A Local Authority v JB (by his litigation friend, the Official Solicitor)  EWCA Civ 735 (appeal of the first instance decision of Mrs Justice Roberts, heard by Sir Andrew McFarlane, Lord Justice Singh and Lord Justice Baker)
- Sexual relations
- Mental Capacity Act 2005
- The Court reframed the consideration of capacity from “whether the person has capacity to consent to sexual relations” to “whether the person has capacity to decide to engage in sexual relations” – Lord Justice Baker’s view is that this is how the question of capacity with regard to sexual relations should normally be assessed in most cases.
- The issue of the other person’s consent is “relevant information” for sexual relations.
- The test for capacity regarding sexual relations should remain as simple and straightforward as possible.
- Previous case law indicates that “relevant information”
- The nature, character and mechanics of the act of sexual intercourse;
- The fact that P can say yes or no to having sexual relations and is able to decide whether to give or withhold consent;
- That a reasonably foreseeable consequence of heterosexual intercourse is that the woman will become pregnant; and
- That there are health risks involved (e.g. sexually transmitted and transmissible infections) which can be reduced by the taking of precautions such as the use of a condom.
- It is important to strike a balance between P’s autonomy, protecting vulnerable individuals, and the administration of justice.
- Assessors may wish to consider the following to reflect the additional factor for “relevant information” and how they frame the question in assessing capacity in relation to sexual relations:
- Updating any guidance;
- Training for relevant staff; and
- Whether it is appropriate, depending upon each individual circumstance, to review previous capacity assessments conducted in relation to sexual relations.
- Questions such as whether all of the “relevant information” is applicable in every case or whether only those factors which are factually relevant need to be considered, remain unanswered as the Court of Appeal did not directly address/pass judgment on the wider aspects of “relevant information” for sexual relations.
The Courts have historically adopted a view that requiring an understanding of consent in terms of sexual relations, went above and beyond the general legal test for capacity in relation to sexual relations.
In this case, the Court of first instance held that the question of capacity to consent to sexual relations was directed to the “nature of the activity” rather than to the identity of the sexual partner therefore the “information relevant to the decision” did not include whether or not a partner was able to, or indeed had given, consent. The Court of Appeal (“CoA”), however, recognised the recent changes to the “relevant information” for capacity assessments for use of social media. It also considered the crossover between the CoP and wider justice systems.
The CoA ultimately decided that “the other person must at all times be consenting to sexual relations” is fundamental to the “relevant information” for the functional test of capacity assessment in relation to sexual relations. This might be framed as “the fact that the other person must have capacity to consent to the sexual activity and must in fact consent before and throughout”.
The CoA has remitted the case back to the High Court for it to determine whether or not JB has or lacks capacity regarding sexual relations (with interim orders being made that JB did not have capacity to make decisions about engaging in sexual relations).
This case concerns a 36 year old man (“JB”) with a complex form of autism, impaired cognition, severe epilepsy and Asperger’s Syndrome. Court of Protection proceedings were brought to address whether JB had capacity to make a number of decisions (including around contact, residence, access to social media, arrangements for his care and conducting legal proceedings) as well as in relation to sexual relations. There was agreement between all parties that JB lacked capacity in respect of all of the other domains. An issue remained as to his capacity regarding sexual relations.
JB had a strong desire to have a girlfriend and engage in sexual relations; however, his care plan had restrictions within it due to his consistent disinhibited behaviour towards women. JB’s responses to discussions around sexual relations indicated that his understanding about consent, and the fact that it could be withdrawn after being given was reported as being “fundamentally lacking”.
- Capacity is decision-specific and the “relevant information” for the functional test depends upon the issue of capacity that is being determined (Para 91);
- Whilst the list of “excluded decisions” set out in s.27 Mental Capacity Act 2005 (i.e. those which cannot be made on behalf of a person who lacks capacity), includes “consenting to have sexual relations” – that doesn’t mean that the assessment of capacity can only be in relation to whether P can consent to sexual relations (Para 92);
- The “fundamental decision” in assessing capacity in relation to sexual relations is whether to engage in sexual relations (Para 92);
- Sexual relations between human beings are mutually consensual – a person who is unable to understand that sexual relations must only take place when, and only for as long as, the other person is consenting, is unable to understand a fundamental part of the information relevant to the decision as to whether or not to engage in such relations (Para 94);
- The inclusion of an understanding of the other person’s consent as part of the relevant information does not shift the test towards being person-specific not decision-specific, but instead ensures that all “manifestly relevant” information relating to capacity is considered (Para 95);
- To leave [matters such as consent] to the criminal justice system would be an abdication of the fundamental responsibilities of the Court of Protection, which include the duty to protect P from harm (Para 97);
- Although the Court of Protection’s principal responsibility is towards P, it is part of a wider system of justice which exists to protect society as a whole. The Mental Capacity Act 2005 and the Court of Protection are part of a system of law and justice in which it is recognised that sexual relations between two people can only take place with the full and ongoing consent of both parties (Para 98);
- Whilst this position moves on from previous case law, it is not entirely inconsistent with those authorities (Para 99):
- B v A Local Authority  EWCA Civ 913 - “what comprises relevant information for determining an individual’s capacity to consent to sexual relations has developed and become more comprehensive over time”
- IM v LM and others  EWCA Civ 37 - “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”
- “The fact that the other person must have the capacity to consent to the sexual activity and must in fact consent before and throughout the sexual activity” is included in “relevant information” (Para 100);
- The question remains as to whether all of the “relevant information” needs to be considered in each case when assessing capacity to engage in sexual relations – or whether it is only the “relevant information” which is factually applicable to the current circumstance (Para 101);
- The notion that “you should only have sex with someone who is able to consent and gives and maintains consent throughout” is not confined to the criminal legal consequences, instead it protects both participants from serious harm (Para 106);
- Consent from both parties is something which any person engaging in sexual relations has to consider at all times and is not “a burden which a capacitous individual may not share and may well be unlikely to discharge” (Para 107); and
- The situation where, on occasion, someone genuinely makes a mistake about whether their partner is consenting [as argued by JB’s representative in relation to capacitous individuals not being held to the same standard] is entirely distinguished from the situation where one person “does not understand that the other person has to give and maintain consent” (Para 108).