Local Authority X v MM & Anor (No. 1)

An adult’s capacity is decision-specific. Capacity concerning residence, contact and financial affairs is determined by whether the person can understand and retain relevant information, use or weigh it, and communicate a decision. Capacity to consent to sexual relations concerns the nature and foreseeable consequences of the activity, not the identity of the partner.

When exercising the protective inherent jurisdiction, the court must assess welfare broadly and respect the adult’s wishes, autonomy and rights under article 8. Protection does not require the elimination of every risk. Restrictions must be necessary and proportionate, with manageable risks tolerated where that promotes happiness and emotional welfare. A public authority which controls where an adult lives cannot create a practical barrier to a capacitous sexual relationship without either removing that barrier or taking appropriate positive steps to facilitate the relationship.

MM was an adult with paranoid schizophrenia, a moderate learning disability and seriously impaired cognitive functioning. She had a longstanding relationship with KM which brought her emotional benefits but had also involved violence, instability, homelessness, disengagement from services and deterioration in her health.

The local authority invoked the inherent jurisdiction. It sought declarations concerning MM’s capacity and orders requiring her to remain in supported accommodation while regulating her contact with KM. The central questions were which decisions MM could make for herself, what arrangements served her best interests, and whether restrictions upon her relationship with KM were compatible with article 8.

1. MM had capacity to consent to sexual relations. She lacked capacity to litigate, manage her finances, marry, decide where and with whom to live, or decide with whom to have contact. Capacity was decision-specific. The functional approach in Re MB was applicable to residence, contact and financial decisions and was materially indistinguishable from section 3(1) of the Mental Capacity Act 2005. The litigation test was that in Masterman-Lister.

2. Capacity to consent to sexual relations depended upon sufficient understanding of the nature and character of the sexual act and its reasonably foreseeable consequences. It was activity-specific but not partner-specific. There was no inconsistency in finding that MM could consent to sexual relations while lacking capacity to decide the more complex questions arising from contact or a long-term relationship.

3. The inherent jurisdiction was protective and MM’s welfare was paramount. Best interests required a broad appraisal of ethical, social, moral, emotional and welfare considerations. Her wishes and feelings remained important despite her incapacity. The court had to balance protection against autonomy and happiness, rather than eliminate every risk. Intervention required a demonstrated need for protection from abuse or a real possibility of future abuse or exploitation.

4. Article 8 protected MM’s physical and psychological integrity, personal autonomy, relationships and sexual life. Any interference had to pursue a legitimate aim and be necessary and proportionate. The risks associated with unsupervised contact were manageable and acceptable. Weekly unsupervised contact for up to four hours was the minimum acceptable arrangement and required review. Monthly or wholly supervised contact would be disproportionate.

5. The supported placement was otherwise suitable and preferable to residence with KM. Judicial approval nevertheless depended upon contact arrangements which respected their private and family life. By placing MM where KM could neither live nor visit, while controlling his access, the local authority created the practical obstacle to their sexual relationship. It therefore had either to abandon that control or take appropriate positive steps to enable the relationship to continue in an appropriate and dignified way. Scarce resources did not remove that obligation.

6. Final capacity declarations were made. Placement and contact orders remained interim pending a detailed care plan addressing contact and facilitation of the sexual relationship. The matter was restored for further consideration.

The judgment was given at first instance. Earlier interim declarations and protective orders in the same proceedings had been made or continued by several judges of the High Court. Those orders addressed MM’s residence, return to accommodation and supervised contact with KM. The present court made final declarations on capacity but retained placement and contact arrangements on an interim basis pending review of the local authority’s care plan.