D County Council v LS

Capacity to consent to sexual relations or marriage must be determined under the statutory framework in the Mental Capacity Act 2005. The person must understand the relevant information, retain it for the necessary period, and use or weigh it in making the decision. Capacity may be specific to the act, person, situation or circumstances where those circumstances affect the person’s ability to make an autonomous choice. The suitability or identity of a proposed partner is not, by itself, a best-interests consideration relevant to capacity. Capacity to marry remains distinct from the wisdom or best-interests of the marriage.

The local authority applied in 2007 for declarations concerning LS’s capacity under the Mental Capacity Act 2005. In January 2009 the court determined, among other matters, that LS had capacity to consent to sexual relations and marriage. Following the House of Lords’ decision in R v C (Gary Anthony) [2009] 1 WLR 1786, the parties sought clarification of its effect on the civil-law tests of capacity. The central issue was whether the approach to capacity required reconsideration and whether the existing declarations should be varied or discharged.

1. The court made no order altering the declarations. Applying the relevant legal test produced the same conclusions as in January 2009.

2. The observations in R v C (Gary Anthony) [2009] 1 WLR 1786 concerning the common-law approach to capacity were obiter in the criminal appeal, because the House was construing section 30 of the Sexual Offences Act 2003. Nevertheless, they were carefully considered observations agreed to by the other members of the Judicial Committee and were of wide application.

3. Under section 3 of the Mental Capacity Act 2005, capacity requires more than understanding and retaining relevant information. The person must also be able to use or weigh that information as part of the decision-making process. Mental disorder may prevent autonomous choice through delusion, irrational fear, compulsion or another impairment of mental functioning, even where the person intellectually understands the nature and consequences of the act.

4. Capacity to consent to sexual relations is concerned with the particular act. It may also depend upon the person, situation or circumstances where those matters affect the person’s mental functioning and ability to choose. A proposed partner’s perceived suitability, without more, is irrelevant to capacity and risks importing a best-interests assessment contrary to section 1(4) of the Mental Capacity Act 2005 and respect for autonomy under article 8 of the European Convention on Human Rights.

5. The same approach is relevant to capacity to marry, although capacity to marry does not depend upon contemplation of sexual relations. The question remains whether the person understands the nature of the marriage contract and the duties and responsibilities normally attaching to marriage. The court is not concerned with whether the marriage is wise or in the person’s best interests.

6. The earlier High Court decisions in X City Council v MB, NB and MAB [2006] EWHC 168 (Fam) and MM v Local Authority X [2007] EWHC 2003 (Fam) were persuasive only. The statutory approach, informed by R v C (Gary Anthony), required consideration of the ability to use or weigh information and allowed capacity to be affected by the particular circumstances.

First-instance proceedings in the Court of Protection. The judgment reconsidered declarations made by the same court in January 2009 following subsequent authority.