When looking at the question of capacity to consent to sexual relations, the Courts have historically held that the threshold is low, but a recent judgment of the Court of Appeal has expanded the test for capacity in relation to sexual relations, and has held that the relevant question is whether the person has the mental capacity to engage in sexual relations, rather than to consent to sexual relations.
Presumption of capacity
The question of capacity is issue and time specific. A person must be assumed to have capacity to make any decision unless it is established that he lacks capacity [Section 1 (2) of the Mental Capacity Act 2005].
Simply because the proposed decision is unwise, does not mean that the individual should be considered to lack capacity [Section 1 (5) of the Act].
An individual is deemed to lack capacity if they are unable to understand the information which is relevant to a particular decision, to retain that information, to use or weigh up that information as part of the process of making the decision or to communicate their decision by whatever means [Section 3 (1) of the Act].
The information relevant to a decision includes information about the reasonably foreseeable consequences of deciding one way or another or failing to make the decision [Section 3 (4) of the Act].
The relevant information for a decision is different for each question posed and so, for example, the relevant information in respect of capacity to decide who to have contact with is different from the information relevant to the issue of where to live.
In addition to The Mental Capacity Act 2005, practitioners are required to have regard to the Code of Practice (‘the Code’) when assessing capacity and making decisions on behalf of a person who lacks capacity. The Code is available on line at www.publicguardian.gov.uk
The Code refers to a two-stage capacity test comprising:
- Stage 1 (the “diagnostic test”): Does the person have an impairment of, or a disturbance in the functioning of, their mind or brain?
- Stage 2 (the “functional test”): Does the impairment or disturbance mean that the person is unable to make a specific decision when they need to?
The Code also emphasizes in respect of the stage 2 test that people must be given all practical and appropriate support to enable them to make a decision for themselves and that the stage 2 test is only satisfied if all such appropriate support has failed.
This could include the use of communication aids or support materials.
If the individual has capacity to make decisions about sexual relations, the rehabilitation team and the family, if appropriate, can educate and provide support and advice.
However, they cannot stop the person from making decisions that they are legally entitled to make.
This is despite the individual making what may seem unwise decisions, some of which could have severe consequences including, for example, a police investigation.
Those responsible or involved in the injured person’s care should consider education and encouragement without taking over the decision for the injured person.
The law in this area has long been controversial and evolving. A number of different judges have considered the issue and have often given contradictory judgments.
Emerging from this case law, however, was a consistent picture which held that the relevant question was whether the person had the mental capacity to consent to sexual relations, and that the relevant information which a person had to be able to understand, retain and weigh in order to make this decision was relatively simple.
As a result of this, the threshold for having capacity to consent to sexual relations has been relatively low. However, a recent Court of Appeal judgment handed down in June 2020 has added a further element to the relevant information to be considered, and has re-framed the question from one of having capacity to consent to sexual relations to one of whether a person has capacity to decide to engage in sexual relations.
In the case of A local authority v JB  EWCA Civ 735, the Court of Appeal decided that the relevant information in relation to deciding to engage in sexual relations is the following:
- The sexual nature and character of the act of sexual intercourse, including the mechanics of the act;
- The fact that the other person must have capacity to consent to the sexual activity and must in fact consent before and throughout the sexual activity;
- The fact that P can say yes or no to having sexual relations and is able to decide whether to give or withhold consent;
- That a reasonably foreseeable consequence of sexual intercourse between a man and woman is that the woman will become pregnant;
- That there are health risks involved, particularly the acquisition of sexually transmitted and transmittable infections, and that the risk of sexually transmitted infections can be reduced by the taking or precautions such as the use of a condom.
The second and third elements of this test, those relating to consent, had not previously formed a consistent part of the test for capacity in this field, and as a result of this judgment, the threshold for capacity in this field can now be considered to be somewhat higher than before.
Lack of capacity
As indicated before, the question of capacity is time and issue specific. This means that it is possible for a person to lack capacity to make decisions in respect of one issue, but to have capacity to make decisions in relation to another, closely related issue.
This can lead to considerable practical difficulties for those supporting such an individual.
For example, a person might be found to have the capacity to engage in sexual relations (the threshold for having such capacity still being relatively low) but to lack the capacity to make decisions about who they should have contact.
This can lead to a situation in which, in practice, best interests decisions are being made around contact which restrict the person’s ability to exercise their autonomy in respect of engaging in sexual relations.
The courts have held that such cases should be considered extremely carefully and should be referred to the High Court to ensure that the correct balance is struck.
Given that the threshold for capacity to engage in sexual relations remains relatively low, in the vast majority of cases, persons with anything but the most severe brain injuries will be considered to have capacity to consent to sexual relations.
In one particular case which one of the authors was involved in, prior to the judgment in the case of JB, the injured person started inappropriately communicating with others on social media and arranging to meet them with a view to embarking upon sexual activity.
He did not appear to have much awareness about the importance of considering the age of consent. There were significant concerns that there would be police involvement.
He had, some would say naively, believed that everyone was who they said they were online.
The rehabilitation team tried hard to ensure that the injured person was educated about the risks and consequences of sexual activity and about the importance of not believing everyone is who they say they are.
When a relationship was formed, they tried to ensure that he took that at a steady and appropriate speed.
They agreed some guidelines. However, there were challenges keeping to them, particularly when he developed a relationship with an individual who did not perhaps have his best interests in mind.
He was assessed as having capacity to make decisions about who to contact and to enter into sexual relations, albeit the clinicians were of the view, rightly so, that this should be kept under review.
Fortunately, due to the extensive education provided to the injured person, he always (to the best of the rehabilitation team’s knowledge) practised safe sex.
The injured person was protected insofar as possible, and he made an informed decision about whether to engage in sexual relations as he had the capacity to do so.
In addition, he started to appreciate the risks associated with contacting individuals who did not have his best interests in mind.
If there is likely to be a dispute about whether there is a lack of capacity to make decisions about sexual relations, consideration should be given as to whether additional costs will arise which will need to be factored into the personal injury litigation.
The additional costs will be even higher in cases where a person has capacity in respect of sexual relations but lacks capacity in respect of their contact with others.
The additional costs may include additional legal advice and additional deputyship costs if applications to the Court to determine the issue are required.
In addition, there are likely to be additional costs incurred by the case manager and the rehabilitation team to protect the individual.
Kirsty Stuart is a solicitor Irwin Mitchell. David Withers is a partner at the firm.
Video: everyday vs specialist tech
Assistive technology Expert Andy Fell joins Irwin Mitchell law firm for an in-depth exploration of the very latest independence-boosting devices and platforms.
Technology plays a day to day role in our lives and mobile phones, tablets, Alexa and Siri are common place.
Imagine the impact on your life if you were no longer able to interact with a touch screen or keyboard or give voice commands….
In this virtual event, Assistive Technology expert Andy Fell gives practical demonstrations of how everyday technology and specialist technology can be used to help give independence to those who need it most and why specialist technology may be needed.
During the event hosted by Lauren Haas, personal injury solicitor at Irwin Mitchell LLP, Andy goes into detail about what apps and gadgets are on the market, how everyday technology can be optimised such as the Amazon Alexa, and answered a number of questions ranging from touch screen sensitivity to smart watch reminders.
Case managers, ancillary medical professionals, as well as interested members in healthcare, social care, parents and clients may find this recording useful, as well as anyone caring for, working or living with people such as dementia sufferers or sufferers of other conditions which restrict their mobility.
Andy Fell is an independent disability and assistive technology (AT) consultant with almost twenty years’ experience working with all disabilities and age groups.
He is a qualified Rehabilitation Officer for the Visually Impaired and, since qualification, has lectured on the use of assistive technology and role of AT in the life of disabled people.
He has worked with a wide range of charitable organisations including British Dyslexia Association, was head of assistive technology for Guide Dogs for the Blind and National Disability Advisor for the Royal Yacht Association.
He has also worked for blue chip companies, the emergency services and various government departments including Department for Work and Pensions.
Andy is a fellow of the Royal Society of Arts, chairman and founding trustee of the Wetwheels Foundation and sat on the British Dyslexia Association – Workplace Assessors Professional Review Panel.
The family experience of brain injury
After a person acquires a brain injury, the impact on the whole family can often be life changing as they adjust to a new reality and relationships come under intense pressure…
Karen Ledger (KL): When brain injury occurs, it’s like a bomb going off in the family. Life will never be the same again for any of the members of that family.
People will be shocked, bewildered and overwhelmed, and they then have to go through a complicated process of adjustment, and people reach that adjustment at different stages.
The person with the brain injury will generally have a neuropsychologist assigned to support them. Most will pay attention to people’s feelings and emotions, but the rest of the family may not have any psychological support.
This situation doesn’t get better of itself without professional input, it can get worse and people’s mental health can and often does spiral down.
Louise Jenkins (LJ): It’s a particular challenge if you’ve got someone with little or no insight. They often won’t recognise the need for or be willing to engage with neuropsychological treatment until much further down the line, by which stage, the family may have entered a more advanced stage of crisis and their whole family unit may be at risk of breakdown. There are complex emotions involved in the adjustment process following trauma which include shock, guilt and loss.
KL: That’s a scenario we see a lot. The client’s relationships may get to an advanced stage of deterioration and as Louise says, crisis, before they’re able to accept help. This is often because there is an immense amount to absorb from their new world of injury, rehabilitation and the medico-legal process and clients do not have the psychological space to consider how they are, never mind undertake the rehabilitation.
LJ: That’s where some of the challenges come in from the legal perspective. The compensation claim process is quite rigid in that generally speaking, only the injured person can claim for financial losses and for professional support, but we maintain that as the underpinning principle for compensation claims is to restore someone to their former lifestyle, you have to consider them both as an individual and as part of the family unit. We try to build into the claim some therapy sessions not only for the injured person but also for their spouse and their children.
Some defendants (compensators) say they’re happy to support that because, if the family unit breaks down and the uninjured spouse has been providing a lot of the day-to-day support, prompting and encouragement that the injured person needs, the cost of commercial care to replace that support is significantly more expensive than the amounts you can recover in a claim for support provided by a family member. It is also about embracing the spirit of the Rehabilitation Code and Serious Injury Guide in looking at the wider family need.
KL: Often, people can’t work anymore; they feel their work is taken away from them. People get their sense of identity out of work, as well as from being a spouse or a partner, a father or a mother. And if they lose their ability to earn and their relationships start to deteriorate these are often perceived as more failure and thereby serve to reduce a client’s confidence and self-worth.
LJ: It is akin to a bereavement process for the uninjured partner, yet the person is still there with you.
KL: People don’t have to have a death to experience loss, and loss can activate a bereavement process. So they’re grieving for the person they once knew, and now they’ve got this new person which makes adjustment to the injury complicated. And the thing about brain injuries is they’re hidden. The person looks the same but behaves differently to how they did before. It understandably takes a long time for clients and family members to really grasp the effects of brain injury, because they’re often traumatised, angry, discombobulated and distressed.
The family that includes somebody with a brain injury goes through a process of understanding, just as the client hopefully does. It’s a complex situation trying to comprehend what a brain injury means whilst feeling bereaved.
Family and children’s therapy is relevant too. Children often get missed because they deal with loss and trauma in different ways to adults. Children tend to get on with their lives, as if it’s not happening, so they need particular attention. They won’t be talking about it so much, but they’ll be experiencing it. The sooner that’s managed by specialists, the better it will be for children in the longer term, giving children the best chance of allowing normal development to take place.
LJ: It’s difficult because there’s a significant investment of time and energy put into implementing a rehabilitation programme and support around the injured person. This is integral to the claims process. The spouse can feel as if all the focus is on the injured person and they’ve been left out.
From a legal perspective, we try to involve the uninjured spouse as much as possible in discussing what we’re doing and why we’re doing it. We try to weave in that therapy support for the uninjured spouse so they come along the journey with us rather than becoming a disrupter to the rehabilitation programme because they feel excluded and unsupported. If securing interim payments through the claim to fund support is challenging at an early stage, our in-house team of client liaison managers, all of whom have a healthcare background, can provide time and input in discussing the challenges and in signposting for support both for the uninjured spouse and children as well as for the injured client. There are some really valuable resources for children, for example, which explain some of the problems that can arise in a parent who has sustained a brain injury to help them to understand and come to terms with changes in the family dynamics.
KL: People affected by brain injury can feel deserted by their partner and like a single parent. This is because they’ve lost their partner’s contribution to childcare and work in the home. The complexity and challenges of living in these circumstances should never be underestimated.
LJ: At the point of injury, they are in shock and just want to be there for the person who’s injured. I’ve worked with a number of people where the grief and adjustment process is very substantially delayed. These delays extend to weeks, months or even years.
They’re in a fight/flight/freeze situation. They’re managing a situation that’s about life and death initially in the most serious cases. When the acute stage is over and they have some space to start thinking about themselves, rather than the person who’s injured, they can start reflecting. It’s an emerging awareness that it’s never going to be the same again, that some degree of permanence will remain with the injuries, that this is how it will be in the longer term and a realisation that you need support to adjust to the new normal.
KL: It takes a while for that realisation to come in. I am often working with partners who are in that process of adjustment and what initially attracted them to the person pre-injury has been lost post injury, for example agile thinking and intelligence. Moreover they now find themselves in a caring role and one where many strangers are entering their home and talking to them in alien language! It’s not surprising that for many people this is often too challenging for them to manage and why therapy is needed as soon as possible for clients to regain their own personal power as soon as possible. They will have a private listening, respectful and tender place for them when the rest of their lives are so exposed.
LJ: They don’t know where that injured person is going to land with their recovery in the longer term. There’s a natural recovery process of a minimum of two years following brain injury, often longer, and they don’t know how much recovery the person’s going to make. They’re living with that uncertainty for a long time before being able to understand and adjust to what the long term will look like, often with significant physical, cognitive and behavioural changes which place great strain on sustaining relationships. Independent family law and financial advice is often essential to protect both parties in the event that the relationship does break down.
KL: I believe that acquired head injury is usually devastating to the person and those around them. However, in my experience, people are often amazing in how they find the strength to establish new ways of being and making their life work for them. Therapy can often speed up that process because clients feel heard, respected and understood, a powerful combination for a restorative process particularly when they are so often feeling powerless. This process can help families stay together or decide to go their separate ways and with support they are more likely to do this without acrimony and additional trauma. Observing and supporting clients and their loved ones to dig deep to find the strength and commitment to establish a new life is such an amazing privilege and honour for me.
LJ : When the claims process is managed by expert serious injury lawyers, early access to specialist rehabilitation and support will enable an injured claimant to restore their life to the best possible position and allow them to maximise their potential for the long term, restoring a sense of control and positivity for the future. Working together with therapists like Karen is essential to ensure that a multi-disciplinary network of support can be put in place in order to support an injured person to achieve their goals and rebuild their life as an individual and as part of a family unit after a life changing injury.
Louise Jenkins is a partner at Irwin Mitchell and leads the serious injury team at the firm’s Sheffield office. Karen Ledger is managing director of KSL Consulting and a therapist, counsellor and supervisor with over 30 years of experience.
Becoming a medico-legal expert
The benefits of undertaking medico-legal work, by David Withers of Irwin Mitchell.
For a clinician or therapist, the prospect of getting involved in medico-legal work can be exciting. It is an opportunity to consider clinical issues from a different perspective: what are the injured person’s reasonable needs and how can these needs be met, with the possibility of no funding restrictions?
There is an opportunity to assess injured people in their own time, working around other professionals and family commitments. There is the potential to be challenged, in a constructive way, by barristers and solicitors, further strengthening and improving their knowledge and area of expertise.
The risks of undertaking medico-legal work
However, in addition to the benefits, there are risk areas that aspiring medico-legal experts need to be aware of before building a medico-legal practice.
A medico-legal expert can now be liable in negligence to the party who instructed them or to the injured person whom they represent. They used to enjoy immunity.
That was removed by the Supreme Court in 2011; the Supreme Court ruled in the case of Jones – v – Kaney  UKSC 13 that expert witnesses are no longer immune from being sued for the evidence they give in court.
Experts had enjoyed immunity from civil proceedings being brought against them for the previous 400 years.
The Court of Appeal’s Judgment in General Medical Council – v – Meadow  EWCA Civ 1390 also found that a professional can be subjected to disciplinary proceedings by their own regulatory bodies for wrongdoings arising from their roles as expert witnesses.
The Court can make a cost order against an expert and subject an expert to extensive criticism, which may adversely affect their reputation. Court Judgments are available to the public. Judges will not pull any punches.
For example, in a recently unreported case of Thimmaya – v – Lancashire NHS Foundation Trust, a Consultant who had been instructed by the Claimant was ordered by the Court to pay costs totalling £88,801. The expert had been “wholly unable to articulate the test to be applied in determining breach of duty”.
The Judge took the opportunity to state that “it is right that experts should all understand the importance of their duties to the Court and the potential consequences if they fail in them”. The Judge had been influenced by the fact that the expert’s conduct had caused the Defendant NHS Trust to be put to unnecessary expense.
How to mitigate against the risks?
Before a medico-legal expert accepts instructions, they should carefully consider that the matter to be reported on falls within their area of expertise. They should also think through whether they have the time to commit to what is being asked of them now and may be asked of them in the future.
A lack of time will not be an effective defence to avoid liability in negligence or criticism.
A medico-legal expert should seek assurances about what they can expect from the law firm who is instructing them. This will avoid any late and unnecessarily urgent instructions. It should also ensure that all of the relevant evidence is sent to the expert. Any Court Orders should be sent to the expert.
A medico-legal expert should ensure that a thorough assessment is undertaken. In the report, if assumptions have been made, they should be stated. The evidence and any documents considered should be listed. An indication that the expert will re-consider their opinion upon receipt of further evidence is sensible.
If there are any limitations in respect of the assessment then these should be stated clearly.
After reporting, an expert should keep an open mind and not become too entrenched in their view. If there is further evidence which causes them to change their opinion, they should not be afraid to do so; an explanation for the change of opinion should be provided in the report.
It is the expert’s report, not those that are instructing them.
Before a joint statement or trial, preparation is absolutely crucial. An expert should ensure that they have seen all of the available and relevant evidence and that they have given themselves enough time to refresh their memory and read any additional material.
Sufficient time should be kept available for preparation time. The joint statement process should take as long as the experts need to prepare a helpful report which clearly sets out their areas of agreement and the areas of disagreement with reasons why agreement cannot be reached.
At trial, the expert should answer the question clearly and carefully. There is no need to rush. They should keep an open mind and accept sensible points put to them.
After any report, conference, joint statement or trial, an expert should also seek feedback.
What is clear is that deciding whether to embark on medico-legal work requires careful consideration about the various factors, however, when embarked upon with these in mind it can be a very rewarding experience and it is essential for litigators to be able to draw upon first class clinical expertise in order to secure the right outcomes in personal injury claims.
David Withers is a partner and solicitor-advocate at Irwin Mitchell LLP, leading a team specialising in neuro-trauma and other serious injuries such as amputations or significant poly-trauma.
Irwin Mitchell can provide training to healthcare professionals with an interest in medico-legal report writing. In addition, there are some training courses available at https://www.ewi.org.uk/.
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