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Chapter 2 - Decision-making and relationships

Contributed by Nick O'Neill and Carmelle Peisah and current to 30 April 2021.

2.1 Introduction

Decisions are rarely made in an interpersonal vacuum. This is the basis of the concept of relational autonomy, that our identity and decision making are shaped by our relationships and interpersonal context.(1) Significant others, including family, friends, carers and other service providers, usually play a part in decision- making, particularly of cognitively impaired adults. Conversely, cognitive impairment may impact on a person's capacity to form or sever relationships. Thus, careful scrutiny is required when there is a significant change in the nature of interpersonal relationships of a person with dementia, particularly if this change affects decision-making, specifically the execution of legal documents. (2)

Commencing in the late 20th century and continuing, people with decision-making disabilities have been encouraged and assisted to lead as normal lives as is possible in the community. It has been the policy of all Australian governments and accepted and encouraged by more and more members of the community that the freedom of decision and freedom of action of people with decision-making disabilities is to be restricted as little as possible. However, it is accepted that such people should be protected from abuse, exploitation and neglect. The particular salience of these issues for lesbian, gay, bisexual, transgender and intersex (LGBTI) peoples, who are often invisible with their unique experiences and needs not well understood, has been increasingly recognised by the Australian Government, policy makers and health care organisations (3).

In addition, Australia ratified the UN Convention on the Rights of Persons with Disabilities (UNCRPD) in 2008. The General Principles of the Convention are:
  1. Respect for inherent dignity, individual autonomy including the freedom to make one's own choices, and independence of persons;
  2. Non-discrimination;
  3. Full and effective participation and inclusion in society;
  4. Respect for difference and acceptance of persons with disabilities as part of human diversity and humanity;
  5. Equality of opportunity;
  6. Accessibility;
  7. Equality between men and women;
  8. Respect for the evolving capacities of children with disabilities and respect for the right of children with disabilities to preserve their identities.

Specifically, Article 12 of the Convention encourages signatories to promote the rights, will and preferences of people with disability, as well as safeguarding against abuse, as does Article 16, while Article 23 supports the right for equal enjoyment of relationships, and 22 promotes respect for privacy. These ideas are central to the understanding of the approach to capacity to consent to relationships. These ideas have been in Australian legislation since the 1980s, and ratification of the UNCRPD has given impetus to implementing them.

This chapter will address the interaction between decision-making and relationships, particularly with reference to adults with dementia. It includes a discussion of: (i) indicators and patterns of influence; (ii) the vulnerability of cognitively impaired persons to influence; and (iii) the assessment of the capacity to form and cease interpersonal relationships.

2.2 Indicators and patterns of influence

Lawyers and health care professionals involved in the execution of legal documents by cognitively impaired adults should be mindful of the potential for influence by others on such vulnerable individuals. As described in Chapter 4, the term "undue influence" is a legal concept referring to the specific circumstances of coercion or subversion of will in the will-making process. Until recently that construct had been quite narrowly defined and difficult to establish and had rarely been successfully raised in the courts in Australia. (4) In the light of the CRPD acknowledgement that undue influence has salience across all decisions and an impediment to human rights actualisation, a broader working definition of influence, where others seek to persuade cognitively impaired individuals to make decisions or execute legal documents in their favour, is now in use. It is now routine, in all capacity assessments, to assess the “freedom” of the decision, namely to consider: is the person being influenced in making the decision? (5)This scrutiny applies to all decisions, not just testamentary (will-making) decisions, including controversial areas such as the wish to die and voluntary assisted dying. (Wand A., Peisah C. Draper B, Brodaty H (2018) The nexus between elder abuse, suicide, and assisted dying: the importance of relational autonomy and undue influence Macquarie Law Journal 18: 79-92. Peisah C, Sheahan L, White B. (2019) The biggest decision of them all - death and assisted dying: capacity assessments and undue influence screening. Intern Med Journal 49(6):792-796)} and as we discuss later, finances, marriage and divorce.

Common indicators that the cognitively impaired person is being unduly influenced are:
  1. Sequestration and isolation of the impaired person such that outside contact is inhibited (e.g. telephone numbers are changed or disconnected, the house in which the impaired person lives is heavily barred or no-one seems to be home on a frequent basis);
  2. Previously trusted family members or friends are no longer favoured or trusted by the cognitively impaired person;
  3. Longstanding patterns of formalising such trust (e.g. by making trusted persons attorneys, guardians, executors or major beneficiaries in wills) are changed;
  4. The person of influence instigates changes in legal documents such as wills or powers of attorney and is involved in the procurement of such changes;
  5. The lawyer whose professional services are sought is not well-known to the cognitively impaired person.
It is not unusual for an older wealthy person, who is surrounded by conflict between family members and friends vying for their influence, to be drawn into that conflict. Most commonly, the person in the position of influence is a family member, often an adult child. Situations of undue influence usually occur between an elderly cognitively impaired person and the following persons:
  1. a cohabiting family member such as an adult child;
  2. a non-resident child;
  3. a helpful neighbour or friend;
  4. a formal or informal carer;
  5. a more distant family member such as a niece or nephew;
  6. a "suitor" who may, or may not become a de facto partner or spouse, usually significantly younger and cognitively intact; and
  7. professionals such as lawyers, doctors, accountants, clergy and police officers.

2.3 Vulnerability to influence of cognitively impaired adults

2.3.1 Dependency and isolation

Physical dependency in a community-dwelling, ageing, cognitively impaired person lends itself to the development of a situation where the carer becomes central to maintaining the person at home. They may or may not be living with the impaired person, but close and frequent contact between the carer and the impaired person leads to a special relationship and puts the carer in a unique position of influence.

The carer may be paid or be a family member who has lived with the older person for some time. The carer may be a friend or neighbour or more distant family member who was previously uninvolved until they became aware that the older person needed assistance. Often the relationship is newly formed or there has been a change in the impaired person's attitude to the other person, coinciding with the onset of the impaired person's disability or frailty. When this involves a change in previous alliances, the older person is often persuaded to make changes in important legal documents such as wills, powers of attorney or guardianship to ratify their new-found faith in or gratitude to the carer. Sometimes they marry the carer. Often there are threats or promises - sometimes unrealistic - to keep the ageing person out of residential care. Changes in documents such as wills may be made in a desperate attempt to garner care, support or comfort at a time when the impaired person feels increasingly vulnerable or threatened.(6)

Isolation of the impaired person from significant others may intensify the power of the person of influence. The courts or the tribunals with guardianship jurisdiction are often called on to intervene when previously established or now needed access to the impaired person is impeded by a person of influence, particularly if their influence has been asserted recently. However, it is usually difficult to enforce access as a matter of practice. This is particularly the case where the older person supports the lack of contact.

2.3.2 Pawns in family conflict

Recent research lends support to clinically-based observations of family relations in older life which suggest that having a dependent parent provides an opportunity for siblings to play out a competition to be the best, most caring child.(7) The role of carer sometimes allows a previous "black sheep" to become newly respected for their competence or to be listened to for the first time.(8) Unresolved issues of attachment may emerge and pre-existing patterns of insecure, anxious attachment may predispose an adult child to enmeshment or excessive closeness with the ageing, disabled parent. (9) They may be threatened by assistance from or involvement of others in the life of the disabled parent.

Strawbridge and Wallhagen found that 40% of 100 adult child caregivers were experiencing relatively serious conflict with another family member, usually a sibling, and usually because they failed to provide sufficient help to the caregiver. In addition to lack of support and acknowledgement of the caregiver, other sources of conflict include: (i) differences around issues of impairment (e.g., seriousness of the patient's disability); (ii) disagreements over the amount and quality of attention given to the patient by the other family members; and (iii) the process of institutionalisation.(10) When such family disagreements align with the older person's views (e.g. "Mum hasn't got dementia", "she doesn't need any help" or "she doesn't need to go to into a home") family members (or indeed any protagonist in the conflict) may collude with the older person's denial or lack of insight. Problems with decision making may be exacerbated in this way.

2.3.3 Appraisal of others

Appraisal of others is often tainted by dementia, even in the early stages. People with dementia may change their attitudes towards significant others during the course of the illness. This change is usually triggered or fed by the disease process as well as the natural frictions within families. The person with dementia may develop antipathy towards or show favour towards family members previously disfavoured.

This reduced ability to appraise others may be understood in the light of many of the neuropsychological deficits typically associated with common forms of dementia. First, deficits in recent and autobiographical memory may effect a person's decisions about significant others.(11) (12) Deficits in recent memory may cause people with dementia to forget that family members have visited and they may form adverse opinions about such family members as a result. It is not uncommon to hear the complaint: "no-one comes to see me" despite regular daily visits by family members.

Impairment in autobiographical memory may make recall of past relationships, good times and bad times, including past disputes, difficult. A typical case example is of an elderly man who had a twenty year history of conflict with two of his children expressed in pages of vitriolic correspondence, a court case over property and a pattern of wills which favoured his other son. When he began to suffer from dementia he forgot his previous conflict and began favouring the two previously disfavoured children.

Second, people with deficits in working memory may only be able to consider information that is concrete and physically in front of them or consider one issue at a time, rendering them unable to weigh and consider the merits of one person versus another.(13) Those with such deficits may be unable to appraise their relationships in the context of the past and present simultaneously and they may be particularly vulnerable to those with whom they are in frequent visual contact.

Thirdly, deficits in judgment and reasoning may render the affected person unable to consider the meaning, significance or moral import of another's behaviour, weigh up priorities and come to well-reasoned decisions.(14),(15) This may render them prone to making shallow, superficial and impulsive judgments of people. Fourthly, personality change towards apathy and passivity will render a person with dementia vulnerable to the influence and opinions of others. Another case example is of an elderly lady with dementia who, having been previously forthright, opinionated and able to scoff at and discourage rivalries between her children, sat passively and accepted her two eldest daughters' criticism of her previously beloved youngest daughter. She thereafter questioned the integrity and loyalty of her youngest daughter.

Finally, paranoid ideation may poison affections and new alliances may be formed based on the exploitation of these poisoned affections.(16) For example, an elderly man with dementia misinterpreted his two previously adored daughters' attempts to procure services for him as being: "all about the house and my money". This in turn was exploited by his son who fed his father's mistrust and paranoid ideas about his sisters in order to gain favour with his father.

A case file review of 50 cases of family and systems conflict in cases of dementia brought to the then Guardianship Tribunal of New South Wales demonstrated how previously trusted family members might be alienated during the course of dementia.(17) It was found that the person with dementia was involved in the conflict in 76% of cases. Surprisingly, family conflict occurred most often in mild to moderate dementia as reflected by the mean Mini Mental State Examination score of subjects which was 18.85. Alliances between the person with dementia and the protagonists were always associated with accusations of undue influence with regards to signing legal documents, forming adverse opinions of various family members ("he poisoned her about us") or accepting their input into care. When the person with dementia suffered paranoid ideation and was involved in the family conflict, their suspiciousness and paranoid ideation was fuelled by hostile family camps who fed the person with dementia accusations of financial abuse or "just wanting to dump" the person with dementia into a nursing home.

A 2014 case heard by the Queensland Civil and Administrative Tribunal illustrates many of these issues discussed here, in particular how influence and distorted appraisal of both family and intimates can be evident in the context of mild cognitive impairment, or frontal impairment not detectable by abnormal Mini Mental State Examination scores. This case also crossed two Australian jurisdictions.(18) LLJ was an 83 year old man estranged from his adult children in the latter years of his life during which his children had noted radical alterations in his behaviour and numerous ill-judged proposals of marriage, and a dissipation of his assets, culminating in his final marriage to a woman some 40 years younger. In 2011 he was found to have impaired decision making capacity in regard to his finances due to mild cognitive impairment. His risk factors for undue influence were identified, namely cognitive deficit with impairment in reasoning and lack of insight, personality change, willingness to hand over money, physical frailty and physical and psychological dependency on a carer, vulnerability to sexual bargaining, a major age discrepancy between himself and his carers/intimates and family conflict.

On 10 May 2011, the ACT Civil and Administrative Tribunal revoked an enduring power of attorney executed on 17 October 2008, appointing instead the Public Trustee for the ACT as manager of his property. This order was recognised in QCAT on 30 May 2012 when LLJ relocated to Queensland with his wife and her three children. Subsequently in 2013 (when his Mini Mental State Examination Score was still 29/30), the Public Trustee of Queensland was appointed as his administrator and the Adult Guardian (now Public Guardian) as his guardian for contact decisions (regarding his children). LLJ resisted these appointments and applied to QCAT on 6 January 2014 for a declaration of his capacity.

QCAT concluded that it was not satisfied that LLJ had capacity to manage his entire financial portfolio. There was clear evidence of vulnerability in the past. LLJ made significant decisions that adversely affected his security and would have continued to do so without intervention. He continued to display no insight into the valid concerns his children held that led to financial administrators being appointed....(19) QCAT was not satisfied that LLJ had capacity for decisions relating to contact. (20) It continued the appointment of the Public Trustee of Queensland for all financial matters and the [Public] Guardian for contact decisions.

2.3.4 Protective factors against influence

Suspiciousness and paranoid ideation are common in dementia and may have a general or specific focus. While suspiciousness with a specific focus may render a person with dementia amenable to undue influence from others about the object of their mistrust, non-specific suspiciousness directed at all and sundry may protect a person against influence. Similarly, the rigidity that sometimes accompanies progressive dementia may render a person resistant to the opinion and advice of others.

Further, the nature of family dynamics may be protective against undue influence. Families won't invariably splinter in response to the friction created by caring for a person with dementia. "Collectivist" families emphasise kinship ties, belongingness and family responsibility over other personal roles and obligations.(21) A sense of common goal in care-giving is promoted and negative perceptions and distorted views expressed by the person with dementia will be glossed over or dismissed.

Sometimes the need to involve formal tribunals or courts in formalising changes in decision-making powers may be averted by conciliatory efforts or family therapy. Simple measures which are often very helpful include:
  1. psychoeducation - educating the family or protagonists about the potential for cognitive deficits such as memory loss and judgment to distort the perceptions of the person with dementia about their significant others, thereby "externalizing" the source of the problem by "blaming" the dementia;
  2. discouraging protagonists from "buying into" distortions of the person with dementia such as "no-one visits me";
  3. encouraging protagonists to check the veracity of statements such as "he stole my money" which might be fuelled by paranoid ideation;
  4. finding common ground (e.g. to care or advance wellbeing) amongst protagonists which might be expressed differently.
A referral to a family therapist or conciliator might be thus considered before embarking on formal legal processes. Conciliation is sometimes achieved within the context of court or tribunal hearings. In the aforementioned study of New South Wales guardianship cases, conciliation successful in 30% of cases. Success was often achieved by finding common ground between family members and relabelling or giving positive connotation to family members' mutual accusations. For example, a typical case of sibling conflict involved a carer son who was accused by his sister, brother and health care professionals of being "inflexible, secretive and lacking the skills" to care adequately for his mother, with whom he had an "excessively enmeshed" relationship. Accusations of the son's incapability were re-labelled by the Tribunal (now NCAT) as concern for her welfare and his brother and sister were engaged by the Tribunal in supporting him to obtain respite and pursue his own interests. An attempt at conciliation was deemed neither possible nor appropriate in 26% of cases due to (i) absence of crucial family members; (ii) "entrenched or severe conflict"; or (iii) conflict based on the person with dementia's delusions or lack of insight. In 14% of cases the Tribunal was unsuccessful in bringing the parties to a settlement despite its best endeavours.(22)

2.3.5 The need for caution when taking instructions or assessing capacity

The considerations set out above suggests the need for those taking instructions from, and those asked to assess the capacity of, people with cognitive impairment to execute legal documents such as powers of attorney, enduring guardianship and wills to obtain very careful histories of family relationships of the people they are assessing. An assessment of the person's understanding of any conflicts or tensions in their environment particularly involving those under consideration for appointment is advisable.(23)

Attempts should be made to procure the history of previous documents when health care professional are asked to assess competency of a person with cognitive impairment to sign legal documents or lawyers are asked to draft such documents. The rationale behind changes in such documents should be carefully scrutinised, particularly if there are changes from an established pattern of trusting or favouring certain family members. Both those assessing capacity and the lawyers involved should ask themselves: what is the will-making or power of attorney-granting pattern of the person with cognitive impairment and has this changed?

Those assessing capacity should enquire whether the lawyer is the person's usual lawyer or whether a person in a position of influence has used their own lawyer or procured a lawyer with whom the person with cognitive impairment is unfamiliar.

It is important to ensure that the person is executing the document freely and voluntarily and is not being "schooled" to make an appointment.(24) Therefore, assessments or interviews of older people who wish to execute legal documents are best done in private. Notwithstanding these precautions, interviewing or assessing a person in private does not preclude the need for the kind of proper enquiry and careful probing outlined above. A person can still be seen in private and 'influenced' by the presence of a significant other sitting outside in the waiting room. Those with dementia and frontal lobe impairment often have a tendency to respond to the environment rather than being able to recall and manipulate recalled facts of their life including relationships. It is much easier for such a person to recall and consider the needs or demands of those most recently and concretely in their presence (e.g. the person who brought them to the appointment and is sitting outside in the waiting room) than recall and hold in their minds the needs of others in their lives who they may not have seen recently.

2.4 Capacity to enter into and sever sexual relationships

The World Health Organisation defines sexuality as "a central aspect of being human throughout life" and "encompassing sex, gender identities and roles, sexual orientation, eroticism, pleasure, intimacy and reproduction. Sexuality is experienced and expressed in thoughts, fantasies, desires, beliefs, attitudes, values, behaviours, practices, roles and relationships."(25) There is a fundamental right of every person to make decisions about their sexual behaviour and to choose not to engage in sexual activity, involving very profound aspects of civil liberties and personal autonomy. The courts therefore tread especially carefully in regards to any interference in or abrogation of a citizen's ability to engage, in a non-abusive way, in a sexual relationship. Anyone who is over the legal age of consent may have a sexual relationship with anyone else over that age, provided that those involved are consenting,(26) with specific offences being enacted to address the vulnerabilities of people with cognitive impairment to sexual assault.(27) This raises the question how is consent to sexual relationships defined, and how does this relate to capacity?*

In general, sexual offences against adults generally require proof that the complainant did not consent to the sexual conduct. With the exception of the ACT, every Australian jurisdiction has a statutory definition of consent in regards to sexual offences based on one of the following formulations: (i) free agreement; (ii) free and voluntary agreement; or (iii) consent freely and voluntarily given.(28) The United Kingdom definition of consent explicitly requires agreement and capacity: 'a person consents if he agrees by choice, and has the freedom and capacity to make that choice'.(29) This model was initially recommended by the NSW Criminal Law Review Division in 2007 and included in its consultation draft bill.(30) Most Australian jurisdictions prescribe that there is no consent where the person who has agreed or submitted to the sexual act does not have the capacity to understand the sexual nature of the act.(31) The question of capacity is part of the Queensland definition of consent.(32)

Two Victoria based criminal cases have been used by English judges in dealing with the criteria for consent to sexual relations. We consider it useful to set out those cases briefly.

The first is the High Court of Australia case Papadimitropoulos v The Queen.(33) In that case a man Mr Papadimitropoulos (Mr P), who spoke Greek, took a Greek woman, who spoke no English but who had agreed to marry him, to the Registry Office in Melbourne in June 1956. There they signed a card and a form. These were in fact a notice of intention to marry and an information paper giving particulars for registration purposes and for the marriage certificate. Mr P then told the woman that they were married, although the marriage ceremony had been arranged for a few days later. On the basis that they were married, the woman had sexual intercourse with Mr P. He disappeared the next morning. In 1957 Mr P was convicted of rape and his conviction was upheld by the Full Court of the Supreme Court of Victoria. He applied to the High Court of Australia for special leave to appeal. The five judge court led by Dixon CJ concluded their judgment with the following:

To say that in the present case the facts which the jury must be taken to have found amount to wicked and heartless conduct on the part of the applicant [Mr P] is not enough to establish that he committed rape. To say that in having intercourse with him she supposed that she was concerned in a perfectly moral act is not to say that the intercourse was without her consent. To return to the central point; rape is carnal knowledge of a woman without her consent: carnal knowledge is the physical fact of penetration; it is the consent to that which is in question; such a consent demands a perception as to what is about to take place, as to the identity of the man and the character of what he is doing. But once the consent is comprehending and actual the inducing causes cannot destroy its reality and leave the man guilty of rape.(34)

The application for special leave was granted and the hearing of the application treated as the hearing of the appeal. Mr P's appeal was allowed and his conviction quashed. (35)

The woman who was duped into believing she was married in this case knew what sexual intercourse was. There was no suggestion that she lacked the mental capacity to understand what sexual intercourse was.

In a 1969 case, R v Morgan, a Full Court of the Supreme Court of Victoria led by Winneke CJ held that for a woman to be found to lack capacity to consent to intercourse it must be proved that she did not have sufficient knowledge or understanding to comprehend that:

  1. what was proposed to be done was the physical fact of penetration of her body by the male organ or, if that is not proved, and
  2. the act of penetration proposed was one of sexual connection as distinct from an act of a totally different character.(36)

The court when on to note that knowledge or understanding need not be a complete or sophisticated. It was enough that the woman (or man) had sufficient "rudimentary knowledge" of what the act comprised and of its character to enable them to decide whether to give or withhold consent. (37)

In a 2006 case Munby J, who at the time of writing is the President of the Family Division of the High Court of Justice of England and Wales, accepted R v Morgan as a statement of the current common (judge-made) law on the question. He said:

In my judgment, this decision of the Supreme Court of Victoria stands as an essentially correct summary and statement of the common law rule. The question is whether the woman (or man) lacks the capacity to understand the nature and character of the act. Crucially, the question is whether she (or he) lacks the capacity to understand the sexual nature of the act. Her knowledge and understanding need not be complete or sophisticated. It is enough that she has sufficient rudimentary knowledge of what the act comprises and of its sexual character to enable her to decide whether to give or withhold consent. (38)

This case was the second of two English cases where the question of the test for capacity to consent to sexual relations was first considered and decided by Munby J, as he then was, in 2004 and 2006 respectively.(39) Since then there have been a number of cases on the question decided by single judges of the High Court of Justice of England and Wales and at least one decision of the Court of Appeal of England and Wales. These cases were based on different fact situations.

The outcome of that series of cases is that there is, in England and Wales, a common law test for whether a person with decision-making disabilities has the capacity to make a decision on the issue, and a "generally agreed view" of the matters that have to be considered in making that decision. The "generally agreed view" was developed in the Family Division of the High Court of Justice of England and Wales, including in the Court of Protection, and set out, in 2014 by the Court of Appeal of England and Wales in the case IM v LM & Ors.(40) However Baroness Hale of the Supreme Court of the United Kingdom, had a different (non-binding) view.

What is settled is the test for capacity to make a decision that requires an understanding of certain criteria. This test can be described as the Dr Eastman/Thorpe J test. The Mental Capacity Act 2005 (UK) formulation of that test for determining whether a person has the capacity to make a particular decision is accepted in Australia. In short the test is best stated in the form of a double negative, namely that a person is unable to make a decision for themselves if they are unable to:

  1. understand [and believe] the information relevant to the decision,
  2. retain that information [for long enough to make the decision],
  3. use or weigh that information as part of the process of making the decision, or
  4. communicate his decision (whether by talking, using sign language or any other means).(41)

What we have described as the generally agreed view of the judges in England and Wales, but not necessarily elsewhere, is the question what are the criteria for capacity to consent to sexual relations? This is a difficult matter because of the different circumstances in which the question arises, different perspectives of those involved and the different kinds of sexual relations being considered. An example may be of assistance.

In a 2011 case Mostyn J, after considering a number of cases and the views of Baroness Hale (which will be returned to), concluded that; "the capacity to consent to sex remains act specific and requires an understanding and awareness of:

  1. the mechanics of the act;
  2. that there are health risks involved, particularly the acquisition of sexually transmitted and sexually transmissible infections; and
  3. that sex between a man and a woman may result in the woman becoming pregnant. (42)

During the hearing, six criteria had been suggested to Mostyn J by a psychiatrist, Dr Hall. Mostyn J accepted the three criteria set out above as appropriate and continued with the observation that the first and second of the criteria were needed for a person to be able to consent to penetrative anal sex and oral sex. He doubted that the third criterion was required. He also doubted whether the either the second or third criterion had to be met before a person had capacity to consent to sexual activity such as mutual masturbation. He noted that this led to potentially serious management problems for any English local authority that had certain concerns and responsibilities in relation to individuals with decision-making disabilities when they practised different kinds of sexual activities at different times.(43)

Earlier in his judgment, Mostyn J had described "Alan", the person the hearing was about, as seriously challenged in all aspects of his mental functionality. He also noted that Alan was sociable and presented as an able man. Further that he had a vigorous sex drive that had led Alan to have sexual relations with persons of both genders.(44)

Mostyn J then turned to the evidence concerning Alan's understanding and awareness. This evidence was that Alan had little or no idea what female genitalia were, or what they were for. He had no concept of sex being the reproductive function. He had no understanding at all of heterosexual coitus. While he understood the mechanics of mutual masturbation and anal sex, with persons of either gender, his knowledge as to health risks was very limited and faulty.(45)

Mostyn J went on to note that Alan did not meet any of the three criteria in relation to heterosexual penetrative vaginal sex; and did not meet the second criterion in relation to homosexual anal and oral sex, he failed on the second criterion. Consequently he made a declaration that, at that time, Alan did not have the capacity to consent to and engage in sexual relations.(46)

In one of the last cases decided by the House of Lords before it became the Supreme Court of the United Kingdom, Baroness Hale, in circumstances which did not make her remarks binding on other courts stated:

[I]t is difficult to think of an activity which is more person and situation specific than sexual relations. One does not consent to sex in general. One consents to this act of sex with this person at this time and in this place.(47)

Mostyn J noted that these remarks "coming from the very summit" cast "some doubt" on whether Munby J was right to have stated that the capacity to consent to sex was strictly act specific.(48) However, Mostyn J adopted the criticism of Baroness Hale's position, namely that it was a conflation of capacity to consent to sex and the exercise of that capacity [to consent to sex].(49) Consequently, as already noted, he was of the view that the capacity to consent to sex remained act specific.

In 2014 the Court of Appeal of England and Wales was faced with the task trying to clarify the current common law on capacity to consent to sexual relations.(50) It saw itself as having to choose between the act specific test supported by Munby J (who by then had become the President of the Family Division and so a member of the Court of Appeal of England and Wales), Mostyn J, Hedley J and Baker J and the non-binding views of Baroness Hale of the Supreme Court of the United Kingdom that the test should be person, time and situation specific. The Court of Appeal preferred the act specific test while, at the same time, stating that their approach was; "not, in truth, at odds with the observations of Baroness Hale, which were made in a different legal context".(51) As part of the justification for expressing that view, the Court of Appeal acknowledged that there was a distinction between the general capacity to give or withhold consent to sexual relations, which was "the necessary forward looking focus" of the [civil law], and the person specific, time and place specific, occasion when that capacity was actually deployed and consent was either given or withheld, which is the focus of the criminal law.(52)

It also made the following comments relating to applying the tests for consent to sexual relations appropriately and by not divorcing the requirements of the tests from the real world and impose a higher standard for capacity on those with decision-making disabilities than on persons with full capacity. Towards the end of their joint judgment they said:

The requirement for a practical limit on what needs to be envisaged as "reasonably foreseeable consequences" derives not just from pragmatism but from the imperative that the notional decision-making process attributed to the protected person with regard to consent to sexual relations should not become divorced from the actual decision-making process carried out in that regard on a daily basis by persons of full capacity. That process ... is largely visceral rather than cerebral, owing more to instinct and emotion than to analysis.(53)

It is for that reason also that the ability to use and weigh information is unlikely to loom large in the evaluation of capacity to consent to sexual relations. It is not an irrelevant consideration? indeed (as we have emphasised) the statute mandates that it be taken into account, but the notional process of using and weighing information attributed to the protected person should not involve a refined analysis of the sort which does not typically inform the decision to consent to sexual relations made by a person of full capacity. That is the point which Munby J was seeking to make in MN at paragraph 84, which we have reproduced at paragraph 35 above. It is precisely this point at which Hedley J was driving in A NHS Trust v P when he observed that "the intention of the Act is not to dress an incapacitous person in forensic cotton wool but to allow them as far as possible to make the same mistakes that all other human beings are at liberty to make and not infrequently do.(54)

This case has probably settled the UK criteria for determining whether or not a person has capacity to consent to sexual relations.(55)However, that decision, and the cases that led up to it, are not binding on courts in Australia. If they were cited in argument, no doubt they would be given appropriate consideration.

However, international consensual opinion amongst clinicians with expertise in relation to capacity take a different approach to the question of what the criteria for capacity should be to consent to sexual relations. This will be discussed below at 2.4.2. Nevertheless there are some similarities between the approaches taken by health care professionals and the English judges.

Returning to the judgment of the Court of Appeal of England and Wales referred to above, that court commenced that judgment with the following fundamental question:

When is it appropriate for society to intervene paternalistically in a decision or decisions that individuals make as to their sexual relations? At different levels, the question can be approached medically, sociologically and philosophically: the answers will not necessarily be the same.(56)

We agree with the Court of Appeal of England and Wales that each individual decision will ultimately be dependent upon a factual background which will never be identical to any other factual background.(57) This is consistent with the individualised person-centred medical model as will be discussed below.

2.4.2 Clinical matters for health care professionals asked to assess sexual relationships

We suggest that the assessment of capacity to engage in sexual relations is a clinical matter, to be performed by heath care professionals preferably based on an operationalised, standardised approach. Having said that, such intrusion on autonomy should not be undertaken lightly. Doctors or other health care professionals are sometimes asked about the appropriateness of two people - either one or both of whom have cognitive impairment or intellectual disability - entering into a sexual relationship. Family members or service providers often have concerns about people with cognitive impairment arising from dementia, intellectual disability, acquired brain injury, psychological condition or some other cause entering into a sexual relationship. Their concerns may be about exploitation, the risk of pregnancy or the risk of infection. These concerns may also arise from their opposition to, and the possibility of, the person with the disability marrying or becoming a parent.(58)

Sometimes such concerns are based on ignorance about or insensitivity to the sexual needs of cognitively impaired individuals and, in the case of elderly residents, ageist beliefs.(59) Residential staff and families alike report discomfort, confusion and embarrassment in dealing with the sexuality of older residents.(60), (61),(62), (63) Yet, sometimes such concerns are well-founded. A number of adverse outcomes have been found to be associated with sexual assault of nursing home residents including physical injury, genital injury, sexually transmitted diseases, mortality within 12 months and a range of behavioural disturbances such as sleep and appetite disturbance agitation and non-compliance with personal care, particularly marked for those with a past history of sexual abuse.(64) Importantly, the risk of emotional harm as a result of sexual abuse is sometimes underestimated with regards to cognitively impaired people such as those with Alzheimer's Disease who cannot recall recent events and experiences.(65) In particular, it has been argued that the burgeoning literature regarding implicit memory shows that people with Alzheimer's Disease can still be affected in a lasting manner by experiences that they may not be able to consciously recall having had.(66)

Conversely, the rights to intimacy and sexual expression are fundamental human rights owed to all people, including those with disability, and those in care facilities. Mindful of the challenges of promoting these rights for residents, staff and families alike in residential care facilities, Bauer et al (2013)(67) have developed a tool, the Sexuality Assessment Tool (SexAT) to help residential aged care facilities support the expression of sexuality of residents, both those with and those without cognitive impairment. The tool provides a self-audit mechanism for facilities to monitor practices and identify areas of improvement in regards to needs assessment of residents in regards to intimacy and sexuality; policies that promote resident rights for privacy and assistance in regards to the expression of their sexuality; and staff and family support, education and training.

In addition to the responsibility of staff to facilitate expression of sexuality and intimacy needs, there is a responsibility to identify when sexual expression impinges on the rights of others or causes others to feel harassed. Knowing when to support and when to intervene is a huge challenge. Clinically, when the appropriateness of a sexual relationship involving at least one cognitively impaired individual is called to question, two separate issues need to be considered:

  1. do the individuals have capacity; and
  2. is there harm or abuse?

We accept that capacity to enter into sexual relations is issue specific in that capacity to enter sexual relations is predicated upon understanding the nature of the specific act and its consequences. It is distinct form other decisions such as the decision to marry, or treatment decisions and thus no inference can be drawn from one decision making ability to the other. However, we suggest that capacity is also "person specific" and "situation specific". Accordingly, we suggest the following criteria for determining whether a person has the capacity to consent to sexual relations are:

  1. What is the person's understanding about what is involved in sexual intercourse?
  2. What is their knowledge of the nature of the relationship e.g. the identity of the other, emotional obligations of romantic relationships in general and in relation to the specific object of their affections?
  3. What is their knowledge (at a basic level) of the consequences of the relationship e.g. risks of pregnancy, sexually transmitted diseases, genital trauma, itch, anxiety?
  4. Can they advocate for their interests, and terminate the relationship if they choose?(68),(69), (70)

As a separate but related issue, they suggest that when considering issues of abuse, harm or exploitation, the following matters should be considered:

  1. What kind of relationship do they have? Is there a power imbalance or elements of coercion by or obvious gain to one party?
  2. Is there a significant discrepancy between the two people's cognitive capacity?
  3. What pleasure (or otherwise) do they experience in the relationship? Are they willing or content for it to continue? Does one party indicate distress or a negative response to the relationship?*

Notwithstanding the presumption of capacity due to all adults,(71) Lyden (2007) has suggested that there are benefits for evaluations of sexual consent capacity of people with intellectual disability, including allowing persons with capacity to exercise their sexual rights; protecting persons who lack sexual consent capacity from the untoward results of illegal sexual relations, such as harm or exploitation; and elevating people from non-consenting to consenting status as a result of identification and remediation of sexual knowledge deficits.(72)

Certainly, such benefits might be effected if recommendations for adapting and individualising the capacity assessment process to the specific individuals are followed. Such adaptions support communication, memory, language and comprehension level, to maximise opportunities for supported decision- making.(73) A clinical example of such would be facilitating meeting the sexual intimacy needs of an elderly man with dementia who is unable to articulate his needs verbally but indicates his needs by his behaviours.

Again in regards to those with intellectual disability, Ames and Samowitz (74) have argued that some people with severe to profound intellectual disability, who are unable to verbally demonstrate the necessary rationality and knowledge, are capable of sexual consent. They have suggested criteria for inferring sexual consent capacity based on "demonstrated responsible behaviours" including: (i) voluntariness (ability to decide, without coercion, with whom one wishes to have sexual relations); (ii) safety (both participants in the sexual behavior must be reasonably protected from physical or psychological harm including undesired separation from each other); (iii) no exploitation; (iv) no abuse; (v) ability to say ''no'' so that the person must be able to communicate ''no'' verbally or non-verbally, and to remove himself or herself from the situation at hand, indicating a wish to discontinue the interaction; and (vi) socially appropriate time and place or responsive to directions towards that end.

In a different context, a number of schemas for assessment of capacity to consent to sexual relationships for patients in residential care facilities have been developed.(75), (76) Once again, it is important that the two issues of capacity and abuse/harm be considered separately in this context. In the absence of harm or abuse, a lack of capacity to consent formally to sexual relations does not necessarily mean that the relationship should be prevented or discouraged.(77) This issue commonly arises in residential care where the subject of sexual behaviour is complex and fraught with a minefield of systemic, legal and ethical issues.

Sexual problems associated with dementia, include increased or decreased libido, inappropriate sexual talk or acts in public, false sexual allegations and sexual abuse. They have a range of causes including neuronal loss in the frontal, temporal and parietal lobes causing disinhibition, memory impairment and misidentification and misinterpretation of social cues, mood disturbance, psychosis and drug effects (e.g. dopaminergic medications for Parkinson's Disease).(78), (79), (80) We know that hypersexuality and sexual disinhibition are common symptoms of dementia, however the prevalence of these behaviours varies widely between 1.8% -25%, largely dependent on the setting and definition of sexual behaviour being studied.(81) Benbow et al have described the different classifications used to describe sexual behaviours in dementia including: sexual problems, hypersexuality, inappropriate sexual behaviours, sexually inappropriate behaviours and improper sexual behaviours, such taxonomies often based on value judgements of what is improper or inappropriate. (82) For example, De Medeiros divided "improper sexual behaviours" in dementia into three types: (i) intimacy seeking, normal behaviours such as kissing and hugging that are misplaced in the social context; and (ii) disinhibited behaviour that is "rude" and "intrusive" such as fondling and exhibitionism, and considered inappropriate in most contexts; (iii) non-sexual behaviour such as undressing which is mistakenly perceived as sexual.(83) In terms of management or intervention, the cultural and context- specific "inappropriateness" of such behaviours, needs to be distinguished from their cause and nature, whether it be needs- driven and as such, abnormal expression of normal needs or drives (such as intimacy, disinhibition, or aggression), or sexual offences.

Rather than working hard to extinguish intimacy-seeking behaviours or disinhibited expression of normal needs, more focus needs to be on the human rights dimension of sexual expression for people with disability, that is, promotion of autonomy and dignity.(84) Nursing homes have a duty to provide residents with liberty - both intimate and sexual - to associate freely with others while protecting them from abuse, injury and neglect.(85) Achieving the right balance between these two responsibilities is a difficult task and there is a need to treat each case on its individual merits. Ehrenfeld et al studied the sexual behaviour of 48 patients with Stage I -II dementia and found their behaviour to be mostly heterosexual but ranging from love and caring to romance and outright eroticism. Staff and family responses were variable but behaviour at the level of eroticism aroused the strongest staff reactions, often rejection, disgust and anger. The most extreme reactions were to cases of sexual harassment by male residents with dementia towards female residents or staff; however, erotic relationships between two "infirm" residents posed the biggest dilemma for staff, especially when staff learned that one partner was passive while the other was active.(86) A scenario described in the latter study of Ehrenfeld and observed commonly in clinical situations is one in which a resident's attraction towards another resident is based on misidentification or failure to recall their own marital status. Family and staff's reactions to this will differ depending on the marital status of either resident. However, if both partners are single (by virtue of widowhood or otherwise) and there appears to be no coercion involved, should the relationship be facilitated despite a likely lack of capacity to enter into the relationship in at least one of the parties involved? Berger reported on a case of a romantic couple of mixed cognitive capacities, a situation where one would normally be wary of exploitation. However the couple, both widowed (one of whom had mild dementia) developed a close companionship within the nursing home and "were obviously contented with the camaraderie and support the other provided". The cognitively intact resident then created a dilemma for staff by requesting private space for intimacy.(87)

An important ethical consideration discussed in relation to this case and many of the other cases of sexuality in this context is the competing notions that may guide decision making for demented persons i.e. the role of precedent autonomy (the manifestation of the patient's pre-dementia, long-held values) versus the rights of the present-orientated demented self in determining choices.(88), (89)

The conclusion Berger comes to in relation to this case is a thoughtful and pragmatic solution to the wide variety of such clinical situations with which health care professionals are presented:

Staff should be flexible in their actions as advocates, and need to evolve their role as conditions warrant. The staff may be obligated to disallow a physically intimate relationship if Mrs. H's interests are not served.... They may actively assist her in maintaining a satisfying sex life.

[Staff] should negotiate with the couple some limited breaches of privacy in order to assess, over time, the kind of advocacy Mrs H. needs, and whether the relationship continues to serve Mrs H's interests. These interventions might include serial assessments of Mrs H's capacity, and discussion with the couple of the physical expressions and emotional nature of the relationship. The greater the resident's cognitive capacity the less paternalistically the staff should behave.(90)

This model is entirely in keeping with Baroness Hale's nuanced concept of time and situation-specific capacity in regard to consent to sexual relations. Paternalism, or intrusion, is warranted when sexual behaviour transgresses the rights of another or at worst, constitutes a sexual offence. This is particularly challenging when sexual behaviour involves people with cognitive impairment, in particular those with severe communication deficits.

Of relevance are recommendations arising out of discussions by the Australian Law Reform Commission in regards to sexual offences and family violence including - a person is not to be regarded as having consented to a sexual act just because:

  1. the person did not say or do anything to indicate that she or he did not consent; or
  2. the person did not protest or physically resist; or
  3. the person did not sustain physical injury; or
  4. on that, or an earlier, occasion the person consented to engage in a sexual act--whether or not of the same type--with that person or another person.(91)

When a non- verbal or minimally verbal person doesn't protest, how do we know if they are consenting? Given that we know that for some, adverse effects of sexual expression might include behaviour change or agitation, including sudden resistance to personal care attendance, sleep or appetite disturbance, these might be used as proxies for dissent.(92)

Even when dissent of one party is identified, and the goal of the other is perceived as "predatorial," while the need for intervention here is unquestioned, when the "perpetrator" is equally cognitively impaired (often due to frontal lobe dysfunction), and has no prior offending history, there is equal responsibility to understand their capacity or culpability, or lack thereof. This is particularly important in the currently climate of identifying "perpetrators" and "victims," in the complex setting of this concept "resident-to-resident sexual aggression" (RRSA). If we are to respect the rights of equal legal capacity before the law of people with disability, the rights of those who commit sexual offences of which they have no capacity to understand, must also be considered, particularly those who have never committed an offence prior to the onset of dementia.

One of the most complex and challenging issues for clinicians is when an older person with a disability who may have been a longstanding victim of abuse, usually domestic violence, "chooses" to return to live with the perpetrator. It is important in such cases to discern the difference between consent (which is contingent upon both capacity and acting voluntarily without duress or influence) and assent, which is mere agreement. In other cases, assent may be enough "evidence" that capacity exists.

Incorporating developments in Common Law, ethical frameworks and clinical understanding of sexual behaviour in residential care, as well as individualised person-centred care philosophies, we have developed a schema for approaching this issue (see Box 1). We incorporate Lightbody's positive risk management, or risk enablement approach, encompassing the four steps of (i) understanding the person's needs; (ii) understanding the impact of risks or harm; (iii) enabling and managing risk (including risk to human rights and quality of life), and (iv) risk planning.

In summary, the approach to sexual expression of people with cognitive disability needs to be more founded in human rights frameworks, and perceived where possible, through the eyes of the person themselves, using person-centred care philosophies, rather than the eyes of the beholder, which are usually tainted by cultural, religious and societal views of sexuality. Recourse to fundamental human rights principles of autonomy, dignity, protection from abuse and, supported decision-making, together with person-centred care philosophies, are to be encouraged.

Finally, in regard to intervention in relationships in clinical settings, there must be a presumption of capacity, unless a trigger exists to rebut that presumption, and to warrant an assessment of capacity. The only valid trigger is when abuse is suspected or there is distress consequent upon the sexual relations. This is consistent with preservation of autonomy, privacy and the safeguarding against abuse as articulated in principles articulated in Articles 12, 16 and 22 of the UNCRPD.

Box 1

Human rights - driven approach to sexuality in dementia: a guide for health professionals a

    1. What are the systemic and family factors contributing to the referral?
      1. Does the sexual expression warrant assessment and intrusion on the person's privacy and rights? Use Tool such as SexAT b for the facility to audit policies that promote resident rights for privacy and assistance in regards to sexual expression; and staff and family support, education and training;
      2. Does the family understand sexuality and the needs of the person, while respecting the person's privacy needs?
    2. If assessment warranted, consider each partner in the relationship in regards to:
      1. Causes of behaviour: neurodegenerative/cognitive; needs based (e.g. intimacy, sexuality) and drives (disinhibition, aggression);
      2. Capacity (Do they understand the nature and consequences of sex)
        1. Nature:-
          1. Do they understand what sex is?
          2. Do they understand who the partner is?
        2. Consequences
          1. Do they understand what the consequences of sexual activity are, if there are any (e.g. genital trauma/itch etc)?
          2. Can they advocate for their interests, say "No" when they want to;
          3. Can they understand and respond appropriately when the partner says "No"
      3. Harm, risk or abuse
        1. Is there inequity in age, cognition or power"?
        2. Is there evidence of protest, resistance or coercion? NB. Accession or assent [?] consent
        3. Is there evidence of pleasure?
        4. Is there evidence of harm or injury: physical (e.g. bruising, bite marks) or psychological. Consider in the non-verbal or dysphasic or apathetic patient other signs such as behavioural change after conjugal visits, increased agitation, behavioural psychological symptoms of dementia, sleep or appetite disturbance?
    3. To intervene or not: Use positive risk management, or risk enablement approach. If necessary, use non-pharmacological measures involving needs satisfaction, access and distraction first where possible. Reserve medication use for harm and intractable predatory behaviour.

      1. Peisah C. Tiwana Benbow SM. Sexual expression, consent and capacity in residential care: a person-centred, human rights approach Book of Proceedings of the 1st Annual International Capacity Conference
      2. Bauer M., Featherstone D., Tarzia L., Nay R., Beattie E. Supporting residents' expression of sexuality: the initial construction of a sexuality assessment tool for residential aged care facilities. BMC Geriatr. 2014 Jun 30;14:82

2.4.3 Sexual Advance Directives

The concept of the sexual advance directive is entirely consistent with the notion, upheld in other areas of capacity, that planning ahead by a competent adult may preserve autonomy in the future when that adult is no longer competent. This may take the form of a prospective expression of will and preferences or giving consent prospectively. While preserving autonomy, at the same time this act of prospective determination of one's behaviour is fraught with the same ethical limitations in regards to continuity of self, that are discussed in regards to end of life advance care directives in Chapter 13.

Boni Saenz, a proponent of sexual advance directives, suggests that sexual advance directives serve at least three purposes, namely:
  1. protecting long-term sexual partners from prosecution by the state;
  2. ensuring sexually fulfilled lives for their future disabled selves; and
  3. preserving important sexual identities or relationships.(93)
In Canada, the issue of giving advance consent to erotic asphyxiation and sexual penetration while unconscious progressed through several courts. The trial court convicted the man, holding that the woman could not "legally consent to sexual activity that takes place when she is unconscious."(94) The appellate court disagreed, holding that "[t]here is no basis for holding that, as a matter of general principle or, based on s. 273.1 of the Criminal Code, a person cannot legally consent in advance to sexual activity expected to occur while the person is either unconscious or asleep".(95) The Supreme Court ultimately supported the trial court position: "The definition of consent for sexual assault requires the complainant to provide actual active consent throughout every phase of the sexual activity. It is not possible for an unconscious person to satisfy this requirement, even if she expresses her consent in advance".(96)

While clearly this highly unusual case does not support the case for sexual advance directives, the principles of advance consent (or lack thereof) for sexual relations is important, for all the reasons advanced above by Boni Saenz. In particular for those with neurodegenerative disorders such as dementia who are about to enter into residential care where decisions about sexual relations might be made by others, this issue needs to be discussed and resolved, preferably by the person themselves when they are competent, or with supported decision-making when they are not. Certainly when both partners are alive, it is better discussed between the couple, and not left to decisions by facility staff, adult children, or adult children from a previous marriage. Advance planning for any decision promotes autonomy, privacy and potentially safeguards against abuse, the principle underlying being one of precedent autonomy – the right of the past competent self to determine decisions for the future incompetent self.(97)

The concept of the sexual advance directive is currently being pursued further in order to address this clash between civil and criminal law, and the actualisation of human rights. As a partial solution to this clash through the prism of the law in England Wales, an instrument known as the Advance Decision on Intimacy (ADI) has been proposed to empower individuals to make decisions about sexuality and intimacy at a material time in the future when they may have lost capacity to consent to such acts (Sorinmadeayo D. Ruck-Keene A. Peisah C. (2019) Dementia, Sexuality and the Law. Submitted paper.)

2.5 Capacity to marry

As we have already emphasised, the right to form relationships is a fundamental human right into which neither the courts nor doctors have a right to interfere unless the exercise of that right involves abuse or exploitation, which, in the case of marriage may be of a sexual or financial nature, or involve sequestration of the person by the spouse. As with other areas of decision-making, capacity is assumed unless evidence calls this presumption into doubt. Whose responsibility is it to trigger a challenge to a person's decision to marry? In the case of late marriage or remarriage, extreme caution is needed to distinguish between proper and reasonable concern of family members and family conflict arising from, for example, disgruntled children who resent the remarriage of a parent.

2.5.1 The common law Capacity to marry in England

There is no test, strictly speaking, for capacity to marry. In 2004 Munby J of the Family Division of the High Court of Justice in England summed up the law on capacity to marry in four propositions:
  1. It is not enough that someone appreciates that they are taking part in a marriage ceremony or understands its words.
  2. They must understand the nature of the marriage contract.
  3. This means that they must be mentally capable of understanding the duties and responsibilities that normally attach to marriage.
  4. Nevertheless, the contract of marriage is in essence a simple one, which does not require a high degree of intelligence to comprehend. The contract of marriage can readily be understood by anyone of normal intelligence.(98)
The question is whether a person has the capacity to marry at all, not whether they have the capacity to marry a particular person rather than another particular person. That question is also distinct from the question of whether it is wise to marry at all or to marry a particular person.(99)

The duties and responsibilities that normally attach to marriage have undergone substantial change over the last century. As a result, as Munby J noted:

Today both spouses are the joint, co-equal heads of the family. Each has an obligation to comfort and support the other. It is not for the husband alone to provide the matrimonial home or to decide where the family is to live. Husband and wife both contribute. And where they are to live is, like other domestic matters of common concern, something to be settled by agreement, not determined unilaterally by the husband. Insofar as the concept of consortium - the sharing of a common home and a common domestic life, and the right to enjoy each other's society, comfort and assistance.(100)

He was also concerned that the test for capacity to marry not be set too high, noting that:

There are many people in our society who may be of limited or borderline capacity but whose lives are immensely enriched by marriage. We must be careful not to set the test of capacity to marry too high, lest it operate as an unfair, unnecessary and indeed discriminatory bar against the mentally disabled.

Equally, we must be careful not to impose so stringent a test of capacity to marry that it becomes too easy to challenge the validity of what appear on the surface to be regular and seemingly valid marriages.(101)

If a person does not have the capacity to marry, no court or tribunal or substitute decision-maker can consent to marriage on behalf of an adult who lacks the capacity to marry themselves.(102) Injunction to restrain marriage of incapable person?

However, following Munby J's analysis of the English common law, Australian Supreme Courts because of their parens patriae jurisdiction and certainly their declaratory jurisdiction together with their jurisdiction to make interim and final injunctions, may grant an injunction to restrain the marriage of someone who lacked the capacity to marry.(103)

Munby J dealt with these matters in a case in which Sheffield City Council sought an order to prevent the marriage of a young woman with an intellectual disability to an older man with an extensive history of committing sexual offences, but his judgment is confined to the preliminary issue of the definition of capacity to give a valid consent to marriage.(104)

2.5.2 Capacity to marry in Australia

The English case which is treated as the leading authority on the question of capacity to marry in both England and Australia, In the Estate of Park deceased, Park v Park, supports the proposition that a person has the capacity to marry if they are capable of understanding the contract they are entering into. To do this they must be mentally capable of appreciating that the contract involves the responsibilities normally attaching to marriage.(105) This brief formulation is built upon the statement of Sir James Hannen when President of the Probate, Divorce and Admiralty Division of the High Court of Justice in England that:*

[I]t appears to me that the contract of marriage is a very simple one, which does not require a high degree of intelligence to comprehend. It is an engagement between a man and a woman to live together and love one another as husband and wife, to the exclusion of all others.(106)

However, he went on to note that mere appreciation of the words of the promises exchanged was not enough, there had to be a real appreciation of the engagement apparently entered into.(107)

Some Australian cases show that the issue of capacity to marry is not as simple as Sir James Hannen thought, particularly when at least one of the parties has a diagnosis of dementia. Chisholm J of the Family Court of Australia noted that mere awareness of going through a marriage ceremony was not enough; a person must also understand the nature and effect of the ceremony involved. Nevertheless, he was clear from the authorities that the law does not require a person to have a detailed and specific understanding of the legal consequences of the marriage ceremony but that a valid consent involved either a general understanding of marriage and its consequences, or an understanding of the specific consequences of the marriage they were entering into for the person whose consent was in issue.(108) Challenging capacity to marry and the validity of a marriage in Australia

As already suggested, following Munby J's suggestion in Sheffield City Council v E, it may be possible to obtain an injunction in an Australian Supreme Court to restrain the marriage of someone who lacks the capacity to marry.(109) More often the way the matter has been dealt with has been an application to the Family Court of Australia for a declaration of nullity.(110) A marriage can be declared void for a short list of reasons including that the consent of either of the parties was not a real consent because:
  1. the consent was obtained by duress or fraud,
  2. a party was mistaken as to the identity of the other party or as to the nature of the ceremony performed, or
  3. a party was mentally incapable of understanding the nature and effect of the marriage ceremony.(111)
If it is proved that any one of these grounds is made out, the marriage will be declared void because of the lack of true consent on the part of one of the parties to it. However, that is not an easy matter to achieve as the onus of proof is on the person seeking the decree of nullity. In the case in which he set out his understanding of capacity to marry, AK v NK, Chisholm J dismissed the application for a declaration of nullity because he was not satisfied on the balance of probabilities that the wife lacked consent to marry.(112) He did this even though the couple had first married in 1947 but had divorced in 1993 and, at the time of their remarriage, both were in their 80s. The wife was in a nursing home suffering from dementia and under guardianship. The remarriage ceremony occurred after the husband had taken her away from the nursing home during one of his visits to her. Other family members were unaware of the remarriage for some time.

Chisholm J acknowledged that there was a problem of identifying precisely what it was that the person must understand to have the capacity to marry, a matter that was dealt with in some detail in a case in the Family Court of Western Australia.(113) In that case the husband was aged 82 and had been suffering from dementia. He married the woman with whom he had been living in a de facto relationship for 15 years although for nine months before the marriage they had been living apart. The husband had been in the hospital and the wife continued to live in the home, visiting him nearly every day. She had been his companion since 1965 and had behaved in all respects as a wife. (The husband's first wife died in 1956.) At the time of the marriage the husband had difficulty recognising his own daughters, with whom he had had minimal contact in the years previously, but had no difficulty in recognising the wife.

McCall J concluded that the husband not only understood that he was getting married but that he understood the nature and effect of the marriage ceremony as it applied to him and the particular person he married. McCall J also noted that:

The nature of the contract, and the responsibilities attaching to the particular marriage must vary from couple to couple. In the circumstances of this marriage the responsibilities were very different to many others. The parties were, perforce, to live apart because of the husband's illness and the inability of the wife to properly care for him. It was a marriage in which the husband would, from then onwards, be confined to living in a hospital or nursing home situation where appropriate nursing care was available to him. The wife, in the meantime, would continue to live in what had been their matrimonial home for 15 years. They had during their time in Mandurah been regarded as husband and wife and the wife had apparently been known in the community as Mrs Brown. Marriage, to them, did not involve living together. Nor did it involve undertaking any new responsibilities by either or any change in an existing and long standing relationship or situation. As the Reverend Barratt said in this context he assumed the husband knew what marriage was. The marriage was regularising a fact.(114)

In a 2007 case, Mullane J of the Family Court expressed the view that while the Marriage Act 1961 (Cth) does not require parties to a marriage to have a detailed and specific understanding of the legal consequences of marriage, they must have more than a general understanding of what marriage involves, they must have the capacity to understand the effect of the marriage that they are entering into.(115)

That case is a good example of a late remarriage involving a woman who had lost the capacity to give a valid consent to marry. Mrs B was an 82 year old widow with one married son and Mr S was 66 when they participated in a marriage ceremony in September 2004. Mr S began boarding at Mrs B's premises when her first husband was still alive and had been engaged for some years to assist with jobs around the house for minimal rent. Although he claimed that he and Mrs B began a relationship while her husband was alive and in a nursing home, the son stated that his mother did not mention any sort of relationship with the boarder and rather complained about him, saying words to the effect of that he was lazy, gambled his money, didn't help, was not paying his way, would never make anyone a good husband and that she would never marry anyone like him.

From 2002 subtle changes had been noticed in Mrs B's demeanour. Her son and daughter-in-law noted that she was forgetful, had begun to neglect her appearance and housework and had become suspicious of her family, accusing them of stealing her jewellery and crockery. In mid 2004 a referral was made to the local Aged Care Assessment Team who recorded neglect of personal hygiene, a mini-mental scale examination (MMSE) score of 11/30, poor planning on clock drawing test and an inappropriate, fatuous affect.

Soon after her house was put on the market and then withdrawn. Thereafter contact with her family and service providers was hampered by a change in her telephone number and Mrs B being sequestered at home behind locked gates. The son made an application to the Guardianship Tribunal for guardianship and financial management orders. The day before the hearing, in December 2004, the son found out that his mother had married the boarder.

At the Guardianship Tribunal hearing Mrs B denied having remarried and when the boarder was referred to as her husband she loudly objected to this, saying she was not married to him. Because there had been several failed attempts to have her assessed the Tribunal adjourned the hearing to allow full neuropsychological and psychiatric assessments to be made. The Tribunal made an interim financial management order with the Protective Commissioner as interim manager. She was subsequently assessed and found to have a moderate degree of cognitive impairment probably due to vascular dementia and alcohol abuse. At the next hearing Tribunal appointed the Public Guardian as Mrs B's guardian.

The son then applied to the Family Law Court to have the marriage declared a nullity. A psychiatrist who conducted a court-ordered assessment of Mrs B noted her to be dishevelled in presentation, perseverative, environmentally responsive (e.g. when showed photos of the examiner's children she claimed they were her own children) and affectively labile i.e. alternately suspicious, happy, tearful and angry. The boarder often tried to prompt her responses (e.g. he asked her to talk about love). She scored 2/24 on the MMSE. Paranoid delusions about her son and daughter-in-law were prominent. She stated she had two husbands before, whom she loved, and that they both died but she couldn't remember their names! She acknowledged the boarder as her husband but denied any intimate relationship between the two of them. In response to the question, "what happens when people marry?" she was able to reply: "they live together, help each other, stay together" and that a husband was closer than a friend.

Mullane J found that Mr S had married Mrs B for financial advantage and that was his priority. He was not motivated to act to promote her physical or emotional health, her personal hygiene, her relationships with her family or her financial security. Mullane J issued a decree of nullity. He accepted that Mrs B may have had a good understanding of what marriage was, but he found that she was mentally incapable of understanding the effect of the marriage ceremony and of considering the effect of the marriage on her.(116)

In a 2014 case, Foster J, concluded that the marriage between the respondent, the 49 year old former paid carer of a 78 year old nursing home resident, deceased by the time of the proceedings took place, was invalid because the man did not have the capacity to understand the nature and effect of his marriage to the woman. The man changed his will in favour of the respondent in contemplation of the wedding. Foster J noted:

The obligation cast upon the Respondent [wife] to adduce such evidence is reinforced by factual circumstances in this matter and the inferences arising therefrom, including, but not limited to:
  1. the age disparity between the parties to the marriage; :
  2. the nature of the previous relationship between the [wife] and the deceased in that the [wife] was a part-time carer of the deceased;
  3. the significant financial disparity between the deceased and the [wife];
  4. the motivation of the [wife] in facilitating a change to the will of the [husband] with the effect of totally excluding family beneficiaries in her own favour should she survive [her husband];
  5. the concessions made by the [wife] as to her knowledge and observations of [her husband's] behaviour evidencing cognitive incapacity and dementia over the 12 months preceding the wedding;
  6. the evidence of concerns of others as to the [wife's] motives and whether she was in fact acting in the best interests of [her husband; and
  7. the financial motivations of the [wife] in facilitating a marriage to [her husband].(117)

In a 2018 case, the Full Court of the Family Court made an order of nullity of a marriage (annulment) between the appellant and the respondent, a woman with alcohol-related brain damage and Wernicke’s encephalopathy (conditions brought on by severe alcohol abuse), and paranoid schizophrenia. Both were of Indian background, living in Australia and married in India less than two weeks after she had been discharged from hospital where she had been treated for a relapse in her psychosis. Based on additional evidence from the woman’s psychiatrist regarding her capacity on the date of the marriage, the Court found that the woman’s consent “was not a real consent” because she was unable to understand the nature and effect of the marriage ceremony.(118)

In a 2021 case, the Family Curt declared the April 2007 marriage of a woman and a man void after the man had died.(119) At the time of the marriage, the woman was aged 55 years and the man 68 years. Baumann J declared the marriage void because he found that the man did not have the capacity to understand the nature and effect of the marriage ceremony (at the time it occurred).(120)

The evidence was that a consultant neurologist had examined the man on 27 February and 22 March 2007. The neurologist’s report, based on those examinations and a Mini Mental State Examination test (12/30) conducted by the neurologist, noted that the man was suffering from a variant of Alzheimer’s Disease, with relatively well preserved language functions giving him the appearance of greater functioning than he was capable of. The neurologist estimated that the onset of the condition was about four years prior to the examinations in early 2007, prior to the wedding. He was of the opinion that the man did not have the required capacity to understand the nature and effect of the marriage ceremony on 22 March 2007 and could not have had it on the day he married in April 2007. (121)

The psychologist accepted that the man had the capacity to understand and make his own decisions about personal health care, lifestyle and accommodation choices and financial affairs that were “simple decisions” but not “complex decisions”. In this context, he saw a simple decision as one requiring the man to consider choices about day to day life whereas a complex decision would be to require the man to consider choices which may have long term consequences.(122)

Baumann J stated that; “with the benefit of hindsight and based on all the convincing and generally uncontested medical expert evidence, the man did not have the capacity to understand the nature and effect of the marriage ceremony”.(123)

In terms of the procedural requirements of a case of this kind, Bauman J noted that the nature of the marriage ceremony itself raised the presumption of regularity and that it fell upon the Applicants to rebut the presumption by establishing whether the person in question was mentally incapable of understanding the nature and effect of the ceremony. He specifically noted agreement with Chisholm J in AK & NC, that “mere awareness of going through a marriage ceremony is not enough; a person must also understand the nature and effect of the ceremony involved”.(124)

2.5.3 The standard and onus of proof when challenging capacity to marry or the validity of a marriage

It is not easy to displace the inference that when the marriage was celebrated the parties understood the nature of the ceremony and the effect of the marriage on them and gave their valid consent. The evidence to displace that inference needs to be strong.

The onus of proving the lack of capacity to consent to the marriage is on the party disputing its validity.(125) However, if there is proof of insanity generally then the burden shifts to the party asserting the validity of the marriage.

2.5.4 The assessment of the capacity to marry

As stated earlier, the standard for assessing capacity to marry is based on an assessment of the person's understanding of the nature and effect of the marriage ceremony. In making such assessments the health care professional should assess the person's overall mental status and cognitive function with a specific emphasis on the specific cognitive functions of judgement and reasoning. In particular, the expert should ascertain whether a mental disorder has influenced the person's judgment of or affections towards the proposed spouse and the person's understanding of the proposed marriage to the proposed spouse, and the responsibilities, duties and effect of marriage to that specific person.

2.6 Capacity to divorce

In a 1972 case the President of the Probate Division of the High Court of Justice in England, Sir George Baker, stated that the test for a person to give a valid consent to the dissolution of their marriage was "exactly the same as the test for the validity of the contract of marriage" and that, although the husband had a mental illness, he had given a valid consent to the dissolution of his marriage as he had understood the nature of his consent and appreciated its effect.(126) However, Baker P stated that a guardian ad litem could not give such a consent on behalf of an incapable person.(127)

In an earlier case Ungoed-Thomas J, sitting in the Court of Protection, took the view that the Court could take a role in the matter.(128) Early in the life of the Probate Division, in 1880, the then President of the Division, Sir James Hannen, specifically considered the matter and held that the court could empower the then equivalent of an administrator to commence proceedings for divorce on behalf of the person whose estate they were managing.(129) His decision was upheld by the full court of the Division.(130)

2.6.1 Capacity of substitute decision-makers to initiate or continue divorce proceedings on behalf of an incapable person New South Wales

In New South Wales at least the approaches of Hannen P and Ungoed-Thomas J have been followed. The Supreme Court in its protective jurisdiction may empower an administrator to commence or defend matrimonial causes proceedings on behalf of the person whose estate they are managing with the Court having a supervisory role. Powell J of the NSW Supreme Court dealt with the issue of whether an administrator could, on behalf of the person whose estate they were managing, commence or defend proceedings relating to the dissolution of the person's marriage or proceedings to have their marriage declared void. He considered it well established that, while such litigation when being managed by an administrator or incapable person (for whom an administrator could be appointed) was governed by the rules and practice of the Family Court of Australia, the Supreme Court could make orders and give directions or authorities for the conduct of the litigation in the name, or on behalf, of the person whose estate was being managed.(131)

The Supreme Court has a discretion whether or not to give such give directions or authorities. When deciding whether or not to exercise the discretion, the Court will consider whether the proposed proceedings will be for the benefit of the person whose estate is being managed. The Court will not limit itself to merely material considerations or to considerations relating only of the person whose estate is being managed, but will consider the interests of members of their family.(132) Powell J indicated that the Supreme Court's jurisdiction applied not only to those whose estates were being managed but also to other incapable persons.

Powell J indicated that the following matters may be of importance in particular cases:
  1. the wishes of the person whose estate was being managed or the incapable person in relation to the proposed proceedings,
  2. the likely effect of the proposed proceedings on their domestic arrangements,
  3. the likely financial consequences if the proposed proceedings were sanctioned, or not sanctioned.(133) Canada

Because the common law on the question of whether or not administrators may continue or commence divorce, annulment of marriage, separation, property settlement or similar post marriage proceedings appears to be developing, it is useful to note approaches being taken in other jurisdictions. In Canada there appear to be two lines of authority. One is to follow Hannen P and allow administrators to commence proceedings for divorce on behalf of the person whose estate they were administering, provided that seeking a divorce was in the best interests of that person, to continue such proceedings begun by that person or to defend such proceedings taken against the person whose estate they were administering.(134) The second line of authority is to allow the administrator continue divorce proceedings commenced by the person now lacking the capacity to continue to conduct them, provided to do so was in the best interests of that person. That line of authority also allows an administrator to commence divorce proceedings on behalf of the person whose estate they were managing but only if they continue to have the capacity to divorce which is seen as requiring a lower level understanding and thus capacity, than giving instructions in relation to the divorce proceedings.(135)

In the 1997 case setting out the second line of authority, Benotto J of the Ontario Court of Justice noted the opinion of Dr William Molloy, one of the leading medical researchers in the field of decision-making capacity, that different aspects of daily living and decision-making are now viewed separately and that the ability to manage finances, consent to treatment, stand trial, manage personal care, make personal care or health decisions, all require separate decision-making capabilities and assessments. Benotto J then went on to identify three levels of capacity relevant to divorce namely, capacity to separate, capacity to divorce and capacity to instruct counsel in connection with the divorce.(136)

Benotto J considered separation as the simplest act, requiring the lowest level of understanding which was the person knowing with whom they did or did not want to live. Next was divorce, which while still simple, required "a bit more understanding". It required the desire to remain separate from and to be no longer married to one's spouse. While it involved the undoing of the marriage contract, something which has been described as the essence of simplicity, not requiring a high degree of intelligence to comprehend, it followed that if marriage was simple, divorce must be equally simple.(137)

In relation to the capacity to instruct a lawyer, Benotto J noted that there was a distinction between the decisions a person makes regarding personal matters such as where or with whom to live and decisions regarding financial matters. Financial matters require a higher level of understanding. This put the capacity to instruct a lawyer significantly higher on the competency hierarchy than capacity in relation to the other two matters because it involved the ability to understand financial and legal issues.(138) United States of America

The US Courts have recognized that the mental capacity required for divorce is the same as required for entering into marriage. It is also the established position that a mentally incompetent persons cannot sue for dissolution of marriage, either on their own behalf or by a guardian or next friend. The basis for the rule is said to be that the decision to seek dissolution of one's marriage is so strictly personal that the marriage should not be dissolved except with the personal consent of the party seeking divorce. That consent cannot be given when the party is mentally incompetent.(139) However, the established position is not seen as applying in every case. In a 1985 case the Supreme Court of Washington State commented:

The collected cases often rely upon the truism that a decision to dissolve a marriage is so personal that a guardian should not be empowered to make such a choice for the incompetent. As a general proposition that rationale is valid. However, in these days of termination of life support, tax consequences of virtually all economic decisions, no-fault dissolutions and the other vagaries of a vastly changing society, we think an absolute rule denying authority is not justified nor in the public interest.(140)

In a 1993 decision, In re Ruvalcuba, the Court of Appeals of Arizona gave considerations more protective of the incapable adult as its reasons for moving away from the absolute rule. The Court said:

To deny incapacitated spouses the means to withdraw from abusive, or merely extinguished marriages, by leaving them captive to the representations of their competent spouses is, at best, to deprive them of their dignity and, at worst, to potentially condemn them to exploitation, physical injury and, possibly even death at the hands of the competent spouse. This is a result that a system of justice should not and cannot sanction.(141)

The Court found nothing in the legislation expressly prohibiting a guardian ad litem from filing and pursuing an action for dissolution of marriage on behalf of an incompetent adult. It also found that such an action may be brought by the guardian (meaning administrator in the Australian context) as it was within an administrator's general powers to act on behalf of the person whose estate they were administering.(142)

In a 2004 case a Court of Appeal in California held that a conservator (an administrator) with full management and control of an incapable person's estate could be authorized to act to the extent necessary to protect the property interests of the person whose estate they were administering and could do this by seeking an order for legal separation. They would be under a duty to initiate such proceedings where it was necessary to do so to protect the incapable person's interests. That outcome could be achieved without having to seek a divorce.(143)

2.7 Conclusion

In conclusion, increased longevity means we are living in relationships to an advanced age, often with cognitive impairment, conferring vulnerability to a range of influences on these profoundly personal aspects of decision-making, namely intimacy, marriage and divorce. As the Courts have identified, this is one area where proxy decision-making can be problematic, especially placing adult children in the place of making intimate or partnership decisions on behalf of parents. If not, then how do we promote the autonomy and best interests of the subject person? How does a marital couple, one of whom has dementia and is in residential care, continue to pursue an intimate relationship, or tolerate the person with dementia engaging, with assent, in an intimate relationship with another partner? If an elderly man becomes estranged from, and wishes to divorce his wife of 40 years due to dementia-related judgment deficits fuelled by his adult children, how can we achieve rapprochement between the couple, even if we identify undue influence? Consideration of these issues are equally owed to LGTBQI people engaging in intimate relationships, marriage and divorce. These are the kind of dilemmas increasingly confronted by medical and legal practitioners alike. As both common law and clinical practice develop in this area, best practice must be driven by human rights principles of promotion of autonomy, and respect for relationships, while first identifying, and then safeguarding against undue influence and elder abuse.


1 : Jennifer Nedelsky, ‘Reconceiving autonomy: Sources, thoughts and possibilities’ (1989) 1(7) Yale Journal of Law and Feminism, 7,36; Carolyn Ells, Matthew R Hunt, Jane Chambers-Evans, ‘Relational autonomy as an essential component of patient-centred care’ (2011) 4(2) International Journal of Feminist Approaches to Bioethics 79, 101.

2 : Peisah C, Brodaty H, Quadrio C, "Family conflict in dementia: prodigal sons & black sheep" International Journal of Geriatric Psychiatry (2006) 21(5):485-492.

3 : Peisah C, Burns K., Edmunds S. Brodaty H. (2018) Rendering visible the previously invisible in health care: the ageing lesbian, gay, bisexual, transgender and intersex (LGBTI) communities Medical Journal Australia 6;209(3):106-108

4 : This appears to have changed as a result of the restatement of the standard of proof required to establish testamentary undue influence in Nicholson v Knaggs [2009] VSC 64. See also Tobin v Ezekiel; Estate of Lily Ezekiel [2011] NSWSC 81; Petrovski v Nasev; Estate of Janakievska [2001] NSWSC 1275 and Brown v Wade [2010] WASC 367.

5 : Peisah C. (2017) Capacity Assessment In Chiu H & Shulman K. (Ed.,) Mental Health and Illness Worldwide: Mental Health and Illness of the Elderly. Springer HbMIE.

6 : Shulman K, Cohen CA, Kirsh FC, Hull IM, Champine PR "Assessment of testamentary capacity and vulnerability to undue influence" American Journal of Psychiatry (2007) 164(5): 722-727.

7 : Peisah C, Brodaty H, Quadrio C. (2006) op cit (footnote 1).

8 : Knight B. Psychotherapy with older adults. Sage: California 1986 p155.

9 : Neidhardt ER, Allen JA. Family Therapy with the elderly, Sage: California 1993 p59.

10 : Strawbridge WJ, Wallhagen MI, "Impact of family conflict on adult child caregivers" (1991) Gerontologist 31: 770-777.

11 : Kazui H, Hashimoto M, Hirono N et al, "A study of remote memory impairment in Alzheimer's disease by using the family line test" (2000) Dement Geriatr Cogn Disord, 11, 53-8.

12 : Fromholt P, Larsen SFJ, " Autobiographical memory in normal aging and primary degenerative dementia (dementia of Alzheimer type)" (1991) Gerontol 46: 85-91.

13 : Masterman, D.L., and Cummings, J.L. (1997) Frontal-subcortical circuits: the anatomic basis of executive, social and motivated behaviors J Psychopharmacol, 11, 107-14.

14 : Kertesz A.and Clydesdale S. "Neuropsychological deficits in vascular dementia vs Alzheimer's disease" (1994) Arch Neurology, 51, 1226-1231.

15 : Ready RE, Ott BR, Grace J, et al. "Apathy and executive dysfunction in mild cognitive impairment and Alzheimer disease" (2003) Am J Geriatr Psychiatry, 11, 222-228.

16 : Peisah C, Brodaty H, Quadrio C. (2006) op cit (footnote 1)

17 : Ibid.

18 : LLJ [2014] QCAT 275

19 : Ibid. [25].

20 : Ibid. [28].

21 : Pyke KD, Bengston VL, "Care more or less: individualistic and collectivist systems of family elder care" Journal of Marriage and the Family 1996; 58, 379-392.

22 : Peisah C, Brodaty H, Quadrio C. (2006) op cit (footnote 1).

23 : Shulman K, Cohen CA, Kirsh FC, Hull IM, Champine PR. (2007) op cit (footnote 3).

24 : Cockerill, J, Collier B. Maxwell K. (2005) "Legal requirements and current practices", ch 2 in Mental Capacity, Collier B, Coyne C, Sullivan K (eds), The Federation Press, Sydney, 2005, p 52.

25 : World Health Organisation (2006) Defining Sexual Health: report of a technical consultation on sexual health, 28-31 January 2002, Geneva. Geneva, WHO.

26 : Intellectual Disability Rights Service, Questions of Rights - A guide to the law and rights of people with an intellectual disability, Chippendale, Redfern Legal Centre Publishing, 1992, p.40.

27 : Australian Law Reform Commission, Accessed August 2014.

28 : Australian Law Reform Commission Accessed August 2014.

29 : Sexual Offences Act 2003 (UK) s 74.

30 : Criminal Law Review Division, NSW Attorney General's Department, The Law of Consent and Sexual Assault, Discussion Paper (2007), 12.

31 : Crimes Act 1900 (NSW) s 61HA(4)(a); Crimes Act 1958 (Vic) s 36(e); Criminal Law Consolidation Act 1935 (SA) s 46(f); Criminal Code (Tas) s 2A(2)(i); Crimes Act 1900 (ACT) s 67(1)(i); Criminal Code (NT) s 192(2)(d). See also MCCOC, cl 5.2.3, 38. Crimes Act 1900 (NSW) s 61HA(4)(a) specifically provides that a person does not consent to sexual intercourse where that person 'does not have the capacity to consent to the sexual intercourse, including because of age or cognitive capacity'.

32 : Criminal Code (Qld) s 348(1).

33 : [1957] HCA 74; (1957) 98 CLR 249.

34 : Ibid. 261.

35 : Ibid. 262.

36 : R v Morgan [1970] VicRp 43; [1970] VR 337, 341; [1970] VicRep 43.

37 : Ibid. 342.

38 : X City Council v MB, NB and MAB (by his Litigation Friend the Official Solicitor) [2006] EWHC 168 (Fam) [74]; [2006] 2 FLR 968.

39 : Re E (an Alleged Patient); Sheffield City Council v E and S [2004] EWHC 2808 (Fam), [2005] Fam 326, [2005] 1 FLR 965 and X City Council v MB, NB and MAB (by his Litigation Friend the Official Solicitor) [2006] EWHC 168 (Fam), [2006] 2 FLR 968. Note that these cases were decided before the Mental Capacity Act 2005 (UK) came into force [in 2007]. Note also that, at the time of writing Munby J was President of the Family Division of the High Court of Justice of England and Wales.

40 : IM v LM & Ors [2014] EWCA Civ 37.

41 : Mental Capacity Act 2005 (UK), s 3(1). Note that s. 3(4) of the Act provides that information relevant to a decision includes information about the reasonably foreseeable consequences of deciding one way or another or failing to make a decision.

42 : D Borough Council v AB [2011] EWCOP 101 [[42].

43 : Ibid. [42].

44 : Ibid. [4] and [5].

45 : Ibid. [44].

46 : Ibid. [45] and [46].

47 : R v Cooper [2009] UKHL 42 [27].

48 : D Borough Council v AB [2011] EWCOP 101 [33].

49 : Ibid. [35] and [36].

50 : IM v LM & Ors [2014] EWCA Civ 37.

51 : Ibid. generally and [79] in particular

52 : Ibid. [75] - supporting a distinction made by Mostyn and Hedley JJ see, [46] to [48].

53 : Ibid. [80] - endorsing the view of Bodey J in In Re A (Capacity: Refusal of Contraception) [2010] EWHC 1549, (Fam)

54 : Ibid. [81].

55 : IM v LM & Ors [2014] EWCA Civ 37.

56 : IM v LM & Ors [2014] EWCA Civ 37 [1].

57 : Ibid. [2]

58 : British Medical Association and The Law Society, Assessment of Mental Capacity - Guidance for doctors and lawyers, London, BMJ Books, 2nd ed, 2004, p.100.

59 : Lightbody, E. (2014). Sexuality and Dementia: For Better or Worse. Old Age Psychiatrist,58, Sex Dementia 1- 11

60 : Kamel H.K, Hajjar RR, "Sexuality in the nursing home, Part 2:managing abnormal behaviour-legal and ethical issues" Journal of American Medical Director's Association, (2004) 5(S2):S48-S52.

61 : Ehrenfeld M, Bronner G, Tabak N, Alpert R, Bergman R. "Sexuality among institutionalized elderly patients with dementia" Nursing Ethics (1999) 6(2): 144-149.

62 : Berger JT, "Sexuality and intimacy in the nursing home: a romantic couple of mixed cognitive capacities" Journal of Clinical Ethics (2000); 11(4): 309-313.

63 : Hayward LE, Robertson N, Knight C Inappropriate sexual behaviour and dementia: an exploration of staff experiences. Dementia (London). 2013 Jul;12(4):463-80.

64 : De Medeiros K., Rosenberg P.B., Baker AS., Onyike C.U (2008) Inappropriate sexual behaviour in elders with dementia living in residential care Dementia and Geriatric Cognitive Disorders 26; 370-377.

65 : Sabat SR. "Capacity for decision-making in Alzheimer's disease: selfhood, positioning and semiotic people" Aust N Z J Psychiatry. (2005) 39(11-12):1030-5.

66 : Ibid.,

67 : Bauer M., Featherstone D., Nay R., Tarzia L., Beattie E. (2013) Sexuality Assessment Tool (SexAT) for residential aged acre facilities. Available from the Australian Centre for Evidenced Based Aged Care, La Trobe University, Melbourne VIC. 3086; Bauer M., Featherstone D., Tarzia L., Nay R., Beattie E. Supporting residents' expression of sexuality: the initial construction of a sexuality assessment tool for residential aged care facilities. BMC Geriatr. 2014 Jun 30;14:82.

68 : British Medical Association and The Law Society, (2007) op cit, p. 100 (footnote 20).

69 : British Medical Association and The Law Society, (2007) op cit, p. 100 (footnote 20).

70 : Peisah C. Tiwana Benbow SM. Sexual expression, consent and capacity in residential care: a person-centred, human rights approach Book of Proceedings of the 1st Annual International Capacity Conference

71 : United Nations Convention on the Rights of Persons with Disabilities (UNCORPD) (2012).

72 : Lyden M. 2007 Assessment of sexual consent capacity Sexuality and Disability 25: 3-20

73 : Peisah C., Sorinmadeayo D. Mitchell L., Hertogh C., (2013) Decisional capacity: towards an inclusionary approach The International Psychogeriatric Association Task Force on Capacity International Psychogeriatrics 25 (10): 1571-9

74 : Ames, T., Samowitz, P.: Inclusionary standard for determining sexual consent for individuals with developmental disabilities. Ment. Retard. 4, 264-268 (1995)

75 : Lichtenberg PA, Strzepek DM. (1990) Assessments of institutionalized dementia patients' competencies to participate in intimate relationships. Gerontologist. 30(1):117-20

76 : Lightbody, E. (2014). Sexuality and Dementia: For Better or Worse. Old Age Psychiatrist,58, Sex Dementia 1- 11.

77 : British Medical Association and The Law Society, (2007) op cit, p. 100 (footnote 20).

78 : Haddad PM, Benbow SM (1993) Sexual problems associated with dementia: part 1.problems and their consequences. International Journal of Geriatric Psychiatry 8 547-551.

79 : Bardell A1, Lau T, Fedoroff JP (2011) Inappropriate sexual behavior in a geriatric population. Int Psychogeriatr. 23(7):1182-8

80 : Haddad PM, Benbow SM (1993) Sexual problems associated with dementia: part 2.aetiology, assessment and treatment. International Journal of Geriatric Psychiatry 8 631-637.

81 : Tucker I.. (2010) Management of inappropriate sexual behaviors in dementia: a literature review International Psychogeriatrics; 22(5) 683-692; Rosen, T., Lachs, MS., Pillemer K. (2010) Sexual Aggression between Residents in Nursing Homes: Literature Synthesis for an Underrecognized Issue J Am Geriatr Soc. 58(10): 1970-1979.

82 : Benbow SM Beeston D., Benbow, GAT, Beeston L.(2013) Sexual problems in older adults In N. Kar and G.C. Kar (Ed) Comprehensive Textbook of Sexual Medicine Jaypee Brothers Medical Publishers: India.

83 : De Medeiros K., Rosenberg P.B., Baker AS., Onyike C.U (2008) Inappropriate sexual behaviour in elders with dementia living in residential care Dementia and Geriatric Cognitive Disorders 26; 370-377.

84 : United Nations Convention on the Rights of Persons with Disabilities (UNCORPD) (2012).

85 : Kamel H.K, Hajjar RR, (2004) op cit, (footnote 21).

86 : Ehrenfeld M, Bronner G, Tabak N, Alpert R, Bergman R, (1999) op cit, (footnote 22).

87 : Berger JT (2000) op cit, (footnote 23).

88 : Ibid.,

89 : Davis J.K. "The concept of precedent autonomy, (2002) Bioethics 16: 114-133.

90 : Berger JT (2000) op cit, p311 (footnote 23).

91 : Australian Law Reform Commission, Accessed August 2014.

92 : De Medeiros K., Rosenberg P.B., Baker AS., Onyike C.U (2008) Inappropriate sexual behaviour in elders with dementia living in residential care Dementia and Geriatric Cognitive Disorders 26; 370-377.

93 : Boni Saenz A. (2016) Sexual Advance Directives Alabama Law Review, Fall, 1-48.

94 : Boni Saenz A. (2016) Sexual Advance Directives Alabama Law Review, Fall, 1-48.

95 : R v. J.A. (2010), 100 O.R. 3d at 677

96 : R. v. J.A., 2 S.C.R. 440 at 66.

97 : Davis J. (2009) Precedent Autonomy, Advance Directives, and End‐of‐Life Care, The Oxford Handbook of Bioethics, DOI: 10.1093/oxfordhb/9780199562411.003.0016).

98 : Sheffield City Council v E [2004] EWHC 2808 (Fam) [68]. Note that in A Local Authority v AK (by his litigation friend) & Others [2012] EWHC B29 (COP), Bodey J considered the test of capacity to marry [17] to [20] and applied the approach set out by Munby J (as he then was) in the Sheffield Case. In that case the question was raised, but not pressed as it was not necessary to decide, as to whether an aspiring spouse needed to appreciate that their financial position may be affected by the concept of marital "sharing", particularly if the marriage failed and there were financial remedy proceedings. A further issue was raised, but not pursued, namely whether a foreseeable consequence of marriage needed to be understood and weighed up -that is the likely effect [of the marriage] "on relationships within one's own family". See [20].

99 : Ibid. [83]-[84].

100 : Ibid. [131].

101 : Ibid. [144]-[145].

102 : Ibid. [100].

103 : Ibid. [[96] and [108].

104 : Sheffield City Council v E [2004] EWHC 2808 (Fam).

105 : [1954] P 112, 127. For recent Australian acceptances of the Park case see, AK v NC [2005] Fam C 1006 and Berrand v Coxall [1999] QSC 352 [13].

106 : Durham v Durham [1885] UKLawRpPro 18; (1885) 10 PD 80, 82.

107 : Ibid.

108 : AK v NC [2005] Fam C 1006 [21], [24] and [29].

109 : [2004] EWHC 2808 (Fam) [108].

110 : Family Law Act 1975 (Cth) ss 51 and 113

111 : Marriage Act 1961 (Cth) s 23B(1)(d).

112 : [2005] Fam C 1006.

113 : Marriage of Brown; re Dunne [1982] FamCA 21; (1982) 8 Fam LR 1.

114 : Ibid. 9.

115 : S. 23B(1)(d)(iii) and Babich & Sokur and Anor [2007] FamCA 236 [249] and [255]. See also Oliver (Deceased) & Oliver [2014] FamCA 57.

116 : Ibid. [256].

117 : Oliver (Deceased) & Oliver [2014] FamCA 57

118 : Sikander & Vashti [2018] FamCAFC 111, [50].

119 : Alford & Lyden [2021] FamCA 38.

120 : Ibid. [47]. Note also AK & NC [2003] FamCA 10, [24], which is also referred to in section 2.5.2 above.

121 : Ibid. [40].

122 : Ibid. [40].

123 : Ibid. [47].

124 : AK & NC [2003] FamCA 1006 [24].

125 : Cooper v Crane [1891] UKLawRpPro 50; (1891), P 369, 376.

126 : Mason v Mason [1972] P 302, 306. In the Estate of Park deceased, Park v Park [1954] P 112 was cited as authority.

127 : Mason v Mason [1972] P 302, 306. See also Masterman-Lister v Brutton & Co [2002] EWCA Civ 1889 [57].

128 : In re W (EEM) [1971] 1 Ch 123.

129 : Baker v Baker [1880] UKLawRpPro 14; (1880) 5 PD 142.

130 : Baker v Baker [1880] UKLawRpPro 34; (1880) 6 PD 12.

131 : Re An Incapable Person D [1983] 2 NSWLR 590, 593

132 : Ibid.

133 : Ibid. 595. For an example from Western Australia see, Re PD [2008] WASAT 13.

134 : Re Schwartz [1947] 2 WWR 979 and Beadle v Beadle (1947) 7 DLR (4th) 762.

135 : Calvert v Calvert (1997) 32 OR (3d) 281 and O (MK) v C (ME) 2005 BCSC 1051.

136 : Calvert v Calvert (1997) 32 OR (3d) 281 [52]-[53].

137 : Ibid. [53]-[54].

138 : Ibid. [55]-[56].

139 : In the Marriage of Kutchins 482 NE 2d 1005 (1985). See also In the Marriage of Burgess 707 NE 2d 125 (1998), but note the views of Cousins J on the need to change the law, 129-130.

140 : In re the Marriage of Gannon 702 P 2d 465, 467 (1985).

141 : 850 P 2d 674, 683-684 (1993).

142 : Ibid. 684.

143 : Michael J v Superior Court 15 Cal Rptr 3d 196, 200 (2004). See also Michael J v Superior Court 2007 WL 1207261.

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