Capacity to Engage in Sexual Relations: A forthcoming Supreme Court hearing

By Charlotte Roscoe and Celia Kitzinger, 9th July 2021

Editorial Note: This blog post concerns a case in the Supreme Court. The Open Justice Court of Protection Project normally covers only cases in the Court of Protection. We have made an exception in this case (as we have before, for cases in the Court of Appeal, e.g. here) because it originated in the Court of Protection and will impact upon future judgments in the Court of Protection.

The image is taken from the website for the Supreme Court hearing listed for 15^th July 2021, before Lord Briggs, Lady Arden, Lord Burrows, Lord Stephens and Lady Rose. (There are biographies of the judges here.)

The person at the centre of the case is a man in his 30s, JB, who lives with autism and impaired cognition.  He has a history of “behaving in a sexually inappropriate manner towards women” and he “lacks the insight or ability to communicate appropriately with women to whom he is attracted”.  In particular, there is a question about his capacity to understand that a sexual partner must consent to a sexual act, and continue to consent throughout.

The question before the court is whether an inability to understand that a sexual partner must give consent means that a person lacks capacity to engage in sexual relations.  

In the Court of Protection, on 17^th September 2019,  Mrs Justice Roberts ruled that JB does have capacity to consent to sexual relations, and did not consider that understanding the need for consent from the other person was a necessary part of capacity.

On 11^th June 2020, the Court of Appeal overturned that judgment.

The case is now before the Supreme Court.  

This blog post is intended as a briefing note for members of the public interested in learning more about this case and perhaps observing it for themselves.  

The Supreme Court

The Supreme Court is the final court of appeal in the UK for civil cases (and for criminal cases from England, Wales and Northern Ireland). 

Permission can be given to appeal against a decision in lower courts, including the Court of Protection (normally after a hearing in the Court of Appeal) if there is “a real prospect of success” in arguing that the earlier decision was “incorrect, or suffered from a serious procedural error or irregularity” or “some other compelling reason why the appeal should be heard” (Civil Procedure Rules 1998). 

The home of the Supreme Court is Middlesex Guildhall, a Grade II listed building in an art nouveau Gothic style, on the South West corner of Parliament Square in Westminster, directly opposite the Houses of Parliament.  It was controversially converted to house the Supreme Court for its relocation on 1^st October 2009 – “a defining moment in the constitutional history of the United Kingdom with the separation of judicial power from its historic home in the nation’s legislature, the Houses of Parliament, and its transfer to the Supreme Court’s own building”.  There is lots of information about the history and role of the Supreme Court on its website. 

Currently, the building remains closed to the public due to the pandemic.  Parties to this case will be admitted to the physical courtroom where the hearing will take place. It will be live-streamed and available as a recording to watch afterwards  (as are many hearings in the Supreme Court).   To observe it you will need to go to the “Watch Supreme Court Live” page on the Supreme Courts website.  The hearing is listed for a full day – probably starting at 10am or 10.30am and running until 4.30pm (with a lunch break 1-2pm).

Background

As a consequence of his autism and impaired cognition and related problems, JB has lived in a supported living placement for the last 7 years. He has a comprehensive care package in place which restricts his ability to live independently. Under his care plan, he is supported 1:1 in the community, particularly when in the company of women, and has further restrictions on his contact with others and his access to social media and the internet. These restrictions have been imposed predominantly due to his tendency to behave inappropriately towards women. 

JB’s main desire for many years has been to have a girlfriend with whom he can develop a relationship and engage in sexual relations. In order to achieve this aspiration, he wishes to have time in the community without his 1:1 support, to have freedom to go on dates and also to have unsupervised access to the internet. However, because of his behaviour, which has reportedly included JB becoming fixated on particular women, contacting them via messages and making inappropriate and sexualised advances, JB has been prohibited from taking part in this range of activities. It should be noted that JB has not been convicted of any criminal offences, although an allegation of assault was made but not pursued by the police.  There is, however, a concern that his behaviours may result in a criminal conviction if left unrestricted.

One clinical psychologist reported that JB was at moderate risk of sexual offending by “sexually touching … without consent”. She said that “in terms of vulnerable women who do not have the capacity to consent to sexual relations, there is a risk of [JB] not recognising or respecting this fact, resulting in the potential for rape to occur.”  Another  clinical psychologist (quoted in the Court of Appeal judgment at para. 14 here), said that JB understands the mechanics of sexual acts and the risks of pregnancy and sexually-transmitted disease, but his “understanding of consent is lacking“. When asked, JB defined consent as “one party allowing the other party to have sex without the other party complaining“. The judgment reports what JB said when asked about withdrawing consent:

The psychologist concluded “there was a high risk that [JB] would commit a sexual assault in pursuit of a sexual relationship” (para 15.).

Capacity to engage in sex

Capacity to consent to sex is something the Court of Protection has ruled on many times before.  The Open Justice Court of Protection Project has blogged about some previous cases.  These include one concerning a woman with dementia who formed a romantic relationship with a man in the care home she resided in. She was found by a court-appointed expert first not to have capacity to consent to or engage in sexual relations (here) but then subsequently, by a new expert, to have that capacity (here).  

Under s.3 Mental Capacity Act 2005 a person lacks capacity if, because of an impairment or disorder in the functioning of their mind or brain, they are unable to (a) 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 (d) to communicatetheir decision. 

In the case of B v A Local Authority [2019],  Lord Justice Cobb confirmed  (just 3 months before Mrs Justice Roberts heard the JB case in the Court of Protection), that the relevant information in relation to capacity to consent to sexual relations includes:

Court of Protection

When the case of JB came before Tier 3 judge, Mrs Justice Roberts, in the Court of Protection, she was asked to consider a single issue: ‘does the information relevant to the decision [to consent to sexual activity] include the fact that the other person engaged in sexual activity must be able to, and does, consent to such activity?’ 

Mr Vikram Sachdeva, on behalf of the local authority, argued that  information relevant to the capacity to consent  to sex should include an understanding of the  fact that the other party must and does consent to the sexual act, in part because, for those with learning disabilities like JB, understanding this is key to protecting them from committing a criminal offence.

Mr Parishil Patel, on behalf of the Official Solicitor acting for JB, argued that the local authority’s attempt to expand the test for capacity to consent to sexual activity is an attempt to incorporate a requirement that those who pose a risk of sexual offending must have a sufficient understanding of criminal law. Mr Patel stated that the Mental Capacity Act 2005 should not be used to avoid the risk of criminal offending. Mr Patel further argued that adding this element of consent into the “relevant information” raises the bar from a deliberately low level which has been set in order to avoid discrimination against vulnerable adults, who should be entitled to exercise one of the most basic human functions.

Mrs Justice Roberts concluded that if issues regarding consent were difficult for capacitous people to grasp, then great care should be taken before imposing a requirement to understand the concept of consent on those who are potentially incapacitous. She stated that to include  in the “relevant information” an understanding of consent sets the bar too high.  The judge did not accept it as appropriate to potentially deprive those without capacity of a fundamental and basic human right merely because raising the bar for capacity might provide protection for P or for a victim of non-consensual sex. 

She said; 

“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 beings can, and do, make in the course of a lifetime.” (A Local Authority v JB [2019] EWCOP 39)

Mrs Justice Roberts further concluded that it is not part of the function of the Court of Protection to seek to exclude P from future harm or exposure to the criminal law. 

The judge 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 (para. 87, A Local Authority v JB [2019] EWCOP 39)

The case proceeded to a subsequent hearing at which Mrs Justice Roberts made final declarations as to JB’s capacity in the other areas identified in the proceedings and declarations that his care plan, which included provision for close supervision in the community and education to improve his social awareness to mitigate risks posed to others, was in his best interests. 

Court of Appeal

The Court of Appeal (Lord Justice Baker, Sir Andrew McFarlane and Lord Justice Singh) disagreed with Mrs Justice Roberts’ ruling in the Court of Protection.  The judgment is here: A Local Authority v JB [2020] EWCA Civ 735

Lord Justice Baker began his judgment by stating that in order to consider the question of capacity to decide to engage in  sexual relations they had to balance three fundamental principles: 

1. The principle of autonomy. 
2. All vulnerable people in society must be protected.
3. The Mental Capacity Act and the Court of Protection do not exist in a vacuum; it is concerned first and foremost with the individual however it must adhere to general principles of law. 

Mr Vikram Sachdeva, on behalf of the local authority, submitted that the relevant information regarding the nature and character of the sexual act includes the fundamental characteristic that it is a mutual act which requires consent of both parties. Mr Sachdeva submitted that a fundamental aspect of sex is consent and that including this in information relevant to the decision is not discriminatory against people who lack capacity because whether the other person is consenting is a strong and determinative factor in a decision made by a person with capacity. Thirdly, the local authority argued that a person who lacks capacity to understand that consent is required should be protected from being placed in a situation where they could inadvertently commit a serious sexual offence. It was further submitted that including the other person’s consent as relevant information does not raise the bar too high and it should not be seen as a more difficult concept than, for example, the potential to fall pregnant. 

Mr Patel and Mr Ian Brownhill on behalf of JB submitted that capacity to consent to sexual relations should be assessed on a general and non-specific basis; information relevant to the decision should be kept at a relatively low level reflecting the simple and fundamental nature of the act.  Decision-making in consenting to sexual relations is, they said,  largely visceral rather than cerebral owing more to instinct and emotion than analysis; issues of capacity are different in criminal and civil law and that there is tension between the potential for exploitation of the vulnerable and P’s right to a sexual life. Mr Patel further argued that consideration of whether someone is consenting would turn the test from being act-specific to person-specific and it would add complexity to a test which needs to be kept simple. He further submitted that it would run contrary to the focus of the Mental Capacity Act 2005, which is to empower P and encourage autonomous decision-making. 

Lord Justice Baker summarised that the capacity in issue in this case was in relation to JB’s capacity to decide to engagein sexual relations rather than capacity to consent. 

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. (para 92)

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. (93)

He concluded that 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 must in fact consent,  as sexual relations between human beings are mutually consensual. A person who does not understand that sexual relations must only take place when the other person is consenting is unable to understand a fundamental part of the information relevant to the decision.

 Lord Justice Baker accepts that the test for capacity with regards to sexual relations needs to be as straightforward as possible but he states that that cannot justify excluding information which is clearly relevant to the decision. He further states that it is a responsibility of the Court of Protection to protect P from harm so such a matter cannot be left to the criminal justice system alone. Lord Justice Baker does not agree that including this aspect in the relevant information is discriminatory as it is a restriction which applies to all regardless of capacity and that we all accept restrictions on our autonomy which are necessary for the protection of others. 

There were three reasons for setting aside the judgment by Mrs Justice Roberts.

This decision by the Court of Appeal – that an understanding of consent from a sexual partner is necessary for a person to be deemed to have capacity to engage in sexual relations – is the ruling that JB (via his litigation friend the Official Solicitor) has appealed to the Supreme Court.

Why it matters

As was acknowledged in the Court of Appeal judgment, the issue of capacity to engage in sex “is of great importance to people with learning disabilities or acquired disorders of the brain or mind” (para. 3). As things now stand, since the Court of Appeal judgment,  capacity to engage in sex does require an understanding that the other person must have the capacity to consent, and does in fact consent, before and throughout the sexual activity.

This decision has been widely discussed, with commentators divided as to whether (as David Lock QC says) it is “sensible, balanced and should be welcomed by those acting in this difficult area” or whether it unfairly raises the bar for people with impairments in the functioning of the mind or brain who want to engage in sexual activity.  Some commentators are very concerned – like barrister Sophy Miles who analyses a subsequent case (Re HD) that was decided with reference to Re JB, and worries that there may be those “who may have previously enjoyed sexual relationships who now find themselves on the ‘other side’ of the capacity test and are expected to leave this aspect of their lives behind”.  

Feminist researchers have previously argued that “the approach under the Mental Capacity Act 2005 fails to place appropriate focus on consent as central to understanding sexual capacity” (Lindsey & Harding 2021) and have commented that “requiring an understanding of mutual consensuality is a crucial step in the right direction to ensure an added layer of protection, particularly for vulnerable women” (Subhi, 2021)   And from a social work perspective Lorraine Currie comments that the Court of Appeal decision in “makes it more challenging, but it makes it more real”.

“If we are preparing young people for the ‘real world’ then consent of partners is part of that world. It says to me that we are actually considering that people may engage in sexual relationships and so must be prepared to think through what’s involved. That it is now more than the physical possibility of pregnancy and sexually transmitted infections, it is about the possibility that the other person may say ‘no’ or they may say ‘stop’. This has to be a good thing.” ( Lorraine Currie, Capacity, Consent and Sexual Relations: How latest case may help social workers navigate challenges, 17 June 2020, Community Care)

There’s also a fascinating video-discussion about the JB case (and other cases involving capacity for sex) between Nicola Kohn and Victoria Butler-Cole QC – the latter of whom points out the “peculiar” fact that the case in the Court of Appeal was “argued entirely by men and heard entirely by men –  not a single woman appeared, sadly, at any point in the Court of Appeal process, either as counsel or in terms of the judges”.   Victoria Butler-Cole also points to a gulf between the way in which professionals “on the ground” (psychologists, psychiatrists, speech and language therapists) have approached these questions in carrying out capacity assessments, and the “abstract” approach mandated by the court thus far, and speculates that the Court of Appeal judgment “will probably make more sense” to people working with those with mental disabilities whereas “previously there’s perhaps been more of a disconnect between the law and the way in which things are done on the ground”.   

Listening to this half-hour video-discussion would be really useful additional background for anyone intending to observe the Supreme Court hearing, or simply wanting to learn more about issues relating to capacity to engage in sex.

Note: Given the importance of this case to people with learning disabilities and cognitive impairments, the Open Justice Court of Protection Project has asked the Supreme Court to produce an “Easy Read” introduction to the issues, and we understand this will be produced before the hearing. We will link to it from here.

Charlotte Roscoe is a paralegal in the Public Law and Human Rights Department at Irwin Mitchell in Newcastle She has worked at Irwin Mitchell for nearly 5 years and works in areas such as mental capacity, judicial review and education law. She tweets @charlie_roscoe

Celia Kitzinger is co-director (with Gill Loomes-Quinn) of the Open Justice Court of Protection Project. She tweets @KitzingerCelia