NB suffers from what is described as “general global learning difficulty” and an impaired ability to communicate with others. She came to live in the United Kingdom in 1985 and married her husband, AU in 1992: the marriage was contracted abroad and when she first came to live in the UK she did so without her husband. The couple were separated until May 1996, when NB travelled abroad to live with her husband but, following a series of applications to the Home Office throughout 1997, they came to the UK together to live in London with NB’s parents. A daughter was born a year later.
The issue arose as to whether NB had capacity to consent to sexual relations with her husband under the terms of the Mental Capacity Act 2005; and in Re NB (Consent to sex)  EWCOP 17 Hayden J delivered a short judgment ex tempore “in order that AU may receive a copy of it and better understand the focus of the Court’s enquiry” and be represented if necessary, and “in order to explore fully NB’s right to a sexual life with her husband and he with her, if that is at all possible” . Hayden J’s final judgment in London Borough of Tower Hamlets v NB (consent to sex)  EWCOP 27 has now been published.
In consequence of what appears to have been a number of remarks made by NB to her dentist, a safeguarding enquiry was instigated in October 2014 and “a programme … focusing on sex education, relationships, contraception, sexually transmitted diseases as well as more general issues relating to NB’s health” . Following this, a clinical psychologist assessed NB and concluded that she was unable to demonstrate an appreciation of why people got married, separated or divorced and that she lacked the mental capacity to marry, to consent to sexual relations or “to communicate the concept of refusal of sex to her husband”. However, “That opinion appears to have been re-evaluated as further information came to light. These different facets of the test reflect the development of the applicable case law” .
Hayden J said that there were a number of key factors that were important to isolate:
- AU had, on his own account, abstained from sexual relations with his wife following the conclusions of the assessment in 2017; furthermore, NB “exhibited challenging behaviours when she was being encouraged to do something she did not wish to do” and from that it was extrapolated that “it is unlikely that NB is being forced in to a sexual relationship with her husband”;
- it appeared that AU had been advised that any sexual activity with his wife would expose him to the risk of prosecution for serious sexual offences, including rape;
- AU had told the social services that, initially, NB would seek to initiate sexual intercourse but that she rarely did so now;
- a social worker gave it as her opinion that all NB’s family members “feel that NB does have capacity to engage in sexual relationships and … would not be forced into something she did not wish to do” .
A consultant psychiatrist had concluded in March 2019 that NB lacked capacity to conduct the present litigation, to decide where to live, to make decisions in relation to the care she receives, to make decisions in relation to contact, to contract a marriage, and to consent to sexual relations : however,
“should NB not be able to reside in her family home with her husband and daughter, there would be a significant risk to her psychological well-being. There is evidence that she has a definite attachment and affection towards her husband and, should they be separated, I believe this would have a significant impact on NB’s presentation. As noted in my previous answer, the risk would be that her mood may deteriorate and her behaviour become more challenging” .
Hayden J noted that when the case came to court March 2019 there had been an agreement between AU and counsel for both sides that it would proceed by way of AU “being invited to give a formal undertaking not to have sexual intercourse with his wife” :
“It is, of course, the case that the breach of a formal undertaking to the Court is punishable in contempt proceedings and may, if appropriate, result in a period of imprisonment. My concern was that if these were the proposed answers to the challenges presented by this situation it may be that the wrong questions were being asked” .
After summarising the case-law on capacity and consent [17-26], Hayden J came to the crux of the issue [emphasis added]:
“27. The omnipresent danger in the Court of Protection is that of emphasising the obligation to protect the incapacitous [those who do not have the capacity to make decisions], whilst losing sight of the fundamental principle that the promotion of autonomous decision making is itself a facet of protection. In this sphere i.e., capacity to consent to sexual relations, this presents as a tension between the potential for exploitation of the vulnerable on the one hand and P’s right to a sexual life on the other.
28. These are difficult issues involving intensely personal interactions. The lexicon of the law, perhaps even that of ordinary discourse, presents a challenge when seeking to distil the essence of the concepts in focus. With hesitation and some diffidence, it seems to me to be important to recognise and acknowledge, that in this interpersonal context, relationships are driven as much by instinct and emotion as by rational choice. Indeed, it is the former rather than the latter which invariably prevail. This fundamental aspect of our humanity requires to be identified and appreciated as common to all, including those who suffer some impairment of mind. To fail to do so would be to lose sight of the primary objective of the MCA. It would require a disregard of at least two decades of jurisprudence emphasising P’s autonomy. Moreover, it would seriously risk discriminating against vulnerable adults with learning disabilities and other cognitive challenges.
29. It strikes me as artificial, at best, to extract both instinct and emotion from an evaluation of consent to sex, they are intrinsic to the act itself. In many ways, of course, instinct and emotion are the antitheses of reason. However, whilst they may cloud decision making, perhaps even to the point of eclipsing any calculation of risk, they are nonetheless central to sexual impulse. To establish an inflexible criterion to what may properly constitute ‘consent’ risks imposing a rationality which is entirely artificial.
30. It also needs to be emphasised that the law does not identify the criterion which are being considered here. The MCA 2005 … is a distillation of principles which require to be applied in the context of a careful balance, one in which proportionality of intervention will always be an indivisible feature. Much of the applicable criteria concerning assessment of capacity, across a broad range of decisions, finds its way into this process via the conduit of expert evidence. This is all profoundly helpful to the practitioners and the professionals but the danger is that conceptual silos are created which fail to appreciate the individual and the infinite variety of people’s lives“.
“… depriving an individual of a sexual life in circumstances where they may be able to consent to it with a particular partner, is not ‘wrapping them up in cotton wool’. Rather, it is depriving them of a fundamental human right. Additionally, I repeat, AU’s Article 8 rights are also engaged in this context. He too has a right to a sexual life where there is true consent and mutual desire” [41: emphasis in original].
The courts had repeatedly emphasised that the tests of capacity should focus on the person’s individual characteristics and circumstances; and though it was difficult to contemplate many heterosexual relationships in which someone who could not understand the risk of pregnancy or an STD could still have capacity, “it should not be discounted automatically. This is to elevate the expert guidance beyond its legitimate remit” .
As to the likely risks to NB, the Court of Protection frequently had to evaluate risk and could do so only on the basis of known facts. A monogamous marriage of some thirty years duration, where there was no history of STD, was “probably a secure base from which to predict that this is a very low risk for the future”. The objective of the MCA was not to pamper or to nursemaid the incapacitous, rather, “it is to provide the fullest experience of life and with all its vicissitudes”. That had to be kept in focus when identifying the appropriate criteria for assessing capacity and was not to be regarded as applicable only to a consideration of “best interests” . Further, criminal law concepts of consent were not simply transferable to civil law:
“In the context of the criminal law, the test to be applied is a retrospective assessment of whether consent was truly given. In the Court of Protection, the assessment is prospective, contemplating assessment of capacity to consent with both specific individuals and generally” .
NB’s assumed capacity to consent to a sexual relationship with her husband had not been rebutted. On the contrary: the preponderant evidence suggested that she was capacitous, and “The Local Authority may wish to consider a reassessment of NB’s capacity in the light of this judgment. This will, of course, depend on whether the marriage survives” .