By: Daniel Clark, Dr EM, Marion Gray, Rosie Harding, Amber Pugh, Ruby Reed-Berendt, Kristy Regan, Kirsty Stuart, and an Anonymous Couple (Collated and introduced by Celia Kitzinger)
Note: This blog discusses rape and sexual assault.
The Supreme Court considered the issue of whether to have capacity to decide to have sexual relations with another person, a person needs to understand 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.
The Supreme Court states: “The appellant, JB, is a 37 year-old single man with a complex diagnosis of autistic spectrum disorder combined with impaired cognition. JB has expressed a strong desire to have a girlfriend and engage in sexual relations. However, his previous behaviour towards women has led the respondent local authority to conclude that he cannot safely have unsupervised contact with them.
The local authority filed an application in the Court of Protection seeking declarations as to JB’s capacity in various areas, including his capacity to consent to sexual relations. The expert evidence was that JB understands that mechanics of sexual acts and the risks of pregnancy and sexually transmitted disease, but his “understanding of consent is lacking“.
In the Court of Protection, the judge held that it was not necessary for a person to understand the need for their sexual partner’s consent and declared that JB has capacity to consent to sexual relations. The Court of Appeal disagreed. It held that, to have capacity to engage in sexual relations, a person needs to understand that their sexual partner must have the capacity to consent to the sexual activity and must in fact consent before and during the sexual activity. JB appeals to the Supreme Court.”
The Supreme Court judgment “confirmed that for a person to have capacity to consent to sex, they need to understand that their sexual partner must also have the capacity to consent to sex. The Supreme Court also confirmed that a person needs to understand that their sexual partner must consent before and throughout the sexual activity” (quoted from the Easy Read Summary on the Supreme Court webpage, which has lots of other useful links).
These nine responses to the judgment handed down on 24th November 2021 capture some of the issues and concerns raised when considering capacity to consent to sex or to engage in sexual relations.
- Sexual capacity in the Court of Protection by Rosie Harding
Overall, I welcome the clear expression by the Supreme Court of the centrality of consent in understanding capacity to engage in sexual relations. In short, the Supreme Court set out that the appropriate test for capacity in sexual relationships is focused on capacity to “engage in” rather than “consent to” sexual relations. The content of that test follows the Court of Appeal decision, but with one small change. In the Court of Appeal, the consent element was set out as “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” [2020] EWCA Civ 735 at [100] per Baker LJ. In the Supreme Court, the wording of this was amended to “must be able to consent“, avoiding the need to engage with abstract notion of capacity (and, especially, a need to ‘assess’ capacity of prospective sexual partners under the MCA 2005 [see paragraph 95 of the Supreme Court judgment]). (Other elements of the test include the mechanics of the sexual act, the fact that P can say yes or no and can decide whether or not to have sex, that heterosexual sex can result in pregnancy, and that there are health risks involved which can be reduced by using a condom). Jaime Lindsey and I published a paper in the Journal of Law and Society(open access) earlier this year making the case for re-focusing the legal test for sexual capacity onto the social risks resulting from non-consensual sex and exploitation. That paper drew on case file analysis and observations in the Court of Protection. Our focus in the research was on cases relating to capacity regarding sex, marriage or contact. Yet 18 of the 20 case files we reviewed involved allegations of abuse or sexual violence. In our paper (like the Supreme Court), we agreed with the Court of Appeal’s reformulation of the test for capacity to consent to sex into capacity to engage in sexual relations. This re-focusing enables consent to be (rightly) understood as central to all sexual activity. Overall, I think this Supreme Court decision is to be welcomed as a clarification of the information relevant to sexual capacity. There are other aspects of the decision that warrant further scrutiny, but analysis of those is for another day!
Rosie Harding is Professor of Law and Society at Birmingham Law School. She tweets @rosiehardinguk
2. The right decision by Marion Gray
I think it is the right decision, as ‘engage in’ reflects not just being an active instigator of, or passive recipient of, sex. It is in my opinion relevant information for P to understand, that the other party has to consent from beginning to end, as the act takes place through mutual consent. There are potential generalisable aspects like Lord Stephen’s rejecting the submission that the Mental Capacity Act 2005 is solely confined to the protection of P, that are controversial. Some mention has been made of the MCA being used for public protection in this regard. I have no idea about that but I do agree with the decision based on mutual consent being relevant information.
Marion Gray is a Special (Medical) Visitor at the Office of the Public Guardian
3. Anticipating test cases, by Kirsty Stuart
It is positive that the judgment reflects the fact that people are individuals and the law needs to reflect that but I do have some potential concerns about the ways in which some groups of people may be affected by the fact they may inherently struggle with consideration of others’ perspectives and what may happen with two individuals with needs. I look forward to watching test cases to ascertain the approaches being taken
Kirsty Stuart is an associate solicitor at Irwin Mitchell and a member of the core group of the Open Justice Court of Protection Project. She tweets @MrsArcticride
4. Between protection and empowerment A carer’s reflections, by Daniel Clark
I have been interested in the case of A Local Authority v JB since it first came before the Court of Protection in 2019. As a (paid) carer of people living with dementia, and previously of people living with an Acquired Brain Injury, issues relating to sex and sexual relationships have not been uncommon. This has ranged from disinhibited sexual behaviour (such as inappropriate touching) to clear expressions of intent (such as explicitly stating a desire to have sex with another person).
However, the consensus (prior to this ruling) on what amounts to the ‘relevant information’ related to capacity to engage in sex has been woefully inadequate. Whilst there is, of course, great importance in understanding the risk of STIs and pregnancy when one has sex with another person, this does not tell the full story. Sexual relations are, by their very nature, complementary. For a monogamous same-sex couple, who both have some form of cognitive impairment, problems about STIs and pregnancy are not relevant.
Consent, however, is. It is not enough for one of them, A, to understand that he consents to sex; it is of the utmost importance that A understands the other person, B, also needs to consent to sex both before and during sex. Where B does not consent to sexual activity, but A persists in that sexual activity, a sexual assault occurs.
I once supported two people who, of their own volition, struck up a friendly relationship. Its exact nature was only discovered when the woman told a member of staff that she was planning on having sex with the man. It soon became apparent that she did not want to have sex: she thought that ‘it had to be done’ and that she couldn’t say no because this man had been so kind to her.
Here, issues of consent and capacity collided. The woman thought she had to have sex, and her cognitive impairment meant that she lacked insight into the fact she could withhold consent. In this instance, she was supported to explain that she did not want to have sex (which the man accepted without hesitation) and a therapeutic programme was put in place to help her talk through these issues in a safe environment.
This example highlights two things. The first is that, when discussing questions of sex, the approach must be sufficiently strengths-based, anti-oppressive, and trauma-informed. The second is that the delicate balance between protection from harm and empowerment to make one’s own choices must be struck.
It is for this reason that I was relieved to see the ruling of the Supreme Court today. The Mental Capacity Act 2005 was ‘designed to protect and empower people’ who lack the capacity to make certain decisions, and it is on the element of the protection of P that these issues pivot. As a carer of people who may lack capacity to make certain decisions, I am very aware of the tension between protection from harm and empowerment to be as independent as possible.
As the judgment repeatedly and sensitively states, the risks associated with P being deemed to have the capacity to engage in sex, whilst lacking an adequate understanding of consent, are extremely high. These risks include the potential to commit a sexual assault, which in turn will increase the risk of prosecution and imprisonment. It was noted that imprisonment would have an extremely detrimental effect on the mental health of JB (Stephens J, para.40, [2021] UKSC 52) and, without doubt, on anyone else with an impairment or disturbance of the mind or brain who cannot understand the issues of consent.
Furthermore, not to include consent as part of the ‘relevant information’ would unnecessarily put others at risk. If somebody withdraws their consent halfway through sex but the other person does not understand this can happen, and persists, a sexual assault occurs. Both emotional and physical harm can arise.
However, a focus on protection runs the risk of a paternalistic attitude developing. It is quite common for care staff to be risk-averse in their attempts to protect from harm, which can inadvertently cause psychological harm. As I have mentioned, the Mental Capacity Act 2005 was designed not only to protect but also to empower individuals. References to potential education programmes within the judgment itself were, on my part, well received (Stephens J, para.42-46, [2021] UKSC 52). If P can be educated on issues about consent, with the potential that they may (re)gain the capacity to be able to engage in sexual activity, then this should be promoted as much as possible.
Whilst I do not have personal experience of the types of education programme that the judgment has in mind, I do have experience of supporting people to modify disinhibited sexual behaviour that arises as a result of a cognitive impairment. This can range from unwelcome touching to frequent sexually charged comments. In particular, I think of one man who would tell explicit sexual stories, and then tell female members of staff to get into bed with him. When rejected, he could become quite distressed.
Much of the work done to modify such behaviours is concerned with emphasising the consent of the other person, taking into account their potential feelings as well as the social situation. It is not an easy process, and has the potential to be extremely distressing to the person in question. I would be very interested to see how this can be expanded into comprehensive education programmes.
Critics may argue that the suggestion of education programmes puts an undue burden on certain people. For example, it is well known that disorders such as dementia make learning difficult. If somebody cannot retain information as a result of their impairment, it is unlikely they will be able to use or weigh up that information. This effectively makes sexual activity prohibited for people who, because of their impairment, will be unable to meaningfully engage with education about sex. This is actually an argument similar to the second grounds of appeal in this case.
I concede that this is a compelling line of argument. Its implication is, in effect, that this is a discriminatory ruling which sets a criterion that is unreachable for certain people. However, I remain unconvinced by the merits of this discrimination argument. It is a fact that there is an inevitable tension between protection and empowerment, and that this tension cannot always be reconciled. In cases where there is a question of somebody’s capacity to engage in sexual relations, and that person cannot be empowered to understand issues of consent, I believe that protection must take precedence. That is, of course, protection not just of P but of others who are put at risk by the potential behaviour of P.
In September of this year, I completed my MA in Political Theory. It’s therefore quite natural for me to fall back on philosophy and theory when reflecting on certain problems. In this instance, I’m reminded of Amia Srinivasan’s recently published book ‘The Right to Sex’. In it, she argues that no such right exists: ‘sex’, she says, ‘is not a sandwich’ (p. 72). The state may distribute sandwiches, but it would be unacceptable for a state to distribute access to sex.
It’s a useful analogy because it cuts to the core of this case. None of us has the right to access the bodies of others; none of us can just assume that others have a duty to concede to our sexual desires.
The Supreme Court has restated that simple fact.
Daniel Clark is a paid carer. He is also deputy director of Backbench: an unaffiliated, open platform, blog that publishes a range of articles about current affairs. He has recently completed an MA in Political Theory. He tweets@DanielClark132
5. Beyond the protection of P? by Ruby Reed-Berendt
“[T]he protection of the public provided by the criminal justice system or by a sexual risk order cannot detract from the protection which is provided in practical terms by including in the information relevant to the decision the reasonably foreseeable adverse consequences for P and for members of the public. For all these reasons I reject the submission that the purpose of the MCA is solely confined to the protection of P” (From the Supreme Court judgment: para. 92, my emphasis)
The finding that the Mental Capacity Act (MCA) 2005 goes beyond the protection of P appears to be at odds with its ethos of empowerment and placing the individual at the heart of the decision. The reference to a dual function of protecting P and the public aligns more closely with the Mental Health Act 1983, which explicitly makes reference to the risk that P might pose to others as a reason to make decisions on treatment without their involvement. I am concerned that the involvement of risk in a finding of incapacity might mean that individuals (such as JB) who are deemed a possible risk to others are not given the opportunity to be supported to develop their capacity to take decisions for themselves, but instead are found to lack capacity out of concern for something they might do in the future. If risk is indeed to become part of capacity assessments, it will need to be reflected in the Code of Practice to ensure it is applied appropriately and consistently. Notwithstanding this, the use of individual and public protection calls into question the MCA’s purported focus on ensuring that individuals participate in decisions about them, instead giving the courts another “practical” means to exert control over the lives of those found to lack capacity.
Ruby Reed-Berendt is a PhD Candidate and Research Associate at Edinburgh Law School. Her research focuses on mental health and mental capacity law from a feminist perspective. She tweets @rubyreedberendt
6. A feminist perspective on Re C and Re JB, by Dr EM
Two important legal cases originating in the Court of Protection and heard by the Court of Appeal (Re C) and the Supreme Court (Re JB) in 2021 have dealt with and settled on legal – and subsequently cultural – understandings of sexual relations between adults.
In Re C, the case concerned whether care workers for a 27-year old man, “C”, would be risking a criminal offence if they were to facilitate the practical arrangements for him to visit a sex worker.
In Re. JB, the question was whether an ability to recognise that a sexual partner must be able to give consent, and is in fact doing so, before and during sexual relations, is required in order to deem a person to have capacity to engage in sexual relations.
Although not headline front page news in the newspapers, these cases have resulted in a significant challenge and reassertion of the parameters of what is acceptable sexual contact between adults.
Both cases focused on male sexual wants and rights in conflict with ideas about female consent. Both cases attempted to argue from Article 8 of the Human Rights Act 1998 that the men concerned had a right to sexual relations with women.
For me, the questions which emerged from the two cases can be boiled down to ‘do men have the right to purchase women’s consent?’, ‘do men have the right to purchase women’s bodies for sexual use?’, ‘do a man’s sexual wants override women’s safety?’, ‘does a man have to understand that women may not consent or can remove consent to sexual activity?’. Feminists from the Centre for Women’s Justice intervened in both cases placing the issues in the wider context of male violence against women and girls.
These rulings could have re-relegated women to the level of masturbatory aids for men. Women would have been legally understood as physical holes for penetration, and sex implied to be an act absent mutual want or desire. A supposed male right to sexual intercourse would have been deemed more important than a female’s right not to be assaulted, raped or exploited.
Instead, both courts have resisted the renewed objectification of women and reasserted that women’s rights must be considered in cases where male sexual entitlement is claimed. Both courts have rejected the argument that males have a right to sexual intercourse with females and the corollary there exists a corresponding duty for sexual access to female bodies to be provided. In both cases we see women’s safety made an important factor in deliberations.
Re C
In the case of Re C the court acknowledged:
‘It is an undoubted fact that many of those working as prostitutes have been exploited, for example as victims of modern slavery or trafficked to the United Kingdom. It is the regular experience of the courts to come across such cases in both the criminal and immigration contexts. Interveners before this court (charities called Nia and women@thewell) attest to its prevalence’. (para. 34)
Section 53A of the Sexual Offences Act 2003 makes it a criminal offence to pay for sexual services of a prostitute subjected to force or coercion. The court declared in the case of Re C that ‘It is irrelevant to liability under this section whether a defendant knew or had reason to believe that the prostitute in question had been exploited. The section was the subject of debate in these proceedings because although checks made before engaging the services of a sex worker might reduce the risk of committing the offence, they can rarely eradicate them altogether. Based on the arrangements contemplated there would necessarily be a risk that both C and his carers might commit an offence under section 53A’ (para. 34). This is a significant statement. The court has acknowledged that due to the widespread coercion and force in the sex trade in England and Wales, one could never be certain that the woman being purchased is engaging freely.
C’s case could have entrenched the sex trade, since the argument advanced under Article 8 entailed:
“… the underlying proposition that there is a positive obligation on the state to allow care workers to make arrangements for sexual contact with prostitutes for those in its care over the age of consent (or at least over 18) who are unable to make the arrangements themselves, at least in circumstances where contact with prostitutes is not generally prohibited. There is no sign of such a positive obligation having been recognised by the Strasbourg Court, nor of that court having recognised that article 8 entails a positive obligation on the state to allow the purchase of sex without fear of criminal sanction.” (para. 53)
Re JB
The men in both these cases claiming the legal right to sexual activity with women had recognised histories of sexual predation or violence against women. The courts thus had to implicitly balance women’s rights to safety with male sexual wants. The Supreme Court pointed out that:
‘JB has made repeated attempts to invite vulnerable women somewhere he perceived they would not be seen (such as a lavatory) with a view to initiating sexual contact. On one occasion, in 2016, JB’s behaviour, towards such a vulnerable woman, led to a police investigation. Although there was an allegation that he had assaulted a woman, the police decided not to prosecute’. (Para. 28).
The court further details that:
‘… reports suggests that, when previously attending events for people with learning disabilities, JB would make a “beeline” for highly vulnerable women which suggested to Dr Thrift that he is able to discern those with such vulnerabilities and weighs them in relation to his ability to be successful in his aim of having sex’. (Para. 29).
Furthermore, ‘JB’s understanding of the concept of consent was also graphically illustrated by his response to the question asked by Dr Thrift: “If a woman gets drunk at a party and has sex with a man there, is she fair game for anyone else?”, JB[‘s] response was: “I’d say she was fair game yes. Especially if she’s done it with one person. Yes if she drinks enough she’s bound to do it with the second one too.”. (Para. 35).
JB poses a clear risk of sexual violence towards women and girls and his care plan should subsequently not be changed to enable him to potentially act in a harmful way. The court balanced women’s right to safety with JB’s right to private life.
In the case of JB, the judge made what is culturally acceptable in terms of sexual activity explicit when he stated that ‘The fact that the other person must have the ability to consent to the sexual activity and must in fact consent before and throughout the sexual activity applies to everyone in society’ (para . 120).
Dr EM is a feminist academic, disability rights campaigner and traumatic brain injury survivor. She tweets @PankhurstEM
7. State surveillance of our sex lives, by an Anonymous Couple
The Supreme Court judgment relates to a particular case (JB) but will now be applied to all future Ps in the Court of Protection, for many of whom the case-specific facts will be very different.
The key legal change introduced by this ruling is that the information relevant to the decision to engage in sexual relations now includes “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”. This judgment extends the weight and scope of the understanding of “consent”, underscoring its central importance in determining capacity for sex.
In our view, this will have a detrimental effect on the rights and well-being of some vulnerable people – especially older people in long-standing relationships.
We recognise that understanding that the other person must consent is of key importance in the context of trying to prevent male violence against women, sexual assault and rape. But to allow this “protective” imperative to determine whether or not vulnerable people with (for example) dementia may or may not be permitted to have sex with their spouses seems to us an illegitimate extension.
We note the proviso in the judgment that: “A general and non-specific basis is not the only appropriate formulation in respect of sexual relations as even in that context, “the matter” can be person-specific where it involves, for instance, sexual relations between a couple who have been in a long-standing relationship where one of them develops dementia or sustains a significant traumatic brain injury. It could also be person-specific in the case of sexual relations between two individuals who are mutually attracted to one another but who both have impairments of the functioning of their minds.” (para. 71). We are sceptical that these “person-specific” ways of considering sexual relations will be generally understood or appropriately applied on the ground.
More broadly, as a married couple in a loving relationship of nearly 40 years duration, we have long been appalled by the idea that strangers might in future believe themselves entitled to assess our capacity to engage in sexual relations with each other. We are horrified that we might be cross-questioned about the mechanics of the sexual act and be denied the right to share a bed if we don’t answer correctly. The Supreme Court judgment has done nothing to obviate our existing concerns, and has added another. In addition to each of us being required to demonstrate capacity to consent to sex, we now have to demonstrate that we understand that the other person must be able to consent to sex, and does in fact so consent before and during the sexual encounter.
All these enquiries into our sex life seem to us to be prurient and offensive. This feels like creeping state surveillance of our sexual lives. Frankly, we do not wish to be protected against each other by the state in this way. Our sex life is an intensely private and intimate aspect of our relationship and we object to it becoming a matter of public scrutiny for capacity assessors or in a court of law. We would rather risk a future of sex without consent than be subjected to the encroachment of this kind of state ‘protection’.
And what of the scenario where, for example, one member of a couple is deemed not to have an understanding that the other must consent to sex, but the other person is in fact consenting. This opens up the possibility of both spouses consenting to sex – and actively desiring it – but marital sex being prohibited nonetheless on the grounds that one or other of the partners doesn’t meet the new capacity stipulation laid down by the Supreme Court. It’s wholly unclear that (or how) the “person-specific” stipulations would play out in this situation. In sum, we are dismayed by this further encroachment of the state into our private lives.
8. A shift toward ‘pre-crime’ control? by Kristy Regan
There is always an inherent tension in completing Mental Capacity Act assessments as to the nature of relevant information. The MCA Code of Practice (2007) s. 3.09 says ‘The Act (MCA, 2005) cannot state exactly what information will be relevant in each case’. It then goes on to discuss a number of steps which should be taken, including using ‘simple, broad explanations…yet not miss out important information’. A bit of a challenge at the best of times, and one which can be interpreted in a number of ways depending on the views of the assessor.
Helpfully, over the years there have been a number of cases which have led to the current position of what ‘relevant information’ in relation to sexual relations entails. In my view, the case of JB has filled a concerning gap in what should be considered relevant, namely that the capacity to engage in sexual relations needs to include the understanding that the other person must have the ability to consent to the sexual activity, and indeed consent before and throughout. As argued by others, this is more akin to the principles of the Mental Health Act 1983 rather than the MCA, namely in invoking the idea of the impact on others.
In practice, I have seen best interests decisions reframed in order to avoid explicitly saying that a decision is for the protection of others. For example, in one case I reviewed a service user (P) with a learning disability who had a sexual interest in minors. The justification for the use of restrictions on the service user had been reframed, to say that the risk was to P, due to retaliation from others or due to risk of imprisonment. The unspoken reality was that the restrictions were to minimise risk to others rather than to P himself.
While I do agree in principle about adding this additional element to the relevant information, I think the addition of consideration of harm to others or the potential to engage criminal law could have more far-reaching implications on other decisions made under the Act. How this plays out will be interesting to witness. It definitely feels like a shift away from empowerment to a means of controlling future, as yet unacted, criminal behaviour: a bit of a “Minority Report” (see Footnote) scenario. How far from this to a situation where assessors take risk-averse decisions on a variety of issues?
Kristy Regan is a Senior Lecturer in Social Work at the University of Sunderland and also a Court of Protection Visitor. She tweets @kristyregan13
Footnote: Minority Report is a 2002 American science fiction action film, directed by Steven Spielberg, starring Tom Cruise, and loosely based on the 1956 short story, “The Minority Report” by Philip K Dick. The film is set in the year 2054, where ‘Pre-crime’, a specialised police department, apprehends (potential future) criminals based on fore-knowledge provided by psychics called “precogs”.
9. A landmark decision, by Amber Pugh
The decision of the UK Supreme Court (UKSC) in A Local Authority v JB marks the first time that the UKSC has considered the test for lack of capacity contained in the Mental Capacity Act 2005, and so it is certainly a landmark decision. In addition to providing a useful overview of how capacity should be assessed under the Act generally, the judgment in JB is a long-awaited authoritative statement from the summit on the matter of capacity and sexual relations.
Understanding the other person’s ability to consent
The UKSC upheld the Court of Appeal’s judgment (available here and discussed here), but made a slight tweak to the phrasing of the relevant information, so that P now needs to be able to understand that ‘the other person must have the ability to consent to the sexual activity and must in fact consent before and throughout the sexual activity’ [98]. The Court of Appeal had previously held that P must be able to understand that the other person has ‘the capacity to consent’ [100] (although later on in its judgment the Court of Appeal had also referred to P needing to understand that the other person is able to consent [106]). The change in phrasing from ‘capacity’ to ‘ability’ was to ensure that the threshold for sexual capacity was not set too high [95]. Regrettably, however, the UKSC did not provide any guidance as to exactly what level of understanding will suffice here, nor how it is to be assessed in practice. During the hearing, counsel for the local authority had suggested that it would be sufficient if P could identify physical cues which may indicate that a person lacks capacity, and gave the example of someone who is ‘just looking around the room not connected to anything’. However, as I stated in a previous blog post, this would be counter to s.2(3)(b) of the Mental Capacity Act [MCA] 2005 because it would require P to make an unjustified assumption about the other person’s capacity based on their condition or behaviour. The UKSC may have been reluctant to provide guidance on this point because any such guidance would have to be extremely carefully crafted to ensure that it did not risk making prejudicial assumptions about disabled people.Without further direction, however, there is scope for inconsistent and potentially restrictive approaches to be adopted when assessing P’s understanding of the other person’s ‘ability to consent’. Indeed, it may be the case that, in practice, some assessors will expect P to make unjustified assumptions based on the other person’s impairment. I suspect this is an issue that we will see the lower courts grappling with in future cases.
Issue-specific, person-specific, or decision-specific?
The UKSC found that the test for lack of capacity contained in the MCA is decision-specific, and it therefore requires the courts to have regard to the facts of each particular case when determining the information relevant to the decision. Lord Justice Stephens explained that, in the context of sexual relations, this means that the relevant information may be formulated in a generic, non-specific way where P wishes to have sex but there is no identified (or identifiable) partner at the time of the capacity assessment. But it can also be formulated in a person-specific sense where the other person is known [70]-[71]. The Court stated, however, that sexual capacity should ordinarily be assessed in a non-specific way. A person-specific approach may be required where there is:
‘a couple who have been in a longstanding relationship where one of them develops dementia or sustains a significant traumatic brain injury. It could also be person-specific in the case of sexual relations between two individuals who are mutually attracted to one another but who both have impairments of the functioning of their minds.’ [71]
It is likely that a significant number of capacity assessments moving forward will, in actuality, be person-specific.
If the test for capacity to engage in sexual relations were to be applied in a strictly non-specific way, then there would be potential for draconian decisions to be made. Indeed, in HD (Capacity to Engage in Sexual Relations) [2021] EWCOP 15,the only barrier to HD having capacity was an inability to understand that the other person had to have the ability to consent. The evidence of HD’s social worker suggested that HD could be supported to understand this in relation to a specific person, but would be unable to develop a general understanding of this concept [23]. Consequently, HD was found to lack capacity [27]. The decision-specific approach in JB may, therefore, provide much-needed flexibility and allow people in situations similar to HD to enjoy mutually consenting sexual relationships. Permitting a person-specific approach to be adopted in some cases also allows for the relevant information to include risks posed to P by a specific person (JB at [72]). This should provide a necessary safeguard against abuse, and has long been argued for by commentators.
Although the flexibility provided by a decision-specific approach is desirable in some cases, it also has the potential to give rise to illogical outcomes, which I have discussed here.
Public protection
The UKSC held that the courts must have regard to ‘reasonably foreseeable adverse consequences…for members of the public’ when determining the information relevant to a decision [92]. Such an explicit statement about public protection considerations in the context of the MCA is highly unusual. It will be interesting to see what effect this has on subsequent MCA cases, and I am concerned that it could exacerbate current risk-averse approaches ‘on the ground’.
Supporting P to gain capacity
The prominence given to the importance of section 1(3) of the MCA – which states that a person is not to be treated as unable to make a decision unless all practicable steps to help him to do so have been taken – is particularly welcome. This provision, which is sometimes referred to as the support principle, can often be forgotten about. Yet, the judgment of the UKSC highlights that it has a crucial role to play in ensuring that any interference with P’s Article 8 rights is proportionate and justifiable [118].
UNCRPD
The United Nations Convention on the Rights of Persons with Disabilities (CRPD) is an international human rights treaty which focuses specifically on the rights of disabled people. Although the CRPD has been ratified by the UK, it has yet to be incorporated into domestic law and so it is not binding on domestic courts (the courts can choose not to follow it). Nevertheless, it can, as both the UKSC and the Court of Protection have previously recognised, have a persuasive influence when interpreting the MCA. Despite this, the UKSC in JB found that:
‘the contention that this court should examine whether the United Kingdom has violated provisions of an unincorporated international treaty (which is the effect of the appellant’s contention at (b)) has recently been considered, and rejected, by this court in R (SC) v Secretary of State for Work and Pensions [2021] UKSC 26; [2021] 3 WLR 428, paras 77-96.’ [120]”
It is disappointing that the Court’s only engagement with the CRPD was to dismiss it in this way. The lower courts were initially reticent to address the CRPD at all, and this statement might result in fewer references being made to it in future cases.
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 (note – that’s two underscores!)
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Photo credit: UK Supreme Court
Promoting Open Justice in the Court of Protection 
Overall I am in agreement with the majority of reflections. However when it comes to the concerns raised about the state being able to interfere in a couple’s relationship, it appears to me as if in this situation the couple understandably can’t imagine one of them changing so much to no longer be able to consent. However this can happen. I know that if I was to ever lose my ability to consent I would be glad for the state to intervene and say this was not okay.
I liked Daniels reflections on training programs. He mentions it is well known that conditions such as dementia make learning difficult. Difficult perhaps and this would depend on how advanced the condition is. Wendy Mitchell’s autobiography ‘ Someone I used to know’ (if my memory serves me well) challenges the narrative that one cannot continue to develop when one has dementia. However I digress a bit, when I was a volunteer for a rape crisis centre we had excellent training including looking at consent, this included looking at body language. If ones judgement is not impaired, I would argue that it is relatively easy to tell whether the other party is consenting to the act. What becomes more complicated of course for outsiders is when there are various power and control factors to consider.
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