In D Borough Council v AB (Rev 1) [2011] EWHC 101 (COP) a UK High Court judge acting as the Court of Protection under the Mental Capacity Act 2005 has banned a man with a "moderate learning disability" (IQ of 48) from having sex, with an order making him subject to "close supervision" by the borough council. Mostyn J commented that the case was "legally, intellectually and morally" complex, with an expectation that the court must "tread especially carefully" when the state tries to curtail what is "one of the most basic human functions".
41 year-old 'Alan', described as having a "vigorous sex drive", had been in a relationship with a man who shared the same accommodation. (It is unclear whether the man was employed as a carer, was exploitative and had a learning disability.) Alan told officials that "it would make me feel happy" for that relationship - which appears to have inolved non-coerced activity - to continue. In 2009 the council sought and gained a declaration that Alan lacked capacity to consent. The council also gained an order authorising restriction of contact between Alan and the man (and between Alan and another person) so as to prevent further relations, on the basis that Alan did not understand what he was doing.
The judge has now endorsed the interim declaration and order, agreeing that Alan should not be allowed to become intimate with anyone, on the grounds that he lacked the mental capacity to understand the health risks associated with his actions. (Alan for example appears to explained that babies were found under bushes after delivery by storks and that coitus could give you measles. So much for Dorothy Parker's dictum that "a little coitus | never hoitus".) The order does not restrict activity in the absence of another person.
Mostyn J noted with approval the Australian judgment in R v Morgan [1970] VR 337 and three UK cases - Re E (an Alleged Patient); Sheffield City Council v E and S [2004] EWHC 2808 (Fam), [2005] Fam 326, [2005] 1 FLR 965, X City Council v MB, NB and MAB (by his Litigation Friend the Official Solicitor) [2006] EWHC 168 (Fam), [2006] 2 FLR 968 and Local Authority X v MM and KM [2007] EWHC 2003 (Fam), [2009] 1 FLR 443 - albeit with the comment that "the law is in a state of confusion".
He emphasised that the court cannot prevent people from merely making "unwise" decisions; instead a simple test can be used to see if the person is capable of consenting based on the act itself rather than the proposed partner. That test has three elements: an understanding and awareness of the "mechanics of the act", a recognition "that there are health risks involved", and awareness that activity involving a man and a woman may lead to pregnancy. Alan failed the second and third elements, thus lacking the requisite capacity.
The judgment does not definitively condemn Alan to the pursuit that so threatened Dr Samuel-Auguste Tissot (1728–1797), William Acton (1813–1875), John Harvey Kellogg (1852-1943) and local guru William James Chidley (1860-1916).
Mostyn J noted that a psychiatrist involved in the case tried to prevent Alan receiving sex education, on the basis that it would leave him "confused". However, the council was ordered to provide Alan with sex education "in the hope that he thereby gains that capacity".
There is no indication that his former companion (or carer) has been charged with an offence.
