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(Family Division; Munby J; 21 August 2007)
Considering a vulnerable adult who suffered from paranoid schizophrenia, and had a moderate learning disability with poor cognitive functioning, whose chosen sexual partner misused alcohol and lead a nomadic and unstable life, the court made a number of observations concerning capacity. It was plainly correct that the test of capacity set out in Re MB (Medical Treatment)  2 FLR 426 and given statutory force in Mental Capacity Act 2005, s 3(1), governing applications to the Court of Protection, applied not only when the question related to capacity to consent to medical treatment but also when the question was whether a vulnerable adult had capacity to decide where she should reside, to decide whom she had contact with, and to decide on issues concerning her care. It would be most unfortunate if the common law were to draw distinctions alien to a statutory scheme built on common law foundations, and worse than unfortunate if a judge of the Family Division exercising the inherent jurisdiction had to adopt an approach significantly different from the approach to be adopted by the same judge when sitting in the Court of Protection. If a person lacked the capacity to 'believe' the relevant information, the person did not comprehend or understand the information, and could not use or weigh it. The capacity to consent to sexual relations was issue specific, not partner specific. It depended upon a person having sufficient knowledge and understanding of the sexual nature and character of the act of sexual intercourse, and of the reasonably foreseeable consequences of sexual intercourse, to have the capacity to choose whether or not to engage in it; it did not depend on a person understanding the consequences of sexual intercourse with a particular person. A person could have capacity to consent to sexual relations but lack capacity to decide issues of contact, because contact was a potentially complex concept involving a range of considerations, while the concept of sexual relations was much less complex. The vulnerable adult in the instant case lacked capacity to litigate, to manage her finances, to decide where and with whom she should live, to decide with whom she should have contact, and to marry, but she had the capacity to consent to sexual relations. The fact that the vulnerable adult in question lacked the relevant capacity, did not mean that her wishes and feelings simply fell out of account, and the court had to pay close attention to her undoubted wish to have an ongoing sexual relationship with her chosen partner. The local authority's proposals as to residence were in the vulnerable adult's best interests, with the important qualification that the authority's plan to forbid the vulnerable adult's partner to have any contact with her was a wholly disproportionate interference by the local authority with the human rights of both, in particular denying them an ongoing sexual relationship. The court was entitled to intervene to protect a vulnerable adult from a real possibility of future harm, but must be careful to ensure that in rescuing a vulnerable adult from one type of abuse it did not expose her to the risk of treatment at the hands of the State that, however, well-intentioned, could itself end up by being abusive of her dignity, her happiness and her human rights. The local authority was to prepare a care plan spelling out in detail what arrangements it proposed to avoid a breach of Art 8, in particular what it proposed to do to facilitate the vulnerable adult's sexual relationship with her partner.
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