QS: Supreme Court Decision on Capacity and Consent to Sex

Capacity to Consent to Sex: Analysis of the Decision in A Local Authority v JB [2021] UKSC 52

Introduction

On Wednesday 4 May 2022, Victoria Butler-Cole KC and Dr Jaime Lindsey gave a talk at Middle Temple in discussion of the issues that arise under the Mental Capacity Act 2005 (MCA) pertaining to capacity to consent to sexual relations. This issue has a long history of complex and unclear jurisprudence in the Court of Protection (CoP), the court that deals with MCA disputes. In A Local Authority v JB [2021] UKSC 52, the case at the heart of the discussion, the Supreme Court noted: ‘the somewhat confusing development of the case law in this field (para 24) and the misleading dicta in previous reported cases (para 106)’ (para 80). The JB case clarifies this area to a large extent, albeit some areas for further consideration remain, as set out in the conclusion of this article. 

Disability and Sexual Capacity

Mental capacity law predominantly impacts disabled adults. Disability is not a requirement of the MCA, which, under section 2, requires an impairment or disturbance of the functioning of the mind or brain, but in practice most of the people impacted by this area of law do have some form of disability. This means that, in the context of sexual capacity, it is being considered whether restrictions should be placed on an adult to engage in a sexual relationship with another adult essentially justified by their impaired mental functioning. This is potentially highly intrusive in an adult’s life and can lead to surveillance and restriction if he or she is found to lack the mental capacity to engage in sexual relations. 

This has been a challenging area for many academics, lawyers, and activists to get to grips with and to get the balance right between protecting disabled people from abuse, while also enabling them to be empowered to make their own decisions, even if seemingly risky. The JB decision clarifies the law, but also highlights several issues that arise when considering the appropriate balance between sexual freedom and protection from sexual exploitation. 

Legal Background

Section 2 MCA sets out that capacity is impaired where it is a result of ‘an impairment of, or a disturbance in the functioning of, the mind or brain’. The MCA also has a functional component to the test, which, under section 3, requires the person to understand, retain, use, and weigh information relevant to the decision, including the reasonably foreseeable consequences, and to communicate their decision. The test in relation to sexual capacity is act specific, meaning that you look at a person’s understanding in general rather than in relation to a specific person. 

Under the MCA, where a person is found to lack the capacity to make a particular decision, that decision can be made on their behalf where it is in their best interests to do so. However, in the case of capacity to consent to sex, the CoP cannot substitute a decision on the individual’s behalf because of the operation of section 27 MCA, which excludes consenting to sexual relationships from the general best interests decision-making framework of the MCA. 

Instead, where an individual is assessed as lacking capacity to consent to sexual relations, they are prevented from having sex. Not only does this mean that they cannot engage in sexual acts, but it generally results in them being prevented from engaging in intimate relationships. So, a finding of incapacity in this regard catalyses a range of potentially restrictive interventions aimed at preventing that person from engaging in such relations.

The Decision 

A Local Authority v JB concerned a mental capacity declaration sought in relation to a 38-year-old man who was perceived to be a risk to others and had significant limitations placed on his independence due in part to his inappropriate sexual behaviour towards women. Since May 2014, he had been living in a supported residential placement which he shared with two others. He had several restrictions on his freedom and independence, including restrictions on use of social media and on contact with others. JB had epilepsy, which resulted in significant brain damage and ‘cognitive behavioural regression’, and he had an autism spectrum disorder, as well as several physical disabilities (para 14). 

In terms of JB’s understanding of issues relating to sexual consent, JB did understand that he could withhold or give his own consent. He also had a full understanding of the mechanics of sexual relations and understood that the woman may become pregnant because of sex, and that it can result in sexually transmitted diseases. However, it was less clear whether JB understood that the other person must be able to consent and maintain consent throughout.

By way of background, concerns arose given JB’s sexual behaviour. The expert evidence provides an insight into the precise difficulties raised by the case (paras 34-35): 

34. When asked by Dr Thrift about the other person withdrawing consent during a sexual act, JB said:

That’s a tricky one … If the person gives consent, then she’s already given consent and you have to go through with it to the end. Once you’re halfway through she can’t say ‘I don’t give you consent’ ‘cos you’re already doing what you need to do. She cannot change her mind if you are already doing it. Cos it’s her fault in the first place for saying yes. She can’t say yes and then say no. Already said yes and you’ve got your chance.

This case clearly raises several difficulties in relation to the appropriate balance between protecting potentially vulnerable victims of sexual abuse against the rights of other individuals to live free and autonomous lives. However, the Supreme Court upheld the Court of Appeal’s decision, in summary holding that:

• the relevant decision is whether a person has capacity to engage in sexual activity, rather than capacity to consent to sexual activity 
• understanding consent (including the other person’s consent) falls within part of the information relevant to the decision to engage in sexual activity
• there was no impermissible difference between the criminal and civil law on this issue and that there were policy reasons for imposing a higher standard for capacity to engage in sexual activity through the civil law. 

The information relevant to a decision to engage in sex, as it stands today, includes five elements (para 84):

… 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.

The Supreme Court affirmed that consent is a feature of the test for capacity to engage in sexual relations (points 2 and 3 in the above test), and this can include a requirement that the person must understand the other person’s consent too. For JB, this meant that the decision was remitted to the judge for a reconsideration of the issues on the facts considering the judgment, but it may also have implications for others subject to mental capacity law’s jurisdiction in this domain of decision-making. 

Conclusion

In some ways, the decision in JB could be seen as raising the threshold for capacity as two additional features of the test have been affirmed by the highest court in the land. However, the decision also appears more honest by including consent as a central part of what needs to be understood. Furthermore, the decision, in many ways, clarifies a long and complex line of case law which was previously disjointed and, in many ways, contradictory. Conversely, given the lengthy history to capacity to consent to sex cases in the CoP, it seems unlikely that JB has settled the issues in their entirety. Questions remain unresolved in a number of areas, including the appropriate overlap between civil and criminal law, whether capacity to engage in sex will remain act specific and whether the test will work in ‘real life circumstances’.

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