Court of Protection Judge applied Wrong Legal Test

A declaration by a judge following a hearing in the Court of Protection that ZX lacked capacity to make decisions in all of the areas specified by the local authority including engagement in sexual relations was not upheld on appeal:  ZX (Capacity to Engage in Sexual Relations) [2024] EWCA Civ 1462  Sir Andrew McFarlane P, Baker, Andrews LJJ

The court unanimously granted the appeal brought by the appellant’s next friend, the Official Solicitor, on the following grounds: (1) the learned judge applied the wrong legal test to the decision, and in so doing erroneously lowered the standard and quality of evidence that was required to rebut the presumption of capacity enshrined in section 1 Mental Capacity Act 2005 (MCA); (2) the judge was wrong to conclude that ZX lacked capacity to consent to sexual relations by reason of being unable to weigh information “in the moment”.

The assessment of capacity to engage in sexual relations presented challenges to psychiatrists and judges alike. The evaluation of whether P was unable to understand, retain, weigh and use the information identified in A Local Authority v JB [2021] UKSC 52  (JB) because of an impairment, or disturbance in, the mind or brain was never straightforward and often difficult. In this case there were specific difficulties which made the assessment undertaken by Dr I and the judge even more arduous than usual. Lord Justice Baker said that regretfully, however, the decision that ZX lacked capacity to engage in sexual relations was flawed and would have to be reconsidered.

The approach to be followed when assessing capacity in this area under sections 2 and 3 of the MCA was prescribed by the Supreme Court in JB. It had not been materially amended by any subsequent decision. The decision in Re PN (Capacity: Sexual Relations and Disclosure) [2023] EWCOP 44 did not change the law.

Similarly, the decision in Re ZZ [2024] EWCOP 21 did not change the law. In that case Theis J allowed an appeal because of a series of errors by the judge of first instance. In his judgment, the judge correctly stated that Re ZZ had not changed the law but was rather an application of the existing law. But he did not give sufficient consideration to whether Dr I’s misunderstanding about the judgment undermined the reliability of his revised opinion. The erroneous basis on which Dr I proceeded significantly raised the bar as to what a person needed to understand in order to have capacity.

For those reasons, the whole process of assessing capacity in this case was flawed. The judge should have declined to proceed on the basis of an assessment conducted on an erroneous basis. Given the radical change in Dr I’s understanding of the basis of assessment between his first and addendum reports, the proper course would have been to direct a further interview and assessment before the court reached a conclusion.

In any event, even if the judge had been entitled to proceed on the basis of Dr I’s  revised assessment, his treatment of that assessment was flawed. The judge, firstly, erred in basing his conclusion on the basis of ZX’s history of offending. That pattern of conduct was not by itself indicative of an inability to understand, weigh or use information about consent. It was at least as consistent, if not more consistent, with having the ability to understand and use the information but choosing not to do so.

Secondly, even if the judge were entitled to find on the basis of the history of non-consensual sexual activity that ZX was unable to use or weigh information about consent, he failed to establish a clear causative nexus between that inability and his mental disorders as required by s2(1) of the MC as explained in JB.

The presumption of capacity could only be rebutted if there were a clear causative nexus between the inability to make a decision and an impairment of, or a disturbance in the functioning of, the mind or brain.

Regrettably, the Court was not in a position to determine whether ZX had capacity. There had to be a fresh psychiatric or psychological assessment which would be further informed by the recent finding by his treating psychologist that ZX met the criterial for intellectual disability or learning disorder. The assessment should be conducted on the basis of the principles set down by the Supreme Court in JB.

As part of that, it would be helpful if the assessor could attempt to establish whether ZX had the ability to use information about consent “in the moment”, that is to say when he was engaged in sexual activities with another person, relevant to the decision whether to engage in sexual relations.

The President and Andrews LJ agreed with Baker LJ that the case should be remitted to Theis J for a further case management hearing to decide the terms of the capacity assessment and the identity of the appropriate expert to conduct it.