Supreme Court decides that a person’s capacity for sex includes knowing that the other person must consent to sex

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Does the test for whether someone has capacity to consent to sex include understanding that the other person must consent before and during the sexual act?

Is it “relevant information” within section 3 of the Mental Capacity Act 2005 that P has to understand in order to have capacity to make decisions about sex?  Anyone called on to do a capacity assessment commonly faces this type of question in a variety of different contexts.  Sex is a particularly difficult area because people with learning disabilities often understand the nature of the sexual act and may even understand something of the risks of that act for themselves, but may not understand how it affects the other person and in particular may not appreciate that the other person has to consent for lawful sexual activity to take place. But does that lack of understanding mean P lacks capacity to engage in sexual activity?

That issue came before the court in A Local Authority v JB where the local authority sought declarations as to JB’s capacity in various matters, including his capacity for sex. It was clear that JB did not understand the other person must be able to consent and gave and maintained consent throughout the sexual activity (although no findings of fact were made as to this). Roberts J at first instance held that the relevant information for this decision did not include an ability to understand that the other person must consent.

The local authority appealed to the Court of Appeal who recast the question as being one of “engaging in” sexual relations. Viewed from that perspective, the Court of Appeal held that the 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 does in fact consent to it” (see [2020] EWCA Civ 735 and previous commentary on the Landmark Health and Social Care Law Blog).

The Official Solicitor, on behalf of JB, appealed to the Supreme Court, who unanimously dismissed the appeal. Lord Stephens, giving the lead judgment, held that information relevant to the decision to engage in sexual relations includes 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. However, given that the factual information in respect of this particular case was not fully considered at first instance, the case was remitted to the judge for reconsideration in light of the judgment.

Practical consequences

For social workers and healthcare staff working to support those who lack capacity, a key issue is to ensure that all practicable steps have been taken to help those individuals to understand the relevant information (as required by section 1(3) of the MCA 2005). This now must include that the person with whom they engage in sexual activity must have the ability to consent to the sexual activity and must in fact consent before and throughout the sexual activity”. In this connection, the judgment at paragraphs 42–46 outlined the programme of work that was being undertaken to ameliorate JB’s risk to women, which included therapy and psycho-education from a forensic and counselling psychologist.

Charles Bishop is a barrister at Landmark Chambers.

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