In deciding whether someone has capacity to engage in sexual relations, what must that person be able to understand about a partner’s consent? The Supreme Court held that the partner must be able to consent and must actually consent before and throughout the activity. The assessment therefore had to address both people’s participation.
The issue
The appeal concerned JB’s capacity under the Mental Capacity Act 2005 to decide for himself about sexual relations. The central question was whether the information relevant to that decision includes the fact that the other person must be able to consent and must give and maintain consent throughout. If it does, and JB cannot understand, retain and use or weigh that information despite practicable help, he lacks capacity. Section 27(1)(b) then prevents anyone else from consenting to sexual relations on his behalf.
Law Teacher writing support
Writing a law essay?
We choose a writer who is an expert in your area of law and qualified to at least the academic level you select. Most of our writers hold a master’s degree or PhD, have teaching experience, or both.
Send us your question and, if you wish, any marking criteria. We’ll write an essay to your instructions.
Why the distinction mattered for JB
The evidence suggested that JB understood his own ability to agree to or decline sexual activity but had difficulty understanding that a partner could withdraw consent. That distinction mattered because the two lower courts framed the decision differently.
The decisions below
The local authority sought capacity declarations. By the hearing before Roberts J it was agreed that JB lacked capacity to conduct the proceedings and to decide about residence, care and support, contact, and internet and social media use. The remaining issue was framed as capacity to consent to sexual relations. Roberts J held that the relevant information did not include the other person’s consent or the criminal consequences of its absence, and declared under section 15 that JB had capacity to consent to sexual relations.
The Court of Appeal allowed the local authority’s appeal. Baker LJ, with whom the other members agreed, reformulated the decision as one to engage in sexual relations. On that formulation, the relevant information includes that any person with whom JB engages in sexual activity must be able to consent and must in fact consent throughout. The declaration was set aside. An interim declaration was made under section 48 that there was reason to believe JB lacked capacity to decide whether to engage in sexual relations, and the question of a final declaration was remitted.
The Supreme Court’s decision
Lord Stephens, with whom Lord Briggs, Lady Arden, Lord Burrows and Lady Rose agreed, dismissed the appeal. Under section 2(1) the court asks, first, whether the person is unable to make a decision for himself in relation to the matter and, second, whether that inability is because of an impairment of, or disturbance in the functioning of, the mind or brain. Capacity is decision-specific. The court must identify the matter and then the information relevant to it, including reasonably foreseeable consequences of deciding one way or another or of failing to decide. Those consequences are not limited to consequences for the person concerned.
Where, as here, the person wishes to initiate sexual relations and no particular partner is identified, the matter is properly formulated as engaging in sexual relations rather than merely consenting to relations proposed by someone else. Section 27(1)(b) identifies decisions that cannot be taken for a person who lacks capacity; it does not prescribe the only formulation of the matter under section 2. A wish to initiate sexual relations gives rise to a decision whether to fulfil that desire. The formulation of engaging in sexual relations covers both consenting to activity initiated by another and understanding, where the person initiates activity, that the other must be able to consent and must consent throughout.
That understanding is part of the relevant information. It reflects the mutually consensual nature of sexual relations and the reasonably foreseeable harm to the person and to others if it is absent, including possible criminal liability and serious consequences for mental health. Including it does not make the assessment person-specific in a case concerned with sexual relations with any woman, nor does it require the refined legal analysis used in criminal directions. It is not a higher or separate standard imposed only on disabled people: everyone engaging in sexual relations must consider whether the other person is consenting. The Mental Capacity Act is not confined solely to protecting the person concerned. As a public authority, the Court of Protection must also act compatibly with the Convention rights of others.
Arguments that the civil test created an impermissible difference from the criminal law were rejected. It is desirable, but not necessary, that the tests coincide, and the civil law may be more demanding. Differences already exist, including the standard of proof and the prospective nature of the capacity assessment. Any further comparison was better left to individual criminal cases; comments on particular offences were obiter. Permission was refused to argue incompatibility with article 8: the statutory scheme, including the duty to take all practicable steps to help the person decide, is compatible with article 8, and there were no findings capable of establishing a disproportionate interference on the facts. The argument under article 12 of the UN Convention on the Rights of Persons with Disabilities also failed, both because the consent requirement applies to everyone and because the court would not determine an alleged violation of an unincorporated treaty.
On the evidence available to the Supreme Court, JB’s inability to understand or use and weigh the relevant information was attributable to an impairment. The first-instance hearing had not fully examined that information. A final declaration therefore required reconsideration by the judge.
Verdict: The Supreme Court unanimously dismissed JB’s appeal. The interim declaration remained in place. The case returned to the judge to reconsider capacity using the test the Court had explained. The Supreme Court made no final declaration of incapacity.
