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Home > Judgments > 2019 archive

JB (Capacity: Consent To Sexual Relations And Contact With Others) [2019] EWCOP 39

Court of Protection judgment considering the test for capacity to consent to sexual relations: whether the need for P to understand the voluntary nature of sexual activities should extend to an understanding of full consent from sexual partners.

Background
JB has autism and impaired cognition. He lacked capacity to conduct the proceedings and was represented by the Official Solicitor.  JB wished to find a girlfriend with whom he could develop a relationship. Restrictions were imposed upon his ability to socialise freely to prevent him behaving in a sexually inappropriate manner towards women.  On the evidence, JB lacked the insight or ability to communicate appropriately with women to whom he was attracted.  There was concern that his behaviour, if unrestrained, may result in his exposure to the criminal justice system and risk to potentially vulnerable females. 

The principle issue before the court was whether JB had capacity to consent to sexual relations.  A best interests hearing was listed for a later date.  The ability to understand the concept of and the necessity of one's own consent is fundamental to having capacity. What comprises 'relevant information' for determining capacity to consent to sexual relations has developed and become more comprehensive.  The parties asserted that there was a lacuna in the law: does the "information relevant to the decision" within s.3(1) MCA 2005 include the fact that the other person engaged in sexual activity must be able to, and does in fact, from their words and conduct, consent to such activity.

The LA sought to expand the established test.  It submitted that JB being able to understand the consent of the other party was a highly relevant factor to protect him from committing a criminal offence.

The OS contended that the LA's approach amounted to an impermissible attempt to raise the bar from the deliberately low level at which it had been set to avoid discriminating against vulnerable adults with cognitive challenges who, despite those challenges, should be entitled to exercise one of the most basic and instinctive functions of human existence. It would incorporate into the s.3(1) "information" a requirement that those who are alleged to pose a risk of sexual offending must acquire a sufficient understanding of the criminal law.  The OS submitted that the MCA 2005 should not be used as a means of imposing restrictions on P which are designed to avoid criminal offending or for protection of the public.  While that may be a consideration in a best interests decision, it should not be an element of the test for capacity per se.  

The LA accepted that while it is permissible to weigh the risk of P entering the criminal justice system and/or being the target of some form of vigilante violence as part of a best interests analysis, it is not permissible to impose a restriction on his liberty in order to prevent the possibility of offending insofar as it purely risked harm to those other than P. In this context the protection of others falls within the Mental Health Act 1983 as opposed to the MCA 2005. 

Another aspect of the case was whether JB had the capacity to identify whether an individual with whom he may wish to have sexual relations is safe and, if not, whether he has capacity to make decisions as to the support he is likely to require when having contact with a proposed sexual partner.

Discussion
Mrs Justice Roberts sets out the legal framework and discusses the development of the case law in detail [¶15-49 and ¶50-86]. The basic principles are helpfully restated at paragraph 66.  The statutory criteria in ss 1 to 3 MCA 2005 are the bedrock in which the individual tests are rooted. The tests are general guidance to be expanded or contracted to the facts of the particular case.

Roberts J draws upon the principles distilled by Hayden J in London Borough of Tower Hamlets v NB v AU [2019] EWCOP 27 and endorses his analysis of the evolution of the test in relation to consent to sexual relations [¶15].  Further, she agrees with Hayden J that an assessment of capacity to consent to sexual relations requires an application of the 'act specific test' applied in such a way as to promote P's opportunity to achieve capacity.

The decision on capacity is binary: the court has no ability to interfere on a best interests basis in the case of a person who lacks capacity to engage in sexual relations.  It is important to distinguish between the different concepts of having mental capacity to consent to sexual relations and exercising that capacity. That P may be held to be capacitous in relation to the decision to have sexual relations with others may not preclude a subsequent 'best interests' decision that P lacks capacity to decide whether a particular sexual partner with whom sexual activity is contemplated is a 'safe' partner. Education will play a critically important function. 

Decision
To argue that a full understanding of consent as recognised by the criminal law is an essential component of capacity to have sexual relations is to confuse the nature or character of a sexual act with its lawfulness.  Importing into the test for capacity and/or the information which informs that test a requirement for an understanding of parallel and continuing consent in a sexual partner imposes a test which is set too high.  To do so would impose on P a burden which a capacitous individual may not share and may well be unlikely to discharge. It would be an unacceptable inroad into the court's ultimate objective which is to empower autonomous decision-making wherever that is an achievable objective in any individual case.

In determining the fundamental capacity of an individual in relation to sexual relations, the information relevant to the decision for the purposes of section 3(1) of the MCA 2005 does not include information that, absent consent of a sexual partner, attempting sexual relations with another person is liable to breach the criminal law.

In respect of contact with others and the support JB may need, Roberts J endorsed the approach of Baker J in A Local Authority v TZ [2014] EWCOP 973 - with necessary modifications – that the focus should be on educating and empowering P to make these decisions and provisions restricting contact should be framed as interim measures until the point was reached where P had the skills to make them.  The fact that someone has capacity to consent to sexual relations does not relieve an LA of the obligation to put in place a robust care plan to protect that individual from future risk of harm.  For JB, it was not for the court now to determine whether or not his aspirations may be capable of realisation.

Summary by Victoria Roberts, barrister, Coram Chambers.  

Full case JB (Capacity: Consent To Sexual Relations And Contact With Others) [2019] EWCOP 39 via BAILII