Lord Justice Baker  has handed down judgment in the appeal against  judgment of Mrs Justice Roberts in A Local Authority v JB.

The issue was “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.”  

As Baker LJ explained at the start of the judgment this requires a balance between three imperatives:

-The principle of autonomy, at the heart of the Mental Capacity Act 2005 (“MCA”) and underpinning the United Nations Convention on the Rights of Persons with Disabilities (“UNCRPD”);

-The need to protect the vulnerable;

-The obligation on the Court of Protection to adhere to general principles of law and to meet its obligations under section 6 Human Rights Act 1998 (“HRA”).

JB had epilepsy and Asperger’s syndrome and was believed to lack capacity to make a range of decisions.  He had a comprehensive care package with a number of restrictions intended to prevent disinhibited sexual behaviour towards women and he had been considered to pose a moderate risk of sexual offending.  The local authority applied to the Court of Protection for declarations as to his capacity in various matters including sexual relations.

Roberts J held that 

"For the purposes of determining the fundamental capacity of an individual in relation to sexual relations, the information relevant to the decision for the purposes of section 3(1) of the MCA 2005 does not include information that, absent consent of a sexual partner, attempting sexual relations with another person is liable to breach the criminal law".

On this basis she concluded that JB had capacity to consent to sexual relations.  

The local authority appealed.

Baker LJ reviewed comprehensively the caselaw in this field (see paragraphs 24- 75), noting at paragraph 26 that in the earliest case cited (X City Council v MB) Munby J had identified two questions:

"How then is one to assess whether someone has the capacity to consent to sexual relations, the ability to choose whether or not to engage in sexual activity?"

Many of the subsequent cases- including the Court of Appeal in IM v LM-  framed the decision in terms of capacity to consent to sexual relations; however Baker LJ observed at paragraph 53 that

 “I would not regard the requirement that, in order to have capacity to engage in sexual relations, P must have the ability to understand that such relations must be mutually consensual to be inconsistent with the analysis in that case.”

Baker LJ noted at paragraph 92:

“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.”

He continued (paragraph 93)

"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."

Having formulated the question in those terms he held that It becomes clear that the 

"information relevant to the decision" inevitably includes the fact that any person with whom P engages in sexual activity must be able to consent to such activity and does in fact consent to it. Sexual relations between human beings are mutually consensual. It is one of the many features that makes us unique. 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."

Baker LJ rejected the argument that the effect of including an understanding of the other person’s consent would result in a “person-specific” test.

In what is likely to be a far-reaching conclusion he said at paragraph 98:

"As I said at the start of this judgment, striking a balance between the principle that vulnerable people in society must be protected and the principle of autonomy is often the most important aspect of decision-making in the Court of Protection. But 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. Insofar as it is a restriction of his autonomy and his rights, it cannot be described as discriminatory because it is a restriction which applies to everybody, regardless of capacity. As social beings, we all accept restrictions on our autonomy that are necessary for the protection of others. No man is an island. This principle is well recognised in the European Convention on Human Rights. For example, the rights in Article 8 are not absolute and must be balanced against other interests, including the rights of others. Although the Court of Protection's principal responsibility is towards P, it is part of the wider system of justice which exists to protect society as a whole. "

He concluded at paragraph 100 (emphasis added)

“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.”

He declined to comment on the vexed question of whether the relevant information must always include all of the above matters because it did not arise in this case.The judge therefore allowed the appeal and set aside the declaration that JB has capacity to consent to sexual relations.  He made an interim declaration JB lacked capacity, and remitted the matter to Roberts J, anticipating she would wish to secure further expert evidence.

Comment

This is a clear, powerfully worded judgment which will have far-reaching consequences.   The judge’s comments about the Court of Protection’s obligations to the wider justice system are of general application and will have resonance in cases where P is considered to pose a risk to others, whether the risk is sexual or otherwise, and whether the court is considering capacity or best interests.  

Baker LJ accepted the parallel with the judgment of Cobb J in Re B that the potential for illegality was relevant when assessing capacity to use the internet and social media.   He described the current judgment as “moving on from previous caselaw”, but not inconsistent with it.

The judgment is likely to result in an increase of applications to the Court of Protection which concern those with a forensic history, possibly those who are leaving secure mental health services.   

It may raise important questions about the cohort of restricted patients who at present are considered to have capacity to consent to their care arrangements.     Such patients cannot lawfully be deprived of their liberty by virtue of a conditional discharge under the MHA following the judgment in MM.   If a patient in this category was found, following the JB judgment, not to have capacity to engage in sexual relations,  would this be consistent with having capacity to consent to restrictions directed at sexual risk?

The practical impact of the judgment on those who may now be assessed as lacking capacity to engage in sexual relations will emerge with time.  Are they more likely to be given all possible support to attain capacity, or will it simply be easier to make a best interests decision to impose restrictions?

Given Baker LJ’s decision not to comment obiter on the question of “tailoring” information to P’s circumstances, this will remain a live issue for now until it is the subject of an appeal to the higher courts.  He did observe however that his own judgment in Re TZ had adopted that approach.  In that case, he observed that an understanding of the risk of pregnancy would only be relevant in a heterosexual relationship.   

The approach therefore has some authority behind it.It remains to be seen whether this judgment is the final word, or whether there is an appeal to the Supreme Court.