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On appeal from: [2008] EWCA Crim 1155. Ability of a person suffering from a mental disorder to refuse to consent to sexual activity. (1) Common law concept of capacity to choose requires ability to decide as well as ability to understand consequences. (2) Capacity to choose is event, person and situation specific. (3) Irrational fear, related to mental disorder, that prevents the exercise of choice, is to be equated with lack of capacity to choose, even if the maker understands the consequences of choice. (4) Inability to communicate a choice made encompasses mental as well as physical inability.

Baroness Hale (with whom Lords Hope, Rodger, Brown and Mance agree) provides the lead judgment in this humane and context-driven review of the concept and ingredients of capacity to choose.

(1) On the issue of capacity to choose, law makers and commentators have historically eschewed other theories in favour of one that focuses on the decision maker’s capacity to understand the nature and effects of their decision (inability to understand). One view of the common law on capacity is that all that is required.

But Baroness Hale was ‘far from satisfied’ that the common law was so confined. Certain recognised mental disorders will mean that a person can well understand the nature and effect of the decision to be made but the effects of the mental disorder prevent that person from using that information in the decision-making process. An anorexic well understands the nature, effect and potential consequences of a decision not to eat, but always decides not to because of the disorder does not exercise autonomous choice. Similarly operates a phobia or irrational fear which drives a person to refuse a life-saving injection. In such cases, the concept of capacity should require that, to be able to make a decision, the person concerned must not only be able to understand the information relevant to making it (inability to understand) but also be able to weigh that information in the balance to arrive at an autonomous choice (inability to decide).

(2) Acceptance of this wider definition of capacity in turn necessitates the conclusion that capacity to choose is not only issue specific [A can agree to sexual activity X but refuse to agree to sexual activity Y], but also – contrary to the decision of the Court of Appeal in the present case – person specific [A can agree to an activity with person X but refuse the same activity with person Y] and situation specific [A can agree to an activity in circumstance X but refuse the same activity in circumstance Y].  Of course, the very nature of a mental illness may also mean that capacity may also be time specific [A may have the capacity to agree to X on one day but not possess the capacity to do so on another day].

(3) In the present case, by reason of her combined mental disorders, whilst able to understand the nature and effect of sexual activity (ability to understand), on occasion the complainant suffered a diminished ability to take in information and use it to make a decision (inability to decide). She found herself in a situation in which, by reason of her mental illness, she developed an irrational fear of the defendant. As a result, she engaged in unwanted sexual activity with the defendant.

The defendant was charged with sexual activity with a person with a mental disorder impeding choice pursuant to section 30 of the Sexual Offences Act 2003.  Baroness Hale observed that, whatever the position at common law, the wider definition of capacity was an essential element of the 2003 Act statutory scheme. Sections 30(1)(c) and 30(2) together provide that the complainant would be unable to refuse to sexual touching because of or for a reason related to a mental disorder if she lacks the capacity to choose whether to agree to the touching – whether because she lacks sufficient understanding of the nature or reasonably foreseeable consequences of what is being done, or for any other reason. The deliberate inclusion of the words in italics were intended by Parliament widen the concept of capacity beyond mere inability to understand and to bring in considerations of inability to decide. Thus, the Court of Appeal had been wrong to hold that irrational fear (because of or for a reason related to a mental disorder) – an inability to decide – was incapable of being equated with lack of capacity to choose.

(4) Beyond inability to choose, sections 30(1)(c) and 30(2) also provide that the complainant would be unable to refuse to sexual touching because of or for a reason related to a mental disorder if she was unable to communicate to the defendant a choice actually made. Here, the complainant was physically able to communicate choice but, through irrational fear, mentally unable to do so (in the circumstances in which she found herself). In contrast to the decision of the Court of Appeal, Baroness Hale was of the clear view that ‘there is no warrant at all for limiting it to a physical inability to communicate’.

The only other contribution came from Lord Rodger (with whom Lord Hope concurred) relating to this last issue of inability to communicate. For Lord Rodger, not only did section 30 not exclude mental inability to communicate choice, it was in fact aimed specifically at mental inability to communicate; cases of physical inability to communicate choice would qualify as rape (under section 1).

The only real doubt that might be said to emanate from this careful judgment is as to the accuracy of the second half of Lord Hope’s first paragraph. It might be thought that the concepts of capacity to choose (section 30(2)(a)) and ability to communicate a choice made (section 30(2)(b)) have there been wrongly elided. Contrary to Lord Hope’s summary, section 30(2)(b), read together with section 30(2)(a), in fact, provides that a complainant is unable to refuse if she (a) lacks the capacity to choose whether to agree to the touching, whether because she lacks sufficient understanding of the nature or reasonably foreseeable consequences of what is being done, or for any other reason, or (b) he unable to communicate to the defendant a choice.

Beyond its immediate subject matter, this judgment will no doubt have significant ramifications beyond the 2003 Act and will clarify the common law of capacity.

Closer to home, it will be of significant interest to those that seek to gauge the credentials of the fledgling Supreme Court. What is remarkable about this ruling is that it constitutes a unanimous and wholesale overturning of every aspect of a decision made by Lord Phillips when Lord Chief Justice; restoring the conviction overturned by the Court of Appeal. This judgment plainly demonstrates that the independence and vigour required of a truly world class Supreme Court is very much alive and kicking in Parliament Square. It is a welcome augur.

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