The case before Sir Brian Leveson P and his fellow Justices in the Court of Appeal regarded LM a 41 year old woman with three children who had suffered hypoxic brain injury during surgery, causing significant amnesia.

The initial proceedings before the Court of Protection were commenced by AB. AB had a sexual relationship with LM while living together for a number of years before her hypoxic brain injury. AB’s contact with LM had been restricted by the authorities and the proceedings were to challenge the legality of those restrictions and whether LM lacked the capacity to make decisions regarding her residence, care and contact with others including sexual contact.

A consultant psychiatrist prepared a report for the court advising that whilst LM wished to re-establish a sexual relationship with AB she did not have the capacity to consent to a sexual relationship. This was on the basis that she could not weigh up the risks to herself of a further pregnancy, the potential risks to any children and the risks of obtaining sexually transmitted infections.

At the first instance Peter Jackson J concluded that LM had capacity to consent to sexual relations noting ‘‘She is somebody who has been [fully] sexually active in the past; she has had children; she understands the rudiments of the sexual act; she has a basic understanding of issues of contraception and the risks of sexually transmitted diseases. The area in which she is weakest is her ability to understand the implications for herself should she become pregnant. Pregnancy for [LM] would be an extremely serious state of affairs; there can be no doubt about that. But her weakness in that respect does not, for me, lead to the conclusion that her capacity is absent; it argues for her to receive continued safeguarding and help, advice and explanation as and when the question of sexual activity might become a reality.”

Peter Jackson J concluded that continued safeguarding and help would be sufficiently provided through the decisions made in relation to her residence, care and contact.

The Court of Appeal after discussing previous cases concerning sexual relations, contraception, and the common law test of capacity decided there was no difficulty in reconciling those authorities with the decision of the first instance court.

The Court of Appeal looked in depth at the comments of Baroness Hale, in R v Cooper that the person- specific nature of a decision to consent to sexual relations is not inconsistent with a generic approach to capacity taken in the civil courts. The Court of Appeal stated “it was correct to draw a distinction between the general capacity to give or withhold consent to sexual relations, which is the necessary forward looking focus of the Court of Protection, and the

person-specific, time and place specific, occasion when that capacity is actually deployed and consent is either given or withheld which is the focus of the criminal law.”

The Court of Appeal ruled it was therefore possible for the Court of Protection to make a ‘general evaluation’ of capacity and expressly relied on policy reasons for adopting this approach accepting that “it would be totally unworkable for a local

authority or the Court of Protection to conduct an assessment every time an individual over whom there was doubt about his or her capacity to consent to sexual relations showed signs of immediate interest in experiencing a sexual

encounter with another person. On a pragmatic basis, if for no other reason, capacity to consent to future sexual relations can only be assessed on

a general and non-specific basis”

The Court of Appeal therefore held that the first instance decision was correct.

For more information on the case please follow this link IM v LM and others [2014] EWCA Civ 37

Olivia Miles. February 2014