Mental capacity and consent to sexual relations – the perceived lacuna

What, then, are we to make of A Local Authority v JB ? Is it a legal landmark? Following a hearing in July judgment was handed down last month.

The decision of the Honourable Mrs Justice Roberts clarifies and develops the test for capacity to consent to sexual relations. Specifically what information is relevant for the purposes of assessing the issue of capacity to consent to sexual relations. Simply put, “does the “information relevant to the decision” within section 3(1) of the Mental Capacity Act include the fact that the other person engaged in sexual activity must be able to, and does in fact, from their words and conduct, consent to such activity?

The Court of Protection ruled that, for the purposes of determining the capacity of a vulnerable adult in relation to sexual relations, the information relevant to the capacity decision, did not include information that, absent consent of a sexual partner, attempting sexual relations with another person is likely to breach the criminal law.

The 11 principles that underpin the legal framework in this area of law have been set out at paragraph 15 as distilled in the case of London Borough of Tower Hamlets v NB and AU.

This case involved a 36-year-old man, JB, who has a complex diagnosis of autism combined with impaired cognition. He lives in a supported residential placement where he is subject to a comprehensive care plan which imposes significant limitations on his ability to function independently, including access to the local community, social media and the internet. Restrictions on JB’s ability to socialise freely with whomever he chooses have been imposed primarily to prevent him behaving in a sexually inappropriate manner towards women. The concern was that JB lacked insight or ability to communicate appropriately with women to whom he was attracted. And that his behaviour, if unrestrained, may result in his exposure to the criminal justice system and risk potentially vulnerable females.

Throughout the litigation, JB maintained his wish to find a girlfriend with whom he could develop and maintain a sexual relationship. He believed the restrictions represented an unfair and unwarranted interference with his basic rights to a private and family life under Article 8 European Court of Human Rights.

The local authority brought the matter before the court for determination as to what both parties described as a lacuna in the existing law in relation to the test for capacity to consent to sexual relations, namely what information is relevant to the decision.

Distilled to its essence, the issue was whether JB had capacity to consent to sexual relations and whether the test should be extended to include an understanding of the extent to which non-consensual sexual relations might be a violation of the criminal law.

The single joint expert had assessed JB as having capacity to consent to sexual relations – but the court ruled that to import into the test for capacity and/or the information which informs that test a requirement for an understanding of parallel and continuing consent in a sexual partner imposes a test which is set too high. This point is summarised neatly here:

“To require him to demonstrate as an aspect of his fundamental capacity in this context a full appreciation of both his own and a partner’s initial and ongoing consent throughout the course of that sexual activity would be to impose on him a burden which a capacitous individual may not share and may well be unlikely to discharge. It is true that knowledge of the absence of consent might expose either to the risk of criminal prosecution but in both cases each is entitled to make the same mistakes which all human being can, and do, make in the course of a lifetime.”

When considering the correct approach to dealing with issues of contact with others and the support JB may require, the court concluded that the relevant decision must focus on JB’s capacity in relation to the support he will obviously need in relation to his future relationship(s) with women.

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