By Amber Pugh, 10th August 2021
Sex with a consenting partner plays an important role in developing personal relationships and has been described as being a fundamental human right. However, people who lack the capacity to make the decision to have sex are prevented from enjoying sexual relationships, regardless of how much they desire them (Mental Capacity Act 2005, s.27(1)(b)). It is of immense importance, therefore, that the law in this area strikes the correct balance between empowerment and protection from harm. Unfortunately, to date, the case law regarding capacity and sex has been complicated and confusing. This may be set to change.
On the 15th July 2021, the Supreme Court heard the appeal in A Local Authority v JB. JB, the initials used for the person at the centre of this case, is a 38-year-old autistic man with impaired cognition. He has expressed a strong desire to have a girlfriend and engage in sexual relations with women, but the local authority has concerns that he does not understand that the other person has to consent to the sexual activity. The issues that the Supreme Court has been asked to decide are (in the words of their ‘easy read’ summary (a downloadable pdf from the Supreme Court website)):
In order to have capacity to consent to sex:
- Does a person need to understand that their sexual partner must have the capacity to consent to sex?
- Does the person also need to understand that their sexual partner must consent before the sexual activity starts and that their consent must continue throughout the sexual activity?
Irrespective of what the Supreme Court decides, its judgment is set to be a landmark one. The Supreme Court has previously considered other aspects of mental capacity law, including best interest under the Mental Capacity Act 2005 (Aintree University Hospitals NHS Trust v James  USK 67) and deprivation of liberty (P v Cheshire West and Chester Council & Anor  UKSC 19), but this is the first time that it has been asked to examine the test for lack of capacity set out in sections 2 and 3 of the Act in detail. In this blog post I will discuss some of the issues that I found to be of particular interest during the hearing; it is not intended to be a comprehensive summary of proceedings.
Capacity to consent to sex or capacity to engage in sexual relations?
A summary of the first instance and Court of Appeal judgments in the case can be found here. For present purposes it is sufficient to note that the decision of the Court of Appeal in JB challenged the approach previously adopted in the case law which had examined whether ‘P’ had the ‘capacity to consent to sex’ (D County Council v LS  EWHC 1544 (Fam); B v A Local Authority  EWCA Civ 913) and instead held that the question that should normally be asked is whether P has the ‘capacity to engage in sexual relations’ .
Section 2(1) Mental Capacity Act 2005 says that a person lacks capacity if they have an ‘impairment of, or a disturbance in the functioning of, the mind or brain’ which causes them to be ‘unable to make a decision’ about the matter at hand. Section 3 then explains that a person is ‘unable to make a decision’ if they are unable (a) to 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 communicate their decision.
The Court of Appeal in JB held that when the decision to be made under s.2 is framed as being about whether or not to engage in sexual relations, then the ‘information relevant to the decision’ for the purposes of s.3 may include:
(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. 
JB was subsequently granted leave to appeal to the Supreme Court. Lead Counsel for JB (by his Litigation Friend, the Official Solicitor) was John McKendrick QC of Outer Temple Chambers, and Lead Counsel for the respondent local authority was Vikram Sachdeva QC of 39 Essex Chambers. The case was heard by Lord Briggs, Lady Arden, Lord Burrows, Lord Stephens, and Lady Rose. A recording of the hearing can be watched here.
The appellant’s main argument was that the Court of Appeal was wrong to find that the decision to be made was whether or not to ‘engage in sexual relations’, and counsel invited the court to follow the decision of Roberts J at first instance. If accepted by the court, then this would see the decision once again framed as ‘capacity to consent to sex’ and P would no longer have to understand that the other person must have capacity to consent to the sexual activity and must in fact consent to the sexual activity.
The respondent’s position was that the decision of the Court of Appeal was correct and must be upheld. However, as will be discussed below, they submitted that the wording of ‘the relevant information’ should be changed so that P has to understand the other person’s ‘ability’ to consent rather than their ‘capacity’.
At the start of the hearing Lord Briggs stated that the court would also hear argument on a new point that counsel for the respondent (local authority) wished to raise and that this argument would be dealt with on a de bene esse (for what it is worth/provisional) basis, with the court determining whether permission to appeal the point should be granted when it delivers its judgment. Lord Briggs did not state what the new argument that counsel wished to raise was, but it became clear during the course of the hearing that it related to how the information relevant to the decision should be framed i.e. should it be issue-specific (looking at sex in general), person/situation-specific (looking at sex with a particular person and in particular circumstances), or should the plain words of the Mental Capacity Act 2005 apply without any gloss.
The Supreme Court now has an opportunity to look at this area of law afresh and its decision could fundamentally alter the way that capacity to make decisions about sex is assessed. But the task that lies before it is complicated. The consequences of being found to lack capacity to consent to have sexual relations are profound. Section 27(1)(b) of the Mental Capacity Act 2005 lists consent to sex as one of the decisions that is excluded from best interest decision-making under the Act. The effect of this is that if P is assessed as lacking capacity, then nobody else can decide that it is in P’s best interest to have a sexual relationship with another person. Any form of sexual activity with ‘a person with a mental disorder impeding choice‘ is a criminal offence under the Sexual Offences Act 2003. Thus, a finding that an individual lacks the capacity to make decisions about sex tends to lead to safeguards being put in place in an effort to minimise the potential for sexual activity to occur. Indeed, the individual may be subject to a level of supervision so intrusive that it amounts to a deprivation of liberty. In essence, P has celibacy imposed upon them.
Counsel for JB stated that the court is being asked to find the ‘least imperfect solution to a complex human problem’. This struck me as reminiscent of a comment made by Hallett LJ in the case of R v Bree  EWCA Crim 804 that the ‘practical reality is that there are some areas of human behaviour which are inapt for detailed legislative structures’ . The multi-varied nature of sexuality and decision-making in this area means that it is impossible to formulate a test for sexual capacity that will garner universal approval. Whatever the Supreme Court decides, its judgment should bring a much-needed level of certainty to judicial decision-making in this area. This is because most of the judgments on sexual capacity have been first instance decisions and therefore are not binding on other judges (the judges can choose not to follow them). This has allowed for differing and sometimes conflicting approaches to emerge within the case law, with assessors on the ground then having to navigate a path through a legal quagmire.
What are the ‘reasonably foreseeable consequences’ of having sex?
Under section 3(4) of the MCA, the information relevant to the decision must include information about the reasonably foreseeable consequences of the decision. This has been interpreted restrictively in the context of sexual capacity, and has been limited to certain medical consequences, namely pregnancy and sexually transmitted infections. It does not extend, for example, to an understanding of what is involved in parenting a child or that any child born may be taken into care (London Borough of Ealing v KS & Ors  EWHC 636 (Fam)).
The appellant’s argument was that the decision to be made when looking at section 2 of the MCA is whether to give or withhold consent. John McKendrick submitted that when the decision is framed as being about P’s consent, then the reasonably foreseeable consequences of having sex cannot be regarded as encompassing the impact that P’s actions would have on the other person.
The respondent’s position was that the potential harm to P and to the other person that would stem from non-consensual sex was within the remit of section 3(4). Vikram Sachdeva argued that information relevant to the decision should not simply include what capacitous people ordinarily consider, but also ‘what people should take into account’ [emphasis added].
The judges seemed to favour the respondent’s submissions. Indeed, early on in the hearing Lady Arden stated that she thought that section 3(4) was broad enough to capture the harmful effects of non-consensual sex. In addition to this, she opined that if the decision engages Article 8 of the European Convention on Human Rights (which provides a qualified right to respect for private and family life), then the court, as a public authority, has a duty to take public protection into consideration when making an order.
If the Supreme Court does hold that harm from non-consensual sex is a foreseeable consequence of having sex, then I would suggest that it should nevertheless reject the proposition that the relevant information ought to include what people ‘should’ think about when making decisions. This is incredibly subjective and people’s views of what ‘should’ be considered will vary widely. It would allow scope for assessors to import their own personal views into the test and could have harmful ramifications for anyone who finds themselves subject to a capacity assessment. It was also entirely unnecessary for the purposes of the respondent’s argument because most people do consider the other person’s consent when deciding to have sex.
Capacity to consent versus ability to consent
The Court of Appeal in JB held at paragraph 100 of the judgment that the information relevant to the decision to engage in sexual relations may include ‘that the other person must have the capacity to consent to the sexual activity’. Later in the judgment, at paragraph 106, Baker LJ said that: “What is needed, in my view, is an understanding that you should only have sex with someone who is able to consent and gives and maintains consent throughout“.
Vikram Sachdeva submitted that it is the formulation at paragraph 106 that should be followed, not that given at paragraph 100 which could be construed as requiring P to conduct a refined capacity assessment of the other person. He argued that focussing on the other person’s ability to consent as opposed to their capacity would make it plain that the necessary level of understanding is ‘what is expected of a person in the street without technical knowledge’. This was said to entail looking at a person’s physical appearance in order to try and gauge if they are over the age of consent, and whether they are incapacitated or not. The example used by Vikram Sachdeva to demonstrate how this would work in practice was looking to see whether a person is so intoxicated that they cannot speak. Lady Rose quite rightly stated that that was not the problem in this case, and queried whether the argument advanced by counsel would require P to be able to recognise that the other person may have ‘the same vulnerabilities he has’ and therefore may lack capacity. Counsel conceded that the ‘hardcore’ answer was that it would. The circularity of this approach is evident. Capacity is rejected in favour of a direction that P has to understand that the other person must be able to consent, but in determining whether the other person has that ability, P must assess whether or not the person is incapacitated.
Vikram Sachdeva went on to state that it is not always readily apparent if a person has capacity or not, but there are ‘obvious cases’ where there may be cause to believe that they do not. He gave the examples of ‘cases where someone cannot speak at all’ or where they are ‘just looking around the room not connected to anything’. It must be remembered that neither of these things is evidence of a lack of capacity, and comments such as these can serve to entrench negative assumptions about disabled people’s sexuality. Despite this, counsel argued that these ‘obvious’ cases demonstrate that a test which requires P to be able to understand, use or weigh information about the other person’s ability to consent is workable.
The Mental Capacity Act 2005 states that all adults are presumed to have capacity (s.1(2)), and a person cannot be found to lack capacity merely because of ‘a condition of his, or an aspect of his behaviour, which might lead others to make unjustified assumptions about his capacity‘. (s.2(3)(b)). Counsel’s approach, however, seems to require P to make such unjustified assumptions in order to demonstrate that they can assess the other person’s ability to consent to sex. The comments made by counsel can also be seen as privileging verbal communication when people who are non-verbal will often use assistive communication devices or have an alternative, unique form of communicating.
In his response to Vikram Sachdeva’s submissions, John McKendrick (counsel for JB) stated that if the Supreme Court concludes that the decision to be taken is to ‘engage in sexual relations’, then an approach that focuses on the other person’s ability to consent would be welcomed as being the more appropriate standard.
It is plainly correct that P should not have to assess the other person’s capacity to consent to sex to the standard required under the MCA. This would place a tremendous burden on P and would not reflect the reality of most sexual encounters. However, if the court holds that the other person’s consent is relevant information, then there needs to be guidance as to precisely what is required in terms of understanding the other person’s capacity or ability to consent. Any such guidance will need to be drafted with extreme care to ensure that it does not collapse into circularity.
Sexual Risk Orders and Sexual Harm Prevention Orders
One of the submissions made on behalf of the appellant (JB) was that the MCA was not intended to be used to protect the public and that the Court of Appeal, by requiring P to understand the other person’s consent, wrongly introduced matters of public protection into the assessment of capacity. It was argued that the correct way to protect the public where an individual is unable to understand consent is to obtain a Sexual Risk Order (SRO) or a Sexual Harm Prevention Order (SHPO).
SROs and SHPOs are civil orders that a Chief Officer of Police or the Director General of the National Crime Agency can apply to the magistrates’ court for or, in the case of a SHPO, can be made upon conviction. An order can be made where an individual poses a risk of sexual harm to the public. A SHPO can only be made if an individual has been convicted or charged with a sexual or violent offence listed in Schedule Three or Schedule Five of the Sexual Offences Act 2003. However, a SRO does not require the individual to have been convicted or charged of any offence; it can be imposed where an individual has done an act of a sexual nature and the order is deemed necessary to protect the public from harm. A person who is subject to an SRO or SHPO is prohibited from doing anything listed in the order. If they fail to comply with the order then they have committed a criminal offence and can be liable to be imprisoned, to pay a fine, or to both. Further information about these orders can be found in guidance published by the Home Office, which is available here.
Lord Stephens seemed sceptical that SROs and SHPOs would be an appropriate response and asked what the terms of an order would be if P is unable to understand consent. In response, John McKendrick (counsel for JB) said that the terms would be very simple and gave the example of an order saying ‘you must not be alone with women’. As Lord Stephens noted, P is criminalised if they breach the order. On the example given by John McKendrick, this would mean that P could potentially be imprisoned for being alone with a woman, even though that behaviour in and of itself is not illegal.
At present, JB lives with two other men in a supported living placement. Applying John McKendrick’s example to JB would mean that if one of his housemates were to invite a woman over, then JB would either have to restrict his movement in his own home or look to live elsewhere in order to ensure that he did not breach the order. Similar problems would arise in respect of any female staff members who were to provide support to JB. The social care workforce is predominantly female, and so an order of this kind could make it difficult for JB to receive appropriate support. Clearly this is undesirable, and the use of an SRO or SHPO should be avoided if there is a less intrusive alternative. Indeed, an order with such sweeping terms would be extremely difficult to police, which the Home Office guidance says would work against making it in the first place (p.37). John McKendrick’s submission also raises the question of what the terms of an order would be if P was bisexual and did not understand consent. Would P then be subject to an order stipulating that they must not be alone with men or women? This would obviously be impractical to implement and oppressive to P.
Conspicuously absent from counsel’s submissions on SROs and SHPOs was the fact that requiring P to understand the other person’s consent does not just protect the other person from harm, but also protects P from the harm that would arise if he committed an offence. This was raised later on in the hearing by the respondents, who stated that it is a ‘false dichotomy’ to assert that the restrictions JB is currently under are solely for public protection.
Abandoning the ‘issue-specific’/’person and situation-specific’ distinction?
A large portion of the hearing was dedicated to argument on whether P has to understand the information relevant to the decision in an issue-specific manner, person- and situation-specific manner, or whether these labels should just be abandoned entirely. Following the decision of the Court of Appeal in IM v LM  EWCA Civ 37, an issue-specific approach is adopted in relation to capacity to consent to sex, and so the identity and characteristics of P’s partner are irrelevant to determining P’s capacity. John McKendrick submitted that this is the correct approach. This was challenged by Lord Stephens, who asked with some incredulity why the information relevant to the decision cannot include information about the other party, particularly if the other person is sexually abusive and could commit the most ‘heinous crimes on the individual’. In response, counsel explained that the traditional approach has been to impose restrictions upon P’s contact with the other person in situations where P does not understand that that person is abusive. Unlike sex, capacity to make decisions about contact is assessed on a ‘person-specific’ basis and so the risk that the other person could pose to P is information relevant to making the decision (LBX v K & Ors  EWHC 3230 (Fam) ). If P lacks the capacity to make a decision about contact, then a decision can be made in their best interest.
Lord Briggs saw the logic in adopting an issue-specific approach in situations where P wishes to have sexual relations, but there is no identified other person. He did not seem convinced, however, that this is the correct way to assess capacity where the person that P wants to have sex with is identifiable. He noted that someone who might not have capacity on a general approach may nevertheless have it if it is assessed in relation to a particular person, for example, a partner of many years. The appellant’s position was that these concerns can be met by tailoring the relevant information if necessary, and relied upon the decision of Hayden J in LB Tower Hamlets v NB & AU  EWCOP 27. This would permit the relevant information to be contracted if, on the facts at hand, P’s circumstances rendered it reasonable to do so. For example, in NB Hayden J held that P did not have to understand how sexually transmitted infections (STIs) were transmitted because she had been in a monogamous relationship of thirty years and there was no history of STIs. He acknowledged that this did not mean that there was no risk of STIs, but that on the facts the risk had to be regarded as very low and therefore a lack of understanding regarding transmission should not give rise to a finding of lack of capacity regarding sex. Mr Justice Hayden also explained that tailoring the information to P’s circumstances would mean that gay men, lesbians, and post-menopausal women will generally not need to understand the risk of pregnancy .
It was argued on behalf of the respondent authority that the issue-specific and person-specific labels should be rejected altogether because they act as a gloss upon the wording of the MCA, and thus serve to obfuscate its straightforward application. However, at times it was unclear whether this was, in fact, counsel’s stance or whether they were advocating for a person-specific approach. Indeed, counsel apologised to the court for lapsing into the use of ‘person-specific’ language during his submissions. He nevertheless proceeded to state that ‘you do not have sex in general, you decide to have it with a particular person’. Both Lord Burrows and Lord Briggs contested this, and raised the fact that in JB’s case he wants to have sex with women but has not yet met a particular woman or women with whom to have sex. Counsel then stated that an approach that simply construes the Act would provide the solution here: if P wants to have sex with a particular person, then the decision to be made is ‘does P have capacity to make the decision to have sex with X?’, but if the person is yet to be identified then the decision can only be defined in general terms.
This approach is not without its difficulties and it can give rise to seemingly illogical outcomes. For example, it made me think of the following hypothetical scenario:
Lucas, a 26 year old man with a learning disability, wishes to have sexual relations but has yet to meet someone with whom to have them. There are reasons to believe that Lucas may not have the capacity to make decisions about sex, and a capacity assessment is carried out. The assessment is conducted on a general basis and Lucas is found to have capacity. Lucas goes on a night out, meets Alex and has casual sex with him. They both enjoyed it and decide that they want to see each other again. A few weeks later it comes to light that Alex has a history of sexually abusing his partners. Lucas’s capacity is assessed again because he now wants to have sex specifically with Alex. He is found to lack the capacity to make the decision to have sex with Alex because he does not understand the risk that Alex may abuse him.
One of the reasons that the court has been reluctant to adopt a person/situation-specific approach in the past was because it was it was ‘difficult to see how it can sensibly be said that she has capacity to consent to a particular sexual act with Y whilst at the same time lacking capacity to consent to precisely the same sexual act with Z’ (Re MM (An Adult)  EWHC 2003 (Fam) ). The approach advanced by Vikram Sachdeva may seem even more peculiar because, as seen by the above scenario, it means that P may have sexual capacity in a general sense and have sexual relations with a person on one day, but may lack the capacity to make the decision to have sex with that very same person on another day, notwithstanding the fact that their general understanding of the relevant information remains unchanged. There is no easy solution for the Supreme Court here and, irrespective of how it is framed, the test for sexual capacity will always have its discontents. Of course, it must be remembered that the Supreme Court may decide not to address the issue at all and instead refuse permission to appeal the point.
The importance of language
There were a few points during the hearing where the language or phrasing used struck me as being regrettable. For example, Lord Justice Stephens queried:
‘What does the local authority do after you have given the ability to have sexual activity with people and the patient does not understand that the other party has to consent?’ [emphasis added]
The court’s function is, of course, to declare whether or not P has the capacity to make decisions about sex. It does not grant the ability to have sex. To phrase it in this way is infantilising because it suggests that P must obtain permission in order to have a sexual relationship when, in fact, this is not the case. If P has the capacity to make the decision to have sex, then they are entitled to exercise that capacity. If P lacks the capacity then, as was stated earlier, the court cannot consent on their behalf. Furthermore, the use of the word ‘patient’ – which was used repeatedly by the Justices to refer to P – perhaps indicates that the judges are not up to date with this area of the law. ‘Patient’ is an outdated mode of referring to the ‘protected party’ in proceedings and is no longer used.
Later in the hearing Lord Justice Stephens remarked that ‘some people who suffer from these unfortunate conditions are completely compliant’ [emphasis added]. This comment is out of step with disability rights. Describing disabled people as ‘suffering’ and disabilities as being ‘unfortunate’ perpetuates a ‘personal tragedy’ view of disability. It frames disability as being objectively bad and imposes this view upon the disabled person despite the fact that the person might not share it.
Implications of the move to ‘capacity to engage in sexual relations’
Counsel for the local authority (Vikram Sachdeva) submitted that the reframing of the decision by the Court of Appeal to ‘capacity to engage in sexual relations’ is not a ‘game changer’ and stated that since the Court of Appeal handed down its judgment there has only been one case before the court where the change from ‘consent to sex’ to ‘engage in sexual relations’ has had an impact. It must be remembered, however, that the majority of capacity assessments do not involve court applications, and so relying solely upon the minority of cases that do go before the court is not a true indicator of how the judgment is affecting assessments. Indeed, in the absence of empirical research there is no real way of gauging whether the Court of Appeal’s decision in JB is changing the outcome of capacity assessments.
The judges seemed to be leaning towards an approach that would uphold the need for P to understand the other person’s consent, and which would move away from the strict dichotomy between issue-specific and person/situation-specific approaches to sexual capacity (albeit permission has yet to be granted on that point). This would represent a marked break from how sexual capacity has historically been framed in the civil courts. However, the court has also received written submissions and so the views expressed during the oral hearing cannot be taken as a firm indicator of what the final judgment will be.
At one point during the hearing, Lady Rose briefly mentioned a proposal from an intervener which would separate capacity from consent. Unfortunately there was no further detail as to what that would entail, but it may be similar to the framework advocated for by Liz Brosnan and Eilionóir Flynn. Brosnan and Flynn contend that the focus should be on providing a person with information and actively communicating with them. If the individual expresses a will and preference in relation to a decision, then, in the absence of coercion, this must be respected. Capacity and consent are currently tightly interlinked in the law, and a proposal that would allow consent to be separated from the need for mental capacity could result in radical change. It will be interesting to see how the court deals with this in its judgment.
Following the Court of Appeal’s decision in JB, Alex Ruck Keene had tentatively suggested that the move from ‘capacity to consent to sex’ to ‘capacity to engage in sexual relations’ could open the door for the court to make best interest decisions regarding sex. This is because ‘capacity to engage in sexual relations is not explicitly listed as being an excluded decision in section 27 of the Mental Capacity Act 2005. However, section 27 is not a closed list and, towards the end of the Supreme Court hearing, Lord Briggs noted that it was common ground that if the test for capacity to engage in sexual relations is upheld, then the decision to ‘engage in sexual relations’ must be an excluded decision for the purposes of section 27. For now, at least, it appears as though the legal framework may continue to prohibit people who lack capacity to make decisions about sex from having sexual relationships.
The judgment of the Supreme Court could fundamentally change the way that capacity is assessed in relation to sexual decision-making and, indeed, how sections 2 and 3 of the MCA 2005 are understood more generally. It is the first time that the court has been asked to look at the test for lack of capacity set out in the MCA in depth and so, regardless of what is ultimately decided, the judgment will be a significant one. The court did not specify exactly when the judgment will be handed down, but Lord Briggs did state that they would endeavour to make it available as soon as reasonably possible. I await the judgment with interest.
Amber Pugh is a final year PhD candidate in the School of Law and Social Justice at the University of Liverpool. Her research examines the balance between empowerment and protection in mental capacity law, with a particular focus on decision-making around sex and contraception. She tweets @Amber__Pugh and can be contacted via email: A.V.Pugh@liverpool.ac.uk
Photo by Francais a Londres on Unsplash shows the Supreme Court’s Official Emblem, designed by Yvonne Holton, Herald Painter at the Court of Lord Lyon in Scotland (Check out this webpage on Supreme Court artwork for more information).