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Supreme Court to give judgment in case involving capacity to consent to sexual relations

The Supreme Court case will hand down judgment on 24 November 2021 in A Local Authority (Respondent) v JB (by his Litigation Friend, the Official Solicitor).

The Supreme Court will determine whether to have capacity to decide to have sexual relations with another person, a person needs to understand 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.

In this case the appellant, JB, is a 37 year-old single man with a complex diagnosis of autistic spectrum disorder combined with impaired cognition. JB has expressed a strong desire to have a girlfriend and engage in sexual relations. However, his previous behaviour towards women has led the respondent local authority to conclude that he cannot safely have unsupervised contact with them.

The local authority filed an application in the Court of Protection seeking declarations as to JB's capacity in various areas, including his capacity to consent to sexual relations. The expert evidence was that JB understands that mechanics of sexual acts and the risks of pregnancy and sexually transmitted disease, but his "understanding of consent is lacking".

In the Court of Protection, the judge held that it was not necessary for a person to understand the need for their sexual partner's consent and declared that JB has capacity to consent to sexual relations. The Court of Appeal disagreed. It held that, to have capacity to engage in sexual relations, a person needs to understand that their sexual partner must have the capacity to consent to the sexual activity and must in fact consent before and during the sexual activity. JB appeals to the Supreme Court.

For the judgment in the Court of Appeal, click here.

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