IM v LM & Ors

Under the Mental Capacity Act 2005, capacity to consent to sexual relations is assessed prospectively and generally, by reference to the nature of the act rather than to a particular partner, occasion or setting. The court must apply the full functional test in section 3(1), including the ability to understand, retain, use or weigh relevant information, and communicate a decision. The assessment must remain practical. It should not demand refined analysis of pregnancy, parenthood or risks that do not typically inform ordinary sexual decisions, nor confuse capacity with best interests. In the civil jurisdiction, the criminal law’s retrospective, person- and situation-specific approach does not alter that general assessment. An unwise choice, or the need for safeguards and advice, does not of itself establish incapacity.

LM suffered a hypoxic brain injury after a cardiac arrest and was living in specialist accommodation. Proceedings in the Court of Protection concerned her residence, care and contact with AB, with whom she had previously had a sexual relationship. The court made unchallenged declarations that LM lacked capacity concerning residence, care and contact, but held that she retained capacity to decide whether to consent to sexual relations.

IM appealed, alleging that the judge had applied the wrong test, considered irrelevant matters, misunderstood the consequences of a declaration of incapacity, and failed to address the expert evidence. The central issues were whether capacity to consent to sexual relations was general and act-specific or partner-specific, and whether LM’s limited understanding of pregnancy and sexually transmitted disease established incapacity.

1. Appeal dismissed. The Court of Appeal gave a joint judgment and upheld the Court of Protection’s conclusion that LM had capacity to make decisions about whether to have sexual relations.
2. Every capacity issue under Part 1 of the Mental Capacity Act 2005 must be assessed by applying section 3(1) in full. The court must consider understanding, retention, use or weighing of relevant information, and communication. The degree of sophistication required varies with the decision and its factual context. This was consistent with Re C (Adult: Refusal of Treatment) [1994] 1 WLR 290, Re MB (Medical Treatment) [1997] 2 FLR 426 and PC v City of York Council [2013] EWCA Civ 478.
3. In the prospective civil jurisdiction, capacity to consent to future sexual relations is assessed generally and is issue-specific, not person-, partner-, time- or event-specific. It is therefore not necessary or workable to assess capacity separately for every proposed sexual partner or encounter. Section 27 of the Mental Capacity Act 2005, which prevents the court giving substitute consent to sexual relations, supported that conclusion.
4. The apparent conflict with Regina v Cooper [2009] UKHL 42 was explained by the different legal contexts. The criminal law retrospectively assesses a particular act involving particular people at a particular time and place. The Court of Protection makes a prospective, general assessment. Baroness Hale’s person- and situation-specific observations were made in the criminal context.
5. The information relevant to sexual consent must be assessed practically. Section 3(4) does not require a person to foresee the fact-specific realities of parenthood or every possible consequence of pregnancy. The ability to use or weigh information remains mandatory, but it should not be treated as requiring refined analysis divorced from the ordinary, often emotional and instinctive, process by which people make sexual decisions. Capacity must not be confused with best interests, safeguarding or the wisdom of the choice.
6. Applied to LM, her understanding of the nature and character of intercourse, pregnancy and sexually transmitted disease, together with the evidence that her basic understanding had survived the injury, justified the judge’s conclusion. The judge was entitled to treat the proposed analysis of the wider implications of pregnancy as legally irrelevant to the capacity issue and had not improperly disregarded the expert evidence.

• Court of Appeal (Civil Division): On 23 January 2014, the appeal from the Court of Protection was dismissed. [2014] EWCA Civ 37
• Court of Protection: Peter Jackson J declared that LM lacked capacity concerning residence, care and contact, but held that she had capacity to decide whether to consent to sexual relations.