Last week’s Court of Appeal judgment in A Local Authority v JB, changes the way in which lawyers, social care professionals and others should approach mental capacity concerning sexual relations.
The judgment develops the law in 2 ways:
- Those assessing capacity should focus not on whether a person has capacity to consent but on whether they have capacity to decide to engage in sexual relations
- When assessing capacity to make this decision, the relevant information will now include the fact that the other person must have the capacity to consent to the sexual activity and must in fact consent before and during it.
It remains to be seen whether there will be an appeal to the Supreme Court.
Background to the case
JB was a 36-year-old man with a diagnosis of autistic spectrum disorder combined with impaired cognition. He lived in a supported residential placement with a comprehensive care plan which restricted his ability to socialise and access the community.
These restrictions had been imposed primarily due to his tendency to behave inappropriately towards women. He wished to have a girlfriend and engage in sexual relations.
Issues
The question raised by the parties was whether, to have capacity to consent to sexual relations, a person must understand that the other person must consent.
However, the Court of Appeal reframed the issue. The question, it said, was “whether a person, in order to have capacity to decide to have sexual relations with another person, needs to understand that the other person must at all times be consenting…” (emphasis added).
The Court’s judgment
What principles are relevant?
Baker LJ (giving sole judgment) identified three fundamental principles that had to be balanced when deciding this issue:
- the principle of autonomy;
- the need to protect the vulnerable; and
- the principle that the Mental Capacity Act and Court of Protection are part of a wider system of law and justice in which sexual relations between two people can only take place with the full and ongoing consent of both parties.
In relation to the third principle, Baker LJ said that the Court of Protection has an obligation not to act in a way that is incompatible with ECHR rights and that although the focus will usually be on P, this extends to rights of others.
What is the proper question to ask when assessing capacity regarding sexual relations?
Baker LJ noted that previous cases had “almost exclusively” analysed the issue in terms of capacity to consent to sexual relations.
However, in his view, “giving consent to sexual relations is only part of the decision-making process”. The “fundamental decision is whether to engage in sexual relations”.
Therefore, Baker LJ found that in most cases the proper approach will be to ask whether P has capacity to decide to engage in sexual relations.
What is the “relevant information” for this issue?
Baker LJ then went on to look at what the “relevant information” is when assessing capacity regarding sexual relations.
He found that when the question is expressed in terms of capacity to decide to engage in sexual relations, rather than capacity to consent,
“…it becomes clear that the ‘information relevant to the decision’ inevitably includes the fact that any person with whom P engages in sexual activity must be able to consent to such activity and does in fact consent to it” [94].
Baker LJ set out 5 factors that may be included in the “relevant information”:
“100. In summary, when considering whether, as a result of an impairment of, or disturbance in the functioning of, the mind or brain, a person is unable to understand, retain or use or weigh information relevant to a decision whether to engage in sexual relations, the information relevant to the decision, may include the following:
- the sexual nature and character of the act of sexual intercourse, including the mechanics of the act;
- 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;
- 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 sexual intercourse between a man and woman is that the woman will become pregnant; and
- that there are health risks involved, particularly the acquisition of sexually transmitted and transmissible infections, and that the risk of sexually transmitted infection can be reduced by the taking of precautions such as the use of condom”.
Baker LJ left open the question of whether all five factors must be included in the ‘relevant information in every case [101].
What does the judgment mean for similar cases in future?
There is likely to be further litigation on how far the list of factors set out in the judgment are relevant in each case. For example, will the possibility of pregnancy be relevant information for someone in a same sex relationship? Previous case law suggests it may not.
However, Baker LJ’s observation that the relevant information will “inevitably” include the fact that the other person must consent suggests that this factor may always be relevant.
The comments about the Court of Protection’s wider role in the justice system, and its obligations under the ECHR, may be raised in other cases where P may pose a risk to others. The judgment in A Local Authority v JB [2020] EWCA Civ 735 is available on Bailii.