In this recent decision the Court of Appeal has arguably reset the last 15 years of jurisprudence surrounding P’s capacity in regards of sexual relations. The previous case law focused on P’s ability to consent to such relations, and whether P understood the information relevant to that decision. Traditionally the ‘information relevant’ analysis took a protectionist stance, considering whether P understood the risks or pregnancy or sexual disease etc. This decision however makes it clear that information relevant to the decision, also includes the ability to understand the importance of a partner consenting to such relations.

Background

JB lives in a supported living placement, with various limitations placed upon his independence, particularly in relation to his interactions with women. JB was clear that he wished to have a partner and to engage in sexual relations. Expert evidence identified that he understood the mechanisms of sex, but not the importance of the intentions of others, nor the concept of the need for a partner to consent.

First Instance

At First Instance, Roberts, J confirmed that the purpose of the Mental Capacity Act 2005 (“the MCA 2005”) is to enable P to have the fullest possible experience of life. A person must be assumed to have capacity unless it is established that they lack it. Section 3(1) of the MCA 2005 provides that a person is unable to make a decision for themselves if they are unable to:

• Understand the information relevant to the decision;
• Retain that information;
• Use or weigh that information as part of the process of making the decision; and,
• Communicate their decision.

Requiring P (JB in this instance) to have a full understanding of consent as an essential component of capacity, would be setting the bar too high, and would deprive him of a fundamental human right to participate in intimate relations. The court noted it would place burdens upon him, that were not placed on others in society. As such the court held that the test for capacity to sexual relations remained unchanged and that an appreciation of the need of the other party to consent throughout, was not part of the test set out in s. 3(1)(a) of the MCA 2005. A declaration was granted that JB has the capacity to consent to sexual relations.

The Court of Appeal

Baker LJ provided the sole judgment in the Court of Appeal, which overturned the First Instance decision. In a change of direction, the court held that the question is not simply whether P has the capacity to consent to sexual relations; but whether P has the capacity to engage in such relations and to assess whether there was ongoing consent from their partner.

The Court of Appeal held that the proper approach to capacity and sexual relations requires the balancing of three principles, namely:

• Autonomy: which is at the very centre of the MCA 2005;
• The protection of vulnerable people in society; and,
• The wider context: Whilst the Court of Protection is fundamentally aimed at protecting the interest of P, the court was clear that the Mental Capacity Act 2005 and the Court of Protection are part of a wider system of law and justice.  Within this system sexual relations can only take place with the full and ongoing consent of both parties.

Baker LJ held (paragraph 100) that, the “information relevant to the decision” (under section 3(1)(a)) may include:

1. 1. the sexual nature and character of sexual intercourse;
   2. that the other person must have the capacity to consent and must consent throughout;
   3. that the person with the mental impairment could decide whether to give or withhold consent;
   4. that pregnancy was a reasonable foreseeable consequence; and
   5. that health risks existed (for example, the risk of contracting a sexually transmitted infection).

As such, when considering “information relevant to the decision” as per s.3(1)(a) of the MCA 2005, it inevitably must include the fact that any partner must consent. A person who did not understand that sexual relations must only take place when and for so long as the other person was consenting, was unable to understand a fundamental part of the “information relevant to making the decision”.

Baker LJ, emphasised that the analysis in his judgment was not limited solely to JB’s case, but that “in my judgment, this is how the question of capacity with regard to sexual relations should normally be assessed in most cases…” (paragraph 92).

COMMENT

The fundamental shift in the way we approach such cases is likely to have wide reaching consequences. Further judicial comment is likely to be sought, in order to provide guidance of how to implement the new framework in practice. It may also see a temporary rise in cases, with Local Authorities seeking guidance in relation to their care planning in this area.

This article A Local Authority v JB [2020] EWCA Civ 735 was written by Victoria Ellis, for further information on her practice or any member of our Court of Protection Team please contact our clerking team on 020 7353 071 or via email: clerks@pumpcourtchambers.com. To view the Judgment in full please click here.