Mental capacity – assessing capacity – marriage – sexual relations
In the London Borough of Southwark v KA & Ors  EWHC 661 (Fam), Parker J had to grapple – again – with the question of whether a young person had capacity to consent to sexual relations and to marry. The case concerned a 29 year old man of Bangladeshi origins with learning disabilities, whose family were seeking to arrange a marriage for him as way to secure support for him once his parents became too old. Parker J concluded that the presumption of capacity had not been displaced either in respect of consent to sexual relations or marriage.
Capacity to consent to sexual relations
Parker J was invited to undertake an attempt to reconcile the notoriously tricky authorities in the area, but declined to do so, saying she would apply the statute. The judge did agree with previous authorities (and in particular IM v LM) that the tests for capacity in relation to both marriage and sexual relations are not high or complex, the degree of understanding of the 'relevant information' is not sophisticated and has been described as 'rudimentary', the requirement to 'use and weigh' the information is unlikely to figure materially, and that the core relevant information, in respect of sexual relations (1) the mechanics of the act; (2) sexual relations can lead to pregnancy; and (3) that there are health risks caused by sexual relations.
The court was asked to clarify the necessary degree of understanding of the following matters:
- Health risks of sexual activity: what health risks must be perceived and to what extent.
- Whether health risks include a risk of pregnancy, or whether it is a separate risk.
- The extent of the understanding of pregnancy as a consequence and the process of pregnancy, and does there need to be an understanding of a possibility of pregnancy if P is homosexual.
- Is an understanding of any protective method against either pregnancy or disease necessary.
- What is the role of consent and does it relate to the assessment of capacity or the exercise of capacity.
Parker J addressed the issue of consent first, holding that it was not part of the relevant information but fundamental to capacity:
53. In my view consent is not part of the 'information' test as to the nature of the act or its foreseeable consequences. It goes to the root of capacity itself.
54. Mr McKendrick submits that consent is the exercise of capacity, and not relevant information. I put it a different way. The ability to understand the concept of and the necessity of one's own consent is fundamental to having capacity: in other words that P "knows that she/he has a choice and can refuse". [a reference to A Local Authority v H]
55. I am less certain that consent of the other party is fundamental to capacity.
56. The core cases do not specifically deal with this issue: some refer to P's consent and in some there is passing reference to the consent of a partner. None analyses why the latter consent is part of the capacity test.
57. Since it is all too possible for sexual contact to take place, and does take place, without consent the necessity for the consent of a partner does not obviously form part of the capacity test, particularly since the issue of consent in the criminal law can give rise to complex debate as to mens rea, particularly in cases of apparent consent or lack of explicit communication of consent.
Parker J did not, however, expressly have to make any conclusions in relation to these issues because she was satisfied that KA both understood and retained the understanding of necessity of consent of both himself and his partner/spouse.
As regards health and pregnancy, Parker J emphasised how important it was to “decouple” welfare from capacity. She then went to note that “pregnancy is a separate type of consequence from illness and must be considered separately. It does not constitute ill-health.” She noted that ‘it should suffice if a person understands that sexual relations may lead to significant ill-health and that these risks can be reduced by precautions like a condom,’” and was satisfied that it was sufficient that KA understood that ‘illness is a possible consequence of sexual activity’. KA did not need to understand about condom use to have capacity.
Crucially, Parker J emphasised:
73. Even though the statutory criteria need to be looked at individually, evaluation of a particular capacity should not simply be practical but also has a holistic element. It is not an examination in which one has to attain a certain mark in all modules.
74. The issue specific question is not whether P lacks capacity in respect of contraception, or disease control... but whether overall looking at the relevant information, capacity is proved absent.
Capacity to marry
As regards marriage, Parker J emphasised that the test is a simple one (although it is perhaps of note that she considered that it was axiomatic that a person had to have capacity to enter into sexual relations in order to have capacity to marry). Again, she emphasised, the test is one of capacity not of welfare, so she did not
- . [...] take into account aspects of his decision making which affect the consequence of his decision making, so long as they do not affect the decision making process in itself.
- . Nor is it a factor that in a family which facilitates arranged marriage KA is much more likely to find a bride than if he was unaided.
- . It is not relevant to his understanding of marriage that he does not understand:
- That a wife will need to obtain entry clearance.
- How financial remedy law and procedure works and the principles are applied. The fact that he might lack litigation capacity in respect of financial remedy litigation does not mean that he lacks capacity to marry.
Parker J noted that she did “not know whether a marriage will truly bring happiness to KA. His disabilities will provide challenges for any wife, and they will be different for a wife who has capacity from one who lacks it. A marriage might lead to distress, conflict and misery for KA and his family, as opposed to enhancement of his life and of his personal autonomy. But it is not for me to weigh up the relative chances of finding a wife who is prepared to love and cherish KA with all his needs against that of finding one who is unequal to the task.”
She also held that she had “no evidence that KA would necessarily lack litigation capacity to decide to end a marriage or to agree to or resist a divorce. In that unfortunate event that would need to be assessed in context. He might be regarded as a vulnerable adult where a decision in reality would be made for him by others. But all this is for the future and not relevant to his capacity now.”
On its facts, this case represents an admirable defence of the right of a young person to make their own decisions as to sexual relations and marriage, rather than to be barred in the name of protection. It also represents - on one view – an approach to capacity that, in practice, took account of the cultural circumstances of KA and the approach being adopted by his family to securing for his care in later life. There is therefore much to be applauded in this judgment.
It remains of concern, however, that so apparently “simple” a test as the capacity to consent to sexual relations continues to generate so much litigation about its very meaning, as opposed to its application. Does the fact that so many judges, doing their best to apply the plain words of a statute, come up with so many slightly different interpretations of that statute, itself suggest that we are asking them to answer an impossible question? And this is – of course – to ignore the fact that the test is completely different when it comes to the criminal sphere: being person-, not act-specific.
It is also of note that while Parker J held that KA did not need to understand how financial remedy law and procedure works, it was part of the relevant information to a decision to marry that ‘there may be financial consequences’. Those with a long-ish memory will recall that permission to appeal the decision of Hedley J in A, B and C v X & Z  EWHC 2400 (COP) was granted, precisely to consider the extent, if any, to which an understanding of the financial implications of marriage was required, but then discontinued when the subject of the proceedings died.