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A Local Authority v JB [2020] EWCA Civ 735

In order to have capacity to decide to have sexual relations with another person one must understand that the other person must at all times be consenting to sexual relations.

At first instance, the court was asked to consider whether to have capacity to consent to sexual relations a person must understand that the other person must consent to such relations. The matter related to JB, a 36-year-old man with a complex diagnosis, impaired cognition and lacking capacity to make decisions in a number of other areas. Expert evidence from a clinical psychologist informed the court that JB understood the mechanics of sexual acts, the risks of pregnancy and sexually transmitted disease but that he lacked an understanding of consent. The lower court considered the capacity test for sexual relations did not include a person's ability to understand whether their sexual partner consented to the activity. A declaration was made that JB had capacity to consent to sexual relations.

The local authority appealed against that declaration in November 2019.

The Court of Appeal considered the Mental Capacity Act 2005 ('MCA'), ss 1-3 and case law dating from 2006. The Court noted that the case law had almost exclusively considered the issue of capacity to consent to sexual relations and that the 'fundamental decision was whether to engage in sexual relations' [92]. The only reference to sexual relations in the MCA is in s 27, where 'consenting to sexual relations' is mentioned in a list of 'excluded decisions', but the Court of Appeal recorded that the list was not said to be comprehensive.

The Court summarised a list of information that may be relevant to a decision on a person's capacity to engage in sexual relations:

'(1)  the sexual nature and character of the act of sexual intercourse, including the mechanics of the act;

(2)  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;

(3)  the fact that P can say yes or no to having sexual relations and is able to decide whether to give or withhold consent;

(4)  that a reasonably foreseeable consequence of sexual intercourse between a man and woman is that the woman will become pregnant;

(5)  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 a condom.' [100]

The appeal was allowed and the declaration that JB had capacity to consent to sexual relations set aside. An interim declaration (under MCA, s 48) was made that there was reason to believe JB lacked capacity to consent to sexual relations. The matter was remitted to the lower court for reconsideration.

Summary by Dr Sara Hunton, barrister, Field Court Chambers.

Read the full judgment of A Local Authority v JB (Rev 1) [2020] EWCA Civ 735 on BAILII