Social Welfare Update: Capacity to consent to sex: does the test for capacity require an understanding of the need for the other person to consent?

Thursday 31 October 2019

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JB is a 36 year old man with a diagnosis of autism combined with impaired cognition who lives in a supported residential placement under a comprehensive care plan. While he had expressed the wish to find a partner and develop a relationship with them, the care plan imposed restrictions on his ability to socialise freely in order to prevent him from behaving in a sexually inappropriate manner towards women. While he had never faced any allegations of criminal conduct, there was concern that his behaviour, if unrestrained, would result in his exposure to the criminal justice system and pose a risk to women. 

The principal issue before the court was whether JB had capacity to consent to sexual relations. This required it to address at this split hearing the issue of law whether the “information relevant to the decision” within s. 3(1) of the Mental Capacity Act 2005 included the fact that the other person engaging in sexual activity must be able to consent to it and does in fact do so.

Roberts J held that, in order to have capacity to consent to sexual relations, an individual does not have to understand the need for full consent from sexual partners. She noted that sexual relations form “a fundamental aspect of our humanity” and that the process of sexual decision-making was instinctual and emotional rather than rational. The Court concluded that introducing the test advocated by the Local Authority would confuse the nature or character of a sexual act with its lawfulness. In essence, an incapacitous person only needs to appreciate the fact of their own choice and the opportunity for them to refuse to consent. The Court stressed that a requirement to understand the need for continuing consent in a sexual partner would impose a test which was too high.

The court noted that, unlike in relation to consent to sex, the court can make best interests decisions in relation to the support a person needs in relation to future relationships. Therefore, there needed to be a focus on JB’s capacity to make decisions on the support he will need in relation to future relationships with women whether short term of longer term. 

Comment

The decision reaffirms the contrast between the Court of Protection’s role (protection and promotion of individual freedom) and that of the criminal justice system (public protection). 

It follows two other recent important decisions on consent to sexual relations: B (by her litigation friend, the Official Solicitor) v A Local Authority [2019] EWCA Civ 913 (see our case summary here) and LB Tower Hamlets v NB and AU [2019] EWCOP 27, in which Hayden J held that the “issue specific” test may require the incorporation of the circumstances and characteristics of the person lacking mental capacity (a case concerning a married woman who was sexually active with her husband to whom she felt affection and with whom she had had a child).

The full judgment in JB (Capacity: Consent to sexual relations and contact with others) [2019] EWOP 39 is available here.

The full judgment in LB Tower Hamlets v NB and AU [2019] EWCOP 27 is available here.

 

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