B v A Local Authority

Under the Mental Capacity Act 2005, capacity is decision-specific and is assessed functionally by reference to information relevant to the particular decision. Lists of relevant information are guidance, not exhaustive rules, and must be adapted to the facts.

Capacity to consent to sexual relations requires the ability, when the information is explained, to understand and use or weigh the risk of sexually transmitted infection from unprotected intercourse and the protective effect of condoms. This is not a general knowledge test. A residence assessment must include foreseeable consequences inherent in the proposed living arrangement. It cannot treat closely connected decisions about contact, care and sexual relations as isolated silos where they materially affect residence.

B, a woman with learning difficulties and substantial care needs, wished to live with Mr C, whom she had met online. The Court of Protection made declarations that she lacked capacity regarding care and contact, and interim declarations concerning social-media use and sexual relations. It nevertheless declared that she had capacity to decide where she lived.

B appealed the interim declarations concerning social media and sexual relations. The Local Authority cross-appealed the residence declaration. The central issues were the information relevant to capacity for social-media use and sexual relations, and whether the foreseeable consequences of living with Mr C had been excluded from the residence assessment.

1. B’s appeal was dismissed and the Local Authority’s cross-appeal was allowed. B did not challenge the order concerning her use of social media, but only the judge’s reasoning. An appeal lies from an order, not from reasoning which produces no challenged order. The court nevertheless observed that social-media capacity guidance must be adapted to the facts. Matters irrelevant to a person’s actual or likely online behaviour should not be treated as relevant information.

2. The interim declaration that B lacked capacity to consent to sexual relations was not flawed. Under sections 3(1) and 3(4) of the Mental Capacity Act 2005, the foreseeable consequences of intercourse include the risk of sexually transmitted infection through unprotected intercourse and the reduction of that risk through condom use. A person need not have permanent general knowledge of those matters. The question is whether the person can understand, retain and use or weigh them when explained in deciding whether to consent.

3. The court rejected the contention that a vague awareness that intercourse might cause ill health was enough. B’s belief that infection depended upon personal hygiene did not show an understanding of sexually transmitted infection or how its risk could be reduced. The court also stressed that this conclusion did not equate incapacity with making an unwise choice. The decisive distinction is between an unwise decision and an inability to understand or weigh relevant risk information.

4. The residence declaration could not stand. Relevant information includes reasonably foreseeable consequences of deciding where to live. In this case, a decision to live with Mr C necessarily engaged B’s capacity regarding contact with him, the existing injunction, her intended sexual relationship and pregnancy, and the care she would receive. The judge had wrongly excluded those matters from the residence assessment and had reached conclusions incompatible with his findings that B lacked capacity concerning contact and care. The Local Authority’s appeal was therefore allowed.

• Court of Appeal (Civil Division): B’s appeal was dismissed and the Local Authority’s cross-appeal was allowed: [2019] EWCA Civ 913 .

• Court of Protection: Cobb J made declarations concerning B’s capacity, including interim declarations concerning social-media use and sexual relations, and declared that she had capacity to decide residence: [2019] EWCOP 3.