The Supreme Court has given its first ever ruling on decision-making capacity of the person but potentially of others to have sexual relations. It follows the Official Solicitor’s appeal against the decision of the Court of Appeal in the case of JB, concerning capacity to consent to sexual relations.
The issue before the Supreme Court was whether to have capacity to decide to have sexual relations with another person, does require a person to understand that the other person must have the capacity to consent to the sexual activity and must consent before and during the sexual activity.
The Supreme Court dismissed the appeal, with Lord Stephens giving the sole judgment. He explains that:
“The evaluation of JB’s capacity to make a decision for himself is in relation to “the matter” of his “engaging in” sexual relations. Information relevant to that decision includes the fact that the other person must have the ability to consent to the sexual activity and must in fact consent before and throughout the sexual activity. Under section 3(1)(a) MCA JB should be able to understand that information and under section 3(1)(c) MCA JB should be able to use or to weigh it as part of the decision-making process.”
You can read the judgment in A Local Authority v JB here.
Barristers from 39 Chambers recently delivered a webinar on the Supreme Court’s decision and its implications. You can watch a recording of the webinar and read the webinar materials here.
The Supreme Court’s interpretation of the Mental Capacity Act not being limited to the protection of P is wider than many had anticipated, as the judgment considers implications for those other than P during sexual relations. It will be interesting to see how this will be taken forward.
We have also seen an increase in requests for capacity assessments and care plans for engaging in sexual relations in section 21 proceedings over the last few months. Such assessments should be done when required and not just because this is a current topical subject.