People need to understand that their sexual partners must be able to give and maintain consent in order to have capacity to engage in sex, the Supreme Court has found.
In its first major ruling on assessing capacity, the court rejected an appeal brought by a disabled man, JB, against a 2020 Court of Appeal judgment that revised previous case law on capacity and sex.
The Court of Appeal had overturned a Court of Protection judgment which had, drawing on previous case law, concluded that JB had capacity to consent to sex, and that understanding the need for a sexual partner to give and maintain consent was not “relevant information” for the purposes of assessing capacity.
In a unanimous ruling issued this week, the Supreme Court backed the Court of Appeal’s judgment that this was relevant information and the appeal court’s recasting of the issue as being whether the person had capacity to “engage in sexual relations” rather than consent to it.
On the basis of the available information, this meant that JB lacked capacity, on the grounds that he did not understand the need for the other person to give and maintain consent because of a mental impairment, his autism spectrum disorder. However, Lord Stephens, giving the lead judgment, agreed with the Court of Appeal that, because this information was not fully considered or analysed during previous hearings, it was not appropriate to make a final declaration on JB’s capacity.
Instead, he said, the Court of Protection should reconsider it in the light of the Supreme Court’s judgment.
Relevant information for capacity to engage in sex
The Supreme Court, following the Court of Appeal, held that the relevant information that a person must be able to understand, retain and use or weigh, to have capacity to engage in sexual relations may include:
- The sexual nature and character of the act of sexual intercourse, including the mechanics of the act.
- The fact that the other person must be able 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.
- 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 taking precautions such as the use of a condom.
JB, who is now 38, lives in a supported living placement but with a care plan that imposes restrictions on his access to the local community, contact with third parties and access to social media and the internet. It also involves 1:1 supervision when out in the
community and, in particular, when in the presence of women.
He has a strong desire to have a girlfriend and have sex. The psychology reports before the Court of Appeal showed how he became fixated on particular women, contacting them via social media or text messages, and making advances towards them that were sexualised or otherwise inappropriate. They concluded that JB represented a moderate risk of sexual offending to women.
JB understood that he could withhold or give his own consent to sex, the mechanics of sexual relations, that the woman may become pregnant, sexually transmitted diseases and the use of different forms of contraception to avoid pregnancy and to
protect against disease.
But it was evident that, as a result of his autism spectrum disorder, he could not understand that his sexual partner must be able to give and maintain consent.
In 2019, JB’s local authority sought a declaration on his capacity to consent to sex, arguing that this should include his ability to understand that his partner should be able to give and maintain consent, otherwise he may commit a sexual offence. However, the Court of Protection, drawing on previous case law, found that this was not relevant information for the decision.
The council then appealed, with the Court of Appeal then overturning the Court of Protection ruling and recasting the issue as whether JB had capacity to “engage in sexual relations”.
Giving the lead judgment in the Court of Appeal, Lord Justice Baker said: “A person who does not understand that sexual relations must only take place when, and only for as long as, the other person is consenting is unable to understand a fundamental part of the information relevant to the decision whether or not to engage in such relations.”
Grounds of appeal
JB appealed to the Supreme Court on five grounds, each of which the court rejected.
The first was that the Court of Appeal was wrong to recast the matter as being about engaging in rather than consenting to sexual relations.
Counsel for JB argued that, because section 27(1) of the Mental Capacity Act 2005 lists “consenting to have sexual relations” as a decision that can never be made on a person’s behalf, then the act formulates the decision as being about consenting to, rather than engaging in, sexual relations.
However, the Supreme Court found that section 27 does not govern or define the matter for which a person may be found to lack capacity under section 2 of the MCA. Lord Stephens said that section 2 was “open and flexible” as to what the matter that a person may be unable to make a decision in relation to might be.
The second ground was that the Court of Appeal was wrong to include the need for the ongoing consent of the other person as “relevant information” that the person should have to understand, retain and use or weigh to be able to have capacity under section 3 of the MCA.
JB’s counsel said this inappropriately extended the purpose of the MCA to the protection of the public, rather than that of the person concerned (P), with the former being the business of the criminal law.
However, Lord Stephens pointed out that section 3(4) specified that the relevant information included that about the “reasonably foreseeable consequences” of deciding one way or the other or failing to decide, which were not confined to P, but also to others and the general public.
Distinction between civil and criminal law permissible
The third ground brought by JB was that the Court of Appeal ruling created an impermissible difference between the criminal and civil law in relation to capacity. Specifically, if P was the alleged victim of an offence under sections 30-33 of the Sexual Offences Act 2003 – which concern cases where a person with a mental disorder lacks capacity to consent to sex – he or she would not need to understand about the other person’s consent.
However, Lord Stephens said that this was not an impermissible difference because there were strong policy reasons for there to be a higher standard for capacity in civil law cases because of the Court of Protection’s responsibility to protect P and others.
The Supreme Court also refused permission for JB’s counsel to bring a claim – not raised on behalf of JB previously – that the Court of Appeal’s test was inconsistent with the right to private and family life under Article 8 of the European Convention on Human Rights, saying there was no merit in it.
Finally, it rejected the fifth ground, which was that the Court of Appeal’s test was inconsistent with the right of disabled people to enjoy legal capacity on an equal basis as others, under Article 12(2) of the United Nations Convention on the Rights of Persons with Disabilities.
JB’s counsel claimed that the test created a separate standard for disabled people for assessing consent to sexual relations to non-disabled people. However, Lord Stephens said it was a test that applied to everyone in society.