Capacity to consent to sexual activity
The Supreme Court Judgment
The Supreme Court has recently given judgment in A Local Authority v JB (by his litigation friend, the Official Solicitor)  UKSC 52. The issue in question in this case concerns capacity to consent to sexual activity.
The judgment is considered a landmark ruling as it is the first time the Supreme Court has considered the concept of mental capacity under the Mental Capacity Act 2005 (‘MCA’), specifically what ‘relevant information’ a protected party (‘P’) should be able to understand, retain and use or weigh when assessing whether they have capacity to have sex.
JB is a 38-year-old man who has autistic spectrum disorder together with impaired cognition. JB wanted to have a girlfriend and be able to engage in sexual relations, however, he is considered to pose a moderate risk of sexual offending. JB has a comprehensive care package with a number of restrictions intended to prevent disinhibited sexual behaviour towards women. The local authority said that because of his past behaviour with women, JB cannot be left alone with women safely.
The local authority applied to the Court of Protection for declarations as to JB’s capacity in various matters including his capacity to consent to sexual relations. The question arose as to whether, in assessing JB’s capacity to consent to sexual relations, the judge should have regard to whether JB had capacity to understand that the other person involved must give consent, and did in fact give and maintain consent throughout the act. Experts stated that whilst JB understood how sex works, the risks of pregnancy and sexually transmitted diseases, he had little understanding of consent.
At first instance, Roberts J held (paragraph 87):
“For the purposes of 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”.
Roberts J concluded that consent was not relevant information for the purposes of determining if an individual had capacity to consent to sexual relations under the Act. It was held that to have capacity to consent to sex, a person does not need to understand that their sexual partner must be able to consent to sex. It was also held that the person does not need to understand that their sexual partner must consent before and throughout the sexual activity.
Roberts J therefore concluded that JB had capacity to consent to sex.
The Local Authority appealed to the Court of Appeal, and the Court of Appeal disagreed with Roberts J. Baker LJ noted at paragraph 92 of the Court of Appeal’s judgment that, while the case law on sexual relations had previously framed the decision in terms of capacity to consent to sexual relations, “the fundamental decision is whether to engage in sexual relations”. Having therefore changed the relevant matter as to whether JB had the capacity “to engage in” rather than “consent to” sexual relations, Baker LJ held at paragraph 100 that the information relevant to the decision to engage in sexual relations included “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 Court of Appeal had therefore found that in deciding whether a person had the capacity to engage in sexual relations, a Judge should have regard to whether that person can understand that the other person involved must be able to consent, and also give and maintain consent before and throughout the sexual activity.
The Judge therefore allowed the local authority’s appeal and set aside the declaration that JB had capacity to consent to sexual relations. Interim orders were made that JB lacks capacity to engage in sexual relations, and left the matter to the Court of Protection to determine whether, given the Court of Appeal’s decision, JB had the capacity to consent to sex. This was in anticipation that Roberts J would wish to secure further expert evidence.
JB (by his litigation friend, the Official Solicitor) appealed this decision to the Supreme Court. The issue was whether, for a person to have capacity to consent to sex, they need to understand that their sexual partner must have the capacity to consent to sex. The Supreme Court was also to decide whether a person needs to understand that their sexual partner must consent before and throughout the sexual activity. JB appealed to the Supreme Court on several grounds.
The Official Solicitor argued that it was wrong to recast the relevant matter as whether JB had capacity to “engage in” sexual relations because section 27(1)(b) of the Act, which sets out those decisions which cannot be made on behalf of a person, refers to “consenting to have sexual relations”. The Official Solicitor argued that this section should be read as controlling the scope of section 2(1) of the Act.
The Court rejected this interpretation of the statutory scheme and found that the wording of section 2(1) of the Act is broad and flexible.
The Official Solicitor argued that it was not relevant to look at whether a person understood that the other person must be able to consent and maintain consent throughout the act. The Official Solicitor argued that this interpretation of the Act inappropriately extended its purpose to protecting the general public, and moreover created an impermissibly “person-specific” test for capacity.
The Court rejected these submissions. First, the Court found that it was correct that the Court of Protection should have regard to the aim of protecting members of the public, as well as the person who may lack capacity. Second, the Court found that the test in section 2(1) was decision-specific, not person-specific.
The Official Solicitor argued that to have regard to whether a person had capacity to understand that the other person must be able to consent and must in fact consent before and throughout the sexual relations creates an impermissible difference between the civil and criminal law.
The Court found that no impermissible difference arose, and that there were strong policy justifications for any higher standard in the civil law test for consent.
The Court refused permission to raise a ground relating to compatibility with Article 8 ECHR (right to respect for private and family life), but nevertheless found the operation of the Act to be compatible.
The Official Solicitor argued that the Court of Appeal’s test for capacity to engage in sexual relations was inconsistent with article 12(2) of the United Nations Convention on the Rights of Persons with Disabilities, which provides for recognition that persons with disabilities enjoy legal capacity on an equal basis with others in all aspects of life.
The Court rejected this argument on the basis that there is no separate standard for persons with disabilities.
The Supreme Court therefore unanimously dismissed JB’s appeal. Lord Stephens gave the only judgment, with which the other four justices agreed. The Supreme Court remitted the matter to Roberts J for reconsideration in light of its judgment.
This case confirms that a person does have to understand that their partner needs to have the ability to consent to sexual relations in order to have the mental capacity to decide to engage in (rather than consent to) sexual relations. On the facts of this case, it was clear to the court that if JB were to engage in sexual relations there was a risk of serious consequences to his mental health and also consequences to the other person if the encounter ended in sexual assault.
The Supreme Court also confirmed that there was no separate test for persons with disabilities on the basis that the fact consent must be given before engaging in sexual relations should apply to everyone in society. The particular effects of JB’s autism and other cognitive difficulties impaired his mind to such an extent that he could not understand this information and could not use the information to weigh it as part of the decision-making process.