The Court of Appeal has handed down a potentially significant judgment today (11 June 2019) which should guide the Court of Protection and others who have to make decisions about whether learning disabled adults have capacity to make decisions about where to live, whether they can give consent to sexual intercourse and whether they can use social media for the purpose of finding sexual partners.
The judgment illustrates the difficult balance that the Court of Protection has to steer between encouraging and facilitating autonomy for learning disabled adults and protecting them against exploitation when their disabilities mean that they do not understand the personal, financial and sexual risks they are running through the exercise of that autonomy.
In B v A Local Authority, the Court heard appeals by both the Official Solicitor, on behalf of a young woman with learning difficulties and by the local authority with responsibility for providing social care services to her. The trial Judge had decided that B had capacity to make her own decisions about residence but lacked capacity to make her own decisions about using social media and, at that time, to consent to sexual relations. The Official Solicitor argued the Judge adopted an approach which was too restrictive of B’s freedoms, particularly around access to social media. In contrast, the Council argued the Judge got the balance right on contact, access to social media and sexual intercourse, but had made an inconsistent decision on residence which left the Council in an impossible position.
Whilst the detailed judgment will be studied carefully by lawyers, the Court dismissed the Official Solicitor ‘s appeal and upheld the Council’s appeal. The important points appear to be:
- There can be no one, definitive checklist of factors that a decision maker needs to take into account for any of these types of decisions. The checklists given in previous cases can be starting points but the “relevant information” for a decision must depend on the individual circumstances of a case.
- A decision maker must take all relevant factors into account when making a capacity decision, and must make consistent and workable decisions. It is wrong to take a “silo” approach where a factor is treated as being relevant to one decision (such as contact) but is not also treated as being relevant factor in relation to another decision (such as residence). There can be overlap where the same information is relevant to both decisions.
- The capacity to consent to sexual relations includes the capacity to understand that both parties have the right to give or refuse consent to sexual intercourse.
- It is also critical to consent to sexual relations that a learning disabled person has a proper understanding, at a rudimentary level, about sexual transmitted diseases and how condom use can protect a person against transmission of STDs.
The Court upheld the Judge’s approach and his decisions that B did not have capacity to give consent to sexual intercourse and to use social media for the purpose of finding sexual partners but upheld the Council’s appeal against the Judge’s decision that B had capacity to make her own decisions about where she should live.
David Lock QC of Landmark Chambers and Simon Garlick of Dere Street Chambers, Newcastle appeared on behalf of the local authority.