Ruby Reed-Berendt and Beverley Clough, 13 May 2024
This blog is a summary of a recent article published in the International Journal of Law and Psychiatry, as part of a special issue on mental health and borders. You can read the article in full here.
Peter (not his real name) is nearly 20 years old and has been diagnosed with mild learning disability, ADHD and possible OCD. Peter suffered sexual abuse as a child, and whilst he was a teenager he was convicted of a serious sexual offence against a young child. After this conviction, Peter was placed under the care of the local authority and is currently being looked after in a supported living placement. There are ongoing concerns regarding his sexual behaviour and in July 2021 he was assessed by a neuropsychiatrist as posing a “very high risk of committing harmful sexual acts towards others” due to intrusive sexual thoughts. He has a girlfriend, Jenny, who is also considered vulnerable and has social workers (employed by a second local authority). He and Jenny are not allowed to be alone together, but Peter has expressed a wish to live with her and to have a sexual relationship. Proceedings were commenced in the Court of Protection regarding Peter’s capacity in relation to a number of decisions, including deciding who he can have contact with, and engaging in sexual relations.
The case was heard by HHJ Burrows in 2023 (A Local Authority v ZZ [2023] EWCOP 61). He held that Peter lacked capacity to make decisions about contact but that he had capacity to make decisions about sexual relationships. He found that Peter could understand the physical act of sex, the risks involved, and the requirements of consent. Whilst he accepted that Peter is unable to control his urges, he concluded that this was not relevant to the question of his capacity. However, this was overturned on appeal by Mrs Justice Theis (Re ZZ [2024] EWCOP 21), who held that his “sexually disinhibited behaviour” needs to be considered as part of Peter’s ability to use or weigh the question of consent.
The case in many ways demonstrates the complexity of the issues surrounding capacity and sexual relations and the challenges that arise when these matters come to court. Central to both judgments was the application of the Supreme Court decision in A Local Authority v JB [2023] UKSC 52, which was the focus of our article. This case recast how capacity to make decisions about sexual relationships should be assessed, and provided guidance as to how capacity in general should be assessed under the Mental Capacity Act 2005 (MCA).
The court’s ruling – that the person’s ability to understand the need for consent from a sexual partner is a key part of assessing capacity – was met with a mixed reception (and you can read some initial reactions to the decision here). For some, it was an important recognition of the centrality of consent to sexual relationships, and a decision that would help protect women and girls at risk of gender-based violence. For others, the decision represents a problematic restriction on the sexual expression of disabled people. This means the case can be seen as a clash between the interests of the disability movement in promoting the freedoms of disabled people, and those of feminists who resist violence against women.
In our article, we seek to challenge this framing. We argue that the direction the case law is taking should be a concern for feminist and disability movements. We draw on literatures from feminist theory, Black feminist theory, and disability studies to point to problematic features within the Supreme Court judgment – and case law in this area more broadly. We suggest that to realise both goals – moving towards disability equality and combatting sexual violence against women and girls – there is a need for dynamic conversations involving both movements, which carefully consider how apparently progressive social justice developments can leave behind those on the margins. This requires us to think about how the law is responding in these cases and the wider implications and consequences of such responses.
We begin by looking back on the histories of legal responses to mental disability. This story is one of restriction and control, where people with cognitive and intellectual impairments were denied any right to form sexual relationships. These early approaches tended to see disabled men as hypersexual and dangerous, and disabled women as asexual, childlike, vulnerable, and in need of protection from sex.[1] Despite changes in the last 100 years, we point to the ways in which these ideas of risk and vulnerability reappear in the assessment of capacity and sexual relations under the MCA. Indeed, if a person is considered to lack capacity to make decisions about sexual relations, then the local authority responsible for their care must prevent them from forming sexual relationships. At the very least, this shows the ongoing legal regulation of disabled people’s sexuality.
Turning to the JB judgment itself, the first key concern we raise in the paper is how the judgment approaches the issue of equality. The barrister representing JB argued that: “…to include as part of the information relevant to the decision 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 imposes a discriminatory cerebral analysis on the potentially incapacitous”. (JB, para 96)
However, Lord Stephens rejected the submission, agreeing with the Court of Appeal that “amongst the matters which every person engaging in sexual relations must think about is whether the other person is consenting”. The submission of discrimination was rejected on a similar basis, with Lord Stephens emphasising that the standard could not be viewed as discriminatory given the requirement of consent applied to all in society.
We challenge this approach to discrimination and equality. We argue that the dismissal of concerns about discrimination overlooks the ways that disabled people experience law, as well as the reality that the MCA is specifically focused on those with a cognitive impairment (section 2) and is therefore not present in the lives of non-disabled people. Those who do not fall within the scope of section 2 will not have their capacity assessed or run the risk of having sexual relations and opportunities for them severely circumscribed through close supervision. Similarly, they are not routinely dependent on gatekeepers such as support workers to allow or question the development of potential sexual relationships.
We further raise concern about the extension of the concept of protection within the case. Usually in mental capacity law, and these cases in particular, decision-making is said to be a balance between promoting a person’s sexual autonomy and protecting them from harm. Lord Stephens made clear that when capacity is assessed, the reasonably foreseeable consequences of making or failing to make a decision can extend to the consequences for others. He noted that in the context of JB: “there are reasonably foreseeable consequences for JB of a decision to engage in sexual relations, such as imprisonment for sexual assault or rape if the other person does not consent. There are also reasonably foreseeable harmful consequences to persons whom JB might sexually assault or rape” (JB, para 73).
This expansion of the foreseeable consequences to consider the consequences for others was justified as providing protection to the public, with the Supreme Court confirming the MCA is not confined to only protecting the person. This aspect can be viewed in a positive light, in that it opens up the concept of harm to consider broader harms which can eventuate from decision-making. However, we suggest that court’s use of the language of protection, and the framing of JB that this entails, has worrisome implications and may extend the scope of mental capacity law, blurring the boundaries between mental capacity and mental health law or criminal law, but without the formal checks and balances that these other legal frameworks provide. The MCA is, in many ways, heavily informal, based on discretionary power and ideas of reasonableness.
Much of the earlier case law on sexual relations in the Court of Protection involved disabled women thought to be ‘vulnerable’ and at risk of sexual exploitation or abuse. In many ways, these more recent cases which are tending to involve P’s who are male raise important questions around gender. By making reference to the potential risks posed to the public by JB, the Supreme Court appears to make an implicit judgment in relation to JB’s dangerousness. This calls back to histories noted above, where disabled men were seen as a threat which required legal control. We can also see a blurring between vulnerability and dangerousness in this protectionist approach. JB is positioned as simultaneously vulnerable to becoming an offender, and dangerous to others by virtue of being a potential offender. He is simultaneously at risk, and a risk, he and others like him, perceived to present a threat to others, are cast back into this framing of disability as dangerous and deficient.
The underpinning of the decision – to prevent violence against women and girls – is undoubtedly a laudable one. But feminists have long argued that tinkering with the law on sexual offences does not address underlying social inequalities and attitudes which underpin these problems. Indeed, as we see in the ZZ case, the decision in JB has by no means settled this area of law. In another case, Mr Justice Poole has also cautioned against a ‘protective imperative’, suggesting that the court’s desire to protect others should not drive the assessment of capacity (Re PN [2023] EWCOP 44). Challenges continue about where ‘capacity’ ends and where unwise decision-making begins, especially in the context of significant concerns about risk. We need to keep questioning whether the MCA – given the concerns we raise – is the right method to tackle this important problem.
For many of us, a decision to have sex with another person is among the most private and personal we make. However, as we have seen, this is not necessarily the case in the context of mental disability, where state control and enforced celibacy remain a strong possibility. There is a continued struggle to properly consider and account for the sexuality of disabled people within the MCA’s legal framework. When thinking about this in the context of tackling sexual violence, we need to think and look differently, keeping feminist and disability aims in conversation with each other throughout. As Black feminist Angela Davis reminds us, we need to look to “lift as we climb” – to take seriously the struggles of all marginalised groups in seeking equality.
[1] See Sandland, R. (2013), ‘Sex and Capacity: The Management of Monsters?’ Modern Law Review, 76: 981-1009. ttps://doi.org/10.1111/1468-2230.12045
Ruby Reed-Berendt is a PhD researcher at Edinburgh Law School. Her PhD provides an intersectional critique of mental capacity law and draws on Black feminist theory, critical disability studies, and critical race theory. She tweets @rubyreedberendt
Beverley Clough is a Professor in Law & Social Justice at Manchester Law School, Manchester Metropolitan University. Her work focussed on the intersections of health and social care law through feminist legal theory and critical disability studies. She tweets at @bev_clough
Promoting Open Justice in the Court of Protection 