concerns have been raised about BC’s ability to understand and weigh or use information about financial control and emotional abuse but she may simultaneously be able to understand and weigh or use all relevant information concerning engagement in sexual relations.
BC’s complex PTSD renders her vulnerable to suffering episodes of dissociation during the course of sexual relations. Those episodes would render her incapable in the moment of understanding and weighing or using information about her being able to give or withdraw her consent. She understands and can retain and weigh or use that information at all other times. It is in the nature of sexual relations that ability to understand and weigh or use information should be present at all material times – when deciding to begin sexual relations and throughout their course. Here, BC may lose that ability. She claims to have previously experienced this dissociation during sexual relations with EF. However, the expert evidence is that with joint work and therapy, it is less than probable that BC would suffer such episodes of dissociation during sexual relations with EF in the future. Hence, on most occasions of sexual intimacy between BC and EF, in particular after support has been given through a TZ plan, BC would retain capacity throughout, although the risk that she would lose it could not be eliminated.
It is important to recognise the rights of people with impairments such as those that affect BC. In the field of sexual relations, people without those impairments may make unwise decisions and put themselves at risk. People may engage in sexual relations when their decision-making abilities are impaired due to drink or drugs or when overwhelmed by sexual impulses. A person may become unable to give or withhold consent because of specific circumstances in the moment and that can have serious consequences in the criminal law. Yet no-one would sensibly suggest that those people should be labelled as generally unable to make decisions about engaging in sexual relations.
This is not a straightforward case but, in my judgement, it has not been established that BC is unable to decide to engage in sexual relations including with EF even though, at present, she lacks capacity to decide on contact with him:
As Dr Camden-Smith has confirmed, in a clinical assessment BC is able to understand and weigh or use all the information relevant to making decisions about engaging in sexual relations.
Whilst capacity is assessed in relation to a matter “at the material time” - MCA 2005 s2(1) - decision-making about engagement in sexual relations might involve a number of different material times. BC might decide as a matter of a life choice that the only person she wishes to have sexual relations with is EF. That is not a decision taken in the throes of passion. However a decision to have sexual relations in the next 30 minutes might well be made in wholly different circumstances. JB confirmed that the information relevant to a decision to engage in sexual relations includes both P’s ability to give or withhold consent and that the other person has the capacity to consent and does in fact consent “throughout” the sexual activity. The giving or withholding of consent is not a single decision but a continuing one. Understanding that the other person has withdrawn their consent is required throughout sexual relations. The fact that BC might lose capacity during the course of sex does not mean that she does not have capacity at other material times to decide that she wants to have sex with a particular person or to embark on sexual relations at a particular time and place.
In this case, the matter about which BC has to make decisions is engagement in sexual relations with EF. She has not had sexual relations with anyone else for over a decade. She has a very narrow life with virtually no social life. Whilst that may change, there is no realistic prospect of her contemplating entering into sexual relations with anyone but EF in the foreseeable future. Whilst earlier caselaw might have suggested that capacity in this area is directed to the nature of the activity rather than the identity of the sexual partner (Re MM; Local Authority X v MM & KM [2007] EWHC 2003 (Fam), [2009] 1 FLR 443), Lord Stephens in JB confirmed that a general and non-specific basis “is not the only appropriate formulation in respect of sexual relations as even in that context, “the matter” can be person-specific…”
Decisions by BC whether to engage in sexual relations with others than EF do not currently arise. However, BC is able to understand, retain, weigh or use , and communicate relevant information about sexual relations with all others. The circumstances in which she might lose that ability due to her complex PTSD arise only “in the moment” and such moments are not going to happen in the foreseeable future, except possibly with EF.
By MCA 2005 s1(3) “a person is not to be treated as unable to make a decision unless all practicable steps to help him to do so have been taken without success.” Here, the evidence is that with therapy and joint work, the risk to BC of dissociation during sexual relations will diminish such that it would be likely that she would not suffer it and so would not lose her capacity in the moment.
As Sir Brian Leveson held in IM v LM and Ors [2014] EWCA Civ 37
… 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, as Ms Richards observes, is largely visceral rather than cerebral, owing more to instinct and emotion than to analysis.
It is for that reason also that the ability to use and weigh information is unlikely to loom large in the evaluation of capacity to consent to sexual relations. It is not an irrelevant consideration; indeed (as we have emphasised) the statute mandates that it be taken into account, but the notional process of using and weighing information attributed to the protected person should not involve a refined analysis of the sort which does not typically inform the decision to consent to sexual relations made by a person of full capacity. That is the point which Munby J was seeking to make in MN at paragraph 84, which we have reproduced at paragraph 35 above. It is precisely this point at which Hedley J was driving in An NHS Trust v P when he observed that "the intention of the Act is not to dress an incapacitous person in forensic cotton wool but to 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".”
In JB Lord Stephens endorsed the first part of para. 80 of Sir Brian Leveson’s judgment.
BC will remain at risk of losing capacity in the moment of sexual relations were she to dissociate but that risk is not a sufficient ground to rebut the presumption of capacity. BC has not had sexual relations with EF for some years and it is speculative whether she will suffer dissociation on engaging in sexual relations with him in the future. Both parties would need to agree whether to have sexual relations again and if so, in what circumstances. They are likely to engage in joint work and might well decide not to engage in sexual relations at all or to confine their sexual activity to a kind that would minimise the risk of BC experiencing dissociation. In short, the risk can be managed and the temporary loss of capacity may never arise. On Dr Camden-Smith’s view, with suitable support, joint work, and therapy, it is unlikely that BC would dissociate and thereby lose her ability to make decisions about sexual relations if she were to have sexual relations with EF.
In relation to the field of sexual relations, it is not helpful to address prospective temporary losses of capacity by way of anticipatory declarations. They could not practically be implemented when the anticipated loss of capacity might or might not occur in the throes of sexual intimacy. Nor is it possible to rely on MCA 2005 ss5 and 6 for the reasons already discussed. In the present case, a longitudinal analysis is not particularly helpful either because the anticipated loss of capacity would arise, not in relation to decision-making about an ongoing or recurring matter, but in relation to one-off decisions, for example whether to continue to consent to sexual intercourse whilst it is already taking place.
Even people without impairment or disturbance of the mind or brain may, in the moment or because of circumstances surrounding sexual relations temporarily lose their ability to understand and weigh or use relevant information. It cannot be the case that a person must be found to lack capacity unless all risk of temporary loss of capacity is eliminated. That would be to set an unrealistically high bar for those with impairments or disturbances of the functioning of the mind or brain.
Hence, the possibility of dissociation occurring “in the moment” during sexual relations with EF or with anyone else does not persuade me that the presumption of capacity to engage in sexual relations is displaced.
Had I found that BC was unable to make decisions about engagement in sexual relations with EF and/or others, I would have found that her inability was due to the risk of dissociation and therefore was because of an impairment or disturbance of the functioning of her mind or brain, namely her complex PTSD. That condition is amenable to treatment albeit over a prolonged course and BC’s capacity in this respect would need to be re-assessed in the medium term.
Whilst I have not received evidence or submissions on BC’s best interests, it is clear that a TZ style plan would support and protect her until she is in a position to make decisions about contact with EF for herself. Indeed, it appears that a staged increase in contact would be prudent – Dr Camden-Smith emphasised the need for BC to learn through experience. Hence, she needs to be able to spend time with EF with decreasing supervision and then unsupervised, to be able to cuddle and kiss, if they both wish to do so, and generally to normalise relations consistent with keeping herself safe. A review of BC’s capacity to make decisions about contact with EF should be undertaken in six months from now.
Final Conclusions
In accordance with the conclusions set out above, I shall make declarations pursuant to MCA 2005 s15 that:
BC has capacity to engage in sexual relations.
BC has capacity to manage her financial affairs.
BC lacks capacity to conduct this litigation.
BC lacks capacity to make decisions about care and support.
BC lacks capacity to make decisions about contact with others where such contact may involve issues of her safety and vulnerability to abuse from others.
BC lacks capacity to make decisions about her residence.
I am not willing to declare that BC does not have capacity to make decisions about contact with others which do not have any bearing on her vulnerability to abuse or her safety. So, for example, she has capacity to go into a shop and buy an item. She may want some support for this activity given her lack of recent experience, but she has capacity in that respect.
BC’s views, wishes, and feelings about residence and contact with EF should be given weight in any best interests decisions.
BC’s capacity should be re-assessed in all areas where interim declarations have been made in six months’ time. BC should be provided with the support she needs to regain capacity in all areas in which interim declarations have been made.