SF suffers from mild learning disability, type 2 diabetes, depression and frontal lobe dementia. SF’s presentation is extremely complex and she has difficulty in communicating and expressing herself and understanding language.
SF met AF when she was working in a café. AF, who was significantly older than SF, married SF and they have been married for 25 years. SF is unable to complete domestic tasks and requires increasing levels of support.
Unfortunately, in 2018, it became clear that when AF was leaving the house for work a man was visiting the couple’s home and taking advantage of SF by engaging in sexual intercourse with her, which SF did not consent to. AF agreed to assist wherever possible and agreed not to engage SF in sexual intercourse until the issue of SF’s capacity could be resolved.
The issues to be addressed
The Local Authority commenced proceedings to seek declarations in respect of SF’s capacity in respect of a number areas of her life. The two areas that were to be determined related to SF’s capacity to consent to sexual relations and capacity to have contact with AF.
The Local Authority contended that SF did have capacity in respect of these areas whilst the Official Solicitor opposed this contention. However, the Official Solicitor by the end of the oral evidence indicated that they no longer opposed the contentions.
Cobb J provided a particularly helpful and concise summary of the law in this area:
‘well-established principles enshrined in the opening sections of the Mental Capacity Act 2005 (‘MCA 2005’), and start from the assumption that SF has capacity in relation to her decision-making, unless it is established on the balance of probabilities that she lacks capacity (section 1(2) MCA 2005).
The burden of proving incapacity lies on the person/party asserting a lack of capacity, and the standard of proof is the balance of probabilities (MCA 2005 section 2(4) and see KK v STC and Others  EWHC 2136 (COP) at ). A point of particular resonance on these facts is that determination of capacity is always ‘decision specific’ having regard to the clear structure provided by sections 1 to 3 of the 2005 Act (see McFarlane LJ in PC v City of York Council  2 WLR 1 at ). Capacity is required to be assessed in relation to the specific decision at the time the decision needs to be made and not to a person’s capacity to make decisions generally.
Assessment of SF’s capacity
SF underwent assessment and regular MRI scans in light of her deteriorating mental health and level of functioning. A scan in September 2019 revealed atrophy which would be abnormal for a person of her age.
An assessment was undertaken and SF’s complex presentation was carefully considered. It was noted that SF had a pre-morbid personality described as ‘passive’ and ‘apathetic’.
The assessment further considered that SF’s short-term memory was ‘quite significantly impaired’. As a result, the conclusions reached were that SF did not have capacity to decide on contact with strangers and people who are not familiar.
However, SF was assessed as having capacity to make decisions in respect of contact with her husband, AF. The assessment relied on SF’s premorbid level of knowledge of her husband that she has retained and is able to use to make decisions about her relationship with him.
The assessor explained that this was based on SF’s use of episodic memory, as opposed to semantic memory. The assessor explained:
‘that episodic memory is memory for the personally experienced events of a person’s life, with retention of the details of time and situation in which they were acquired.
Semantic memory, by contrast, is knowledge which is retained irrespective of the circumstances in which it was acquired; it derives (as I understood her evidence) from the ‘feeling’ around the memory rather than the ‘facts’ surrounding the memory.’
Furthermore, the assessment of SF’s capacity to consent to sexual relations concluded that whilst SF was vulnerable to exploitation outside of her marriage, she satisfied the test to make capacitous decisions. This was because SF demonstrated an understanding that she had a right to give or withdraw her consent.
The full judgement can be read here
If you have any questions regarding this summary case law please contact Kristopher Kilsby here