- Personal care and welfare;
- Sexual relations;
The Patient (‘P’) is a 29 year old man, and is one of five children from a Bangladeshi family. P was originally diagnosed with a mild learning disability. He was known to social services as a child and young adult. In 2014 he was referred by his GP to his local NHS Trust as there were concerns about him talking to himself, hoarding rubbish, unusual hand posturing, poor eating habits and poor hygiene, plus his limited daily structure.
Assessments were carried out and it was found that the family were endeavouring to find him a wife to look after him, and thereafter any children would look after him when his parents became too old. P’s siblings did not wish to help care for him.
During the assessment P showed little understanding of sexual activity and the meaning of marriage. Concerns were raised and the family withdrew from social services input, therefore no formal assessment of capacity was undertaken.
The local authority (‘LA’) sought and obtained urgent Forced Marriage Protection Orders and made an application in these proceedings.
A section 49 report was commissioned and Dr Alim, a Consultant Psychologist and Behavioural Analyst, reported on P’s capacity stating that P did not have the capacity to have sexual relations and to marry. It was asserted that Dr Alim applied too high a test and was asked questions of which she answered some but stated she needed to see P a further two times.
The court considered sections 1(2), 3(1) of the Mental Capacity Act 2005 (‘the Act’). The court considered LBL v RYJ  EWHC 2664 (Fam) that it was not necessary for the patient to comprehend every detail of the issues, but the question being whether the person can “comprehend and weigh the salient details relevant to a decision to be made”.
The court also considered CC & KK & STCC  EWHC 2136 (COP) where the court has to weigh up all the evidence and not just the expert evidence.
The court was referred to numerous authorities (paragraphs 32 and 33) and was invited to reconcile some of the cases and formulate a more complete test. The Judge however declined to disagree with judges of the same level or higher and her decision was based on the statute. The court’s primary duty was to decide this case.
The court acknowledged that the test must not be set too high and considered the recent case of IM v LM  EWCA Civ 37 which states that the court should be careful not to add any further relevant information to the requirement of understanding.
The core relevant information in respect of sexual relations is: (1) the mechanics of the act; (2) that sexual relations can lead to pregnancy; (3) that there are health risks caused by sexual relations.
The test for capacity to marriage is: (1) marriage is a status not person specific; (2) the wisdom of the marriage is irrelevant; (3) P must understand the broad nature of the marriage contract; (4) P must understand the duties and responsibilities that normally attach to marriage; (5) the essence of marriage is for two people to live together and to love one another; (6) P must not lack capacity to enter into sexual relations.
The decision is about capacity not welfare. Capacity must be assumed until disproved.
The court found that P had the necessary degree of understanding and will know what he is doing and that it is a sexual act.
The court found that P has the capacity to marry as the court has to leave out the welfare decisions.
Although P lacked the capacity to litigate these proceedings the presumption that P has capacity to enter into sexual relations and to marry is not displaced.
The court stated that it was vital to draw a clear distinction between capacity and welfare.
Although Dr Alim stated that P lacked capacity, her observations were of great assistance to the court in determining the issue of capacity as it is the courts role to determine whether or not P lacks capacity.
The court felt that Dr Alim overstated the test for capacity in relation to P’s understanding of immigration considerations and the financial consequences of divorce. The court stated that it was not relevant that any bride of P will need to obtain entry clearance, or how financial remedy law operates upon divorce. If P lacked capacity to litigate financial remedy proceedings this does not mean that he lacks capacity to marry - emphasising again the decisions that are being made are specific to that issue.
This is an example of the court applying the facts of this specific case and the specific decisions in the light of the evidence as a whole, and the judge’s role in determining the issues.
Read the full text of the judgment on Bailii