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Date:6 FEB 2014
Law Reporter

(Court of Appeal, Sir Brian Leveson, the President of the Queen's Bench Division, Tomlinson, McFarlane LJJ, 23 January 2014)

The woman had led a chaotic life with an extensive history of drug and alcohol abuse and she had convictions for prostitution. She had been unable to care for her three children, who at times had lived with the maternal grandmother. She was admitted to hospital for surgery connected with excessive alcohol use during which she suffered a cardiac arrested leaving her with a hypoxic brain injury. She was placed in a specialist unit for extensive rehabilitation.

Proceedings in the Court of Protection were initiated by the woman's partner who due to inappropriate behaviour had been barred from the specialist unit and restricted in his contact with the woman. During the proceedings declarations were made that the woman lacked capacity to make decisions concerning residence, care and contact with others. It was further declared that it was in the woman's best interests to continue to reside at the specialist unit and to have contact with her partner, supervised by the clinical neuropsychologist although with a plan for a relaxation of the restrictions.

During the hearing a consultant psychiatrist gave evidence and reported that the woman wished to resume sexual relations with her partner and that unsupervised contact might trigger sexualised behaviour. The judge, however, concluded that although the woman understood the rudiments of the sexual act her weakest ability was in her understanding of the implications of pregnancy. Despite that shortcoming he concluded that she had capacity to consent to sexual relations. The mother appealed on the basis that the judge applied the incorrect legal test.

The Court of Appeal held that that the approach taken in the line of first instance decisions of Munby J in Re MM; Local Authority X v MM & KM [2007] EWHC 2003 (Fam), [2009] 1 FLR 443, Mostyn J in D Borough Council v B [2011] EWHC 101 (Fam), Hedley J in A Local Authority v H [2012] EWHC 49 COP and Baker J in A Local Authority v TZ [2013] EWHC 2322 (COP) in regarding the test for capacity to consent to sexual relationships as being general and issue specific, rather than person or event specific, represented the correct approach within the terms of the Mental Capacity Act 2005. That approach was not at odds with the view of Baroness Hale of Richmond in Regina v Cooper [2009] UKHL 42. The appeal was dismissed.