Legal Updates

Capacity to Decide to Engage in Sexual Relations – A Local Authority v JB [2020] EWCA Civ 735 (English Court of Appeal)

[Note: the Supreme Court issued a judgment on appeal (A Local Authority v JB [2021] UKSC 52)]

Facts:

JB is a 36-year-old man with a diagnosis of autistic spectrum disorder combined with impaired cognition. He has lived in a supported living placement with a care plan which imposes restrictions on his ability to live independently. In particular, restrictions on contact and access to the community have been imposed on him principally because of his tendency to behave inappropriately towards women. Under JB’s care plan, he has 1:1 supervision when he is out in the community and, in particular, when in the presence of women.

JB has said that he has a strong desire to have a girlfriend and engage in sexual relations. He would like to have less support and to have time unaccompanied in the community so that he can go on dates and have more unsupervised access to the internet.

The local authority filed an application in the Court of Protection for declarations as to JB’s capacity in various matters and “a decision that it is in [JB]’s best interests to receive care and support in the community with such arrangements to include restrictions on his contact with women and that such restrictions and any deprivation of liberty arising as a result is authorised by the court as a relevant decision“.

In relation to sexual relations, a clinical psychologist reported that JB’s “understanding of consent is lacking“. Another clinical psychologist concluded that JB represented a moderate risk of sexual offending to women.

The order made following the judgment at first instance included a declaration that JB has capacity to consent to sexual relations. The local authority filed a notice of appeal against this declaration. The English Court of Appeal (“CA”) handed down judgment on the appeal and held as follows.

Judgment:

The issue and the principles

1. Sections 2 and 3 of the Mental Capacity Act 2005 (“MCA”) provide as follows:”2. People who lack capacity
   (1)    For the purposes of this Act, a person lacks capacity in relation to a matter if at the material time he is unable to make a decision for himself in relation to the matter because of an impairment of, or a disturbance in the functioning of, the mind or brain.
   …
   3.  Inability to make decisions
   (1)    For the purposes of section 2, a person is unable to make a decision for himself if he is unable—
   (a) to understand the information relevant to the decision,
   (b) to retain that information,
   (c) to use or weigh that information as part of the process of making the decision, or
   …” [emphasis added]
2. CA set out the issue that arises on this appeal as follows:”The issue arising on this appeal is whether a person, in order to have capacity to decide to have sexual relations with another person, needs to understand that the other person must at all times be consenting to sexual relations.… The question before the judge at first instance … was couched in different terms, namely whether a person, in order [to] have capacity to consent to such relations, must understand that the other person must consent. Those are the terms in which the issue of capacity and sexual relations have been discussed in all reported cases up to now.” [emphasis added]
3. It will be seen from the next section why CA couched the issue in terms of the capacity to decide to have sexual relations, as opposed to the capacity to consent to such relations.
4. CA noted that the issue arising on this appeal requires it to balance three fundamental principles, namely, (1) the principle of autonomy, (2) the principle that vulnerable people in society must be protected and (3) the principle that “[s]exual relations between two people can only take place with the full and ongoing consent of both parties”.

What capacity is in issue?

1. 1. CA held that the capacity in issue in the present case is JB’s capacity to decide to engage in sexual relations:”… The focus of sections 2 and 3 of the Act is on the capacity to make decisions. The “information relevant to the decision” depends first and foremost on the decision in question.
      
      The analysis of capacity with regard to sexual relations in the case law has hitherto been framed almost exclusively in terms of the capacity to consent to sexual relations. But as this case illustrates, giving consent to sexual relations is only part of the decision-making process. The fundamental decision is whether to engage in sexual relations …
      

… The word “consent” implies agreeing to sexual relations proposed by someone else. But in the present case, it is JB who wishes to initiate sexual relations with women. The capacity in issue in the present case is therefore JB’s capacity to decide to engage in sexual relations. In my judgment, this is how the question of capacity with regard to sexual relations should normally be assessed in most cases.” [emphasis added]

For the purpose of assessing if JB has capacity to decide to engage in sexual relations, does the “information relevant to the decision” under section 3(1) of the MCA include an understanding of the consensuality of sexual relations?

1. CA then considered whether, for the purpose of assessing if JB has capacity to decide to engage in sexual relations, the “information relevant to the decision” under section 3(1) of the MCA includes an understanding of the consensuality of sexual relations and held as follows:”…The capacity in issue in the present case is therefore JB’s capacity to decide to engage in sexual relations. In my judgment, this is how the question of capacity with regard to sexual relations should normally be assessed in most cases.When the “decision” is expressed in those terms, it becomes clear that the “information relevant to the decision” inevitably includes the fact that any person with whom P [Note: P refers to the individual who is the subject of the proceedings] engages in sexual activity must be able to consent to such activity and does in fact consent to it … 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.
   ….
   … I do not accept the argument that including an understanding of the consensuality of sexual relations as part of the information relevant to the decision about the capacity regarding sexual relations amounts to an unwarranted infringement of JB’s personal autonomy or of his rights … ” [emphasis added]
2. CA summarised as follows:”In summary, when considering whether, as a result of an impairment of, or disturbance in the functioning of, the mind or brain, a person is unable to understand, retain, or use or weigh information relevant to a decision whether to engage in sexual relations, the information relevant to the decision may include the following:(1) the sexual nature and character of the act of sexual intercourse, including the mechanics of the act;(2) 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;(3) the fact that P can say yes or no to having sexual relations and is able to decide whether to give or withhold consent;(4) that a reasonably foreseeable consequence of sexual intercourse between a man and woman is that the woman will become pregnant;

   (5) 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 the taking of precautions such as the use of a condom.” [emphasis added]

3. Lastly, CA held that the question whether the information relevant to the decision whether to engage in sexual relations must always include all of the matters identified in the paragraph immediately above does not arise on the present appeal.

Conclusion:

As mentioned previously, the declaration against which the local authority filed a notice of appeal is a declaration that JB has capacity to consent to sexual relations.

Upon appeal, CA clarified that the capacity in issue is JB’s capacity to decide to engage in sexual relations, rather than his capacity to consent to sexual relations. CA thus allowed the appeal, remitted the matter to the judge to reconsider whether JB has the capacity to decide whether to engage in sexual relations, and made an interim declaration that there is reason to believe that JB lacks that capacity.

Under sections 2 and 3 of the MCA, JB lacks capacity to decide to engage in sexual relations if at the material time, because of an impairment of, or a disturbance in the functioning of, the mind or brain, JB is unable to understand the “information relevant to the decision”, to retain that information or to use or weigh that information as part of the process of making the decision.

The judge will have to reconsider whether JB has capacity to decide to engage in sexual relations in view of CA’s decision above that the fact that any person with whom JB engages in sexual activity must be able to consent to such activity and does in fact consent to it is part of the “information relevant to the decision”. The finding to be made by the judge on JB’s capacity upon reconsideration is likely to have implications on the care and support to be received by JB and any restriction to be imposed on him, such as restrictions on his contact with women.

It remains to be seen whether there will be an appeal to the Supreme Court of the United Kingdom.