Capacity, consent and sexual relations – the Supreme Court decides

The Supreme Court has for the first time looked in detail at what it means to have or lack capacity to make a decision, and has done so in a very high-stakes context: that of sexual relations.  In A Local Authority v JB [2021] UKSC 52, the central question was whether the man in question, JB, had to be able to understand, use and weigh the information that any prospective sexual partner must be able to, give, and maintain consent to any sexual activity he was initiating.   In turn, this led to a profound question: is that something that anyone should be able to understand?   If it is, then it would not be discriminatory to hold a person with a cognitive impairment such a JB to such a standard; if it is not, then it would be.

For my walkthrough of the case, see here (you can also get this in podcast form):

The factual background to the case is set out in some detail in the judgment of the Supreme Court, although, as Lord Stephens emphasised (paragraph 9), there have been no final factual findings, even if much of the evidence is not disputed.  For present purposes, of most importance is the fact that the expert evidence relating to JB was to the effect that he could not understand or weigh the concept of consent by another sexual partner, and could not do so in consequence of an impairment of his mind (autism).   As Lord Stephens identified (at paragraph 36), if the relevant information for purposes of the capacity test included the need for such consent, then JB would not satisfy the test.  No-one could therefore make a decision on his behalf to engage in sexual relations by virtue of the ban in s.27(1)(b) MCA 2005.

The first judge to consider the question, Roberts J, approached matters on the basis that the relevant issue – the ‘matter’ for purposes of the capacity test in s.2 MCA 2005 – was JB’s ability to consent to sexual relations.  She reached the conclusion that the other’s consent was not information that JB had to be able to understand, use and weigh to be able to consent, the essential underpinning of her judgment being that such would be discriminatory.  In essence, she considered that, given that those without cognitive impairments are not judged in advance, the questions of whether JB (or others in his position) might be committing offences in consequence by initiating sexual relations with a person who was not consenting should be examined through the criminal law in retrospect.

The Court of Appeal took a different course, firstly by reformulating the question as being one of whether JB had capacity to make the decision to engage in sexual relations, on the basis that “the word ‘’consent’ implies agreeing to sexual relations proposed by someone else,” but that in JB’s case it was JB who wished to initiate sexual relations with others.   The Court of Appeal also placed heavy emphasis upon the fact that, whilst the MCA enshrines the principles of autonomy and protection of those with potentially impaired decision-making capacity, the MCA and the Court of Protection do not exist in a vacuum, but are part of a wider system of law and justice, and must therefore take into account – where relevant – the need to protect others.   The Court of Appeal therefore upheld the local authority’s appeal against the decision of Roberts J and considered that the relevant information included the need for the others’ consent.

As JB’s litigation friend, the Official Solicitor appealed against the decision of the Court of Appeal.

JB’s circumstances

Lord Stephens, giving the judgment of the court, set out an overview of JB’s factual circumstances, including – as noted above – the expert evidence as to the effect of his cognitive impairments upon his ‘factual’ capacity to make decisions in relation to sexual activity.  He also identified the expert evidence relating to the risks posed by JB to women (including those with learning disabilities) and the consequential risks to JB, including physical or psychological harm from others, including relatives or friends of the potential victims, incarceration (giving rise to ‘significant harm’ to his mental health) or hospitalisation.   As Lord Stephens noted (at paragraph 41), the relevance of these matters was that “if section 1(4)(a) MCA the reasonably foreseeable consequences of JB deciding to engage in or to consent to sexual relations, when the other person is unable to consent or does not consent throughout the sexual activity, is that JB could harm himself and/or the other person, then that would be information relevant to the decision. If it is, then under section 3(1)(a) MCA, JB should be able to understand that information and under section 3(1)(c) he should be able to use or weigh it as part of the decision-making process” (paragraph 41).   Lord Stephens also identified the work that had been proposed to ameliorate JB’s risk to women in circumstances where one expert identified that his “’sole goal,’ if his account to her is correct’ as being to have physical and sexual contact with a woman and any woman” (paragraph 23); as Lord Stephens had noted previously (para 11), JB’s current care plan imposed restrictions upon him, including 1:1 supervision when out in the community and in particular in the presence of women.

The MCA and the concept of capacity

Lord Stephens gave an overview of the concept of capacity within the MCA, including a commentary upon the principles in s.1.  Of note, perhaps, is the fact that he carefully delineated the scope of s.1(4), which is often misunderstood as conferring a right to make unwise decisions.  As he identified:

Legal capacity depends on the application of sections 2 and 3 of the MCA together with the principles in section 1. It does not depend on the wisdom of the decision. Furthermore, an important purpose of the MCA is to promote autonomy. That purpose aids the interpretation of sections 2 and 3 of the MCA. If P has capacity to make a decision then he or she has the right to make an unwise decision and to suffer the consequences if and when things go wrong. In this way P can learn from mistakes and thus attain a greater degree of independence.

Lord Stephens then turned to the concept of capacity, identifying how that enshrined in the MCA represents a functional approach, as opposed to the outcome or status approach (see paras 57-62).   Following the Court of Appeal in York City Council v C [2013] EWCA Civ 478 (sometimes also called PC v NC), he identified that section 2(1) – the core determinative provision – requires the court (and hence anyone else, outside court) to address two questions.

First, is the person unable to make the decision for themselves?   As he noted:

67.  […] The focus is on the capacity to make a specific decision so that the determination of capacity under Part 1 of the MCA 2005 is decision-specific as the Court of Appeal stated in this case at para 91. The only statutory test is in relation to the ability to decide. In the context of sexual relations, the other vocabulary that has developed around the MCA, of “person-specific”, “act-specific”, “situation-specific” and “issue-specific”, should not be permitted to detract from that statutory test, though it may helpfully be used to identify a particular feature of the matter in respect of which a decision is to be made in an individual case.

68.  As the assessment of capacity is decision-specific, the court is required to identify the correct formulation of “the matter” in respect of which it must evaluate whether P is unable to make a decision for himself: see York City Council v C at paras 19, 35 and 40.

69.  The correct formulation of “the matter” then leads to a requirement to identify “the information relevant to the decision” under section 3(1)(a) which includes information about the reasonably foreseeable consequences of deciding one way or another or of failing to make the decision: see section 3(4).

This has the important consequence that the relevant information has to be identified within the specific factual matrix of the case.   This has some very important consequences in relation to sexual relations.   Ordinarily, “it will ordinarily be formulated in a non-specific way because, in accordance with ordinary human experience, it will involve a forward-looking evaluation directed to the nature of the activity rather than to the identity of the sexual partner” (paragraph 71).  However, Lord Stephens disagreed with the Court of Appeal’s determination In re M (An Adult) (Capacity: Consent to Sexual Relations) [2014] EWCA Civ 37 that, largely for reasons of pragmatism, the test could only be looked at on a general specific-basis:

71.  […] Pragmatism does not require that consent to future sexual relations can only be assessed on a general and non-specific basis. Furthermore, such a restriction on the formulation of the matter is contrary to the open-textured nature of section 2(1) MCA. 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. (emphasis in original)

If, on the facts of the case, the formulation could properly be described as person-specific, Lord Stephens identified, there were two consequences:

72. […] then the information relevant to the decision may be different, for instance depending on the characteristics of the other person, see TZ at para 55 (risk of pregnancy resulting from sexual intercourse is not relevant to a decision whether or not to engage in, or consent to, sexual relations with someone of the same sex) or the risks posed to P by an individual who has been convicted of serious sexual offences, see York City Council v C at para 39. Moreover, the practicable steps which must be taken to help P under section 1(3) MCA may be informed by whether “the matter” in relation to sexual relations may be described as person-specific. For instance, it might be possible to help P to understand the response of one potential sexual partner in circumstances where he will remain unable to understand the diverse responses of many hypothetical sexual partners. Furthermore, if the matter can be described as person-specific then the reasonably foreseeable consequences of deciding one way or another (see section 3(4)(a) MCA and para 73 below) may be different. There may, for example, be no reasonably foreseeable consequence of a sexually transmitted disease in a long-standing monogamous relationship where one partner has developed dementia. Finally, the potential for “serious grave consequences” may also differ.

Lord Stephens emphasised the need to be clear about reasonably foreseeable consequences for two reasons.   The first is that this can include consequences for others (for instance, on the evidence before the court, for a person whom JB might sexually assault or rape).   The second is that where there are “serious grave consequences,” then, as the Code of Practice says (at paragraph 4.19), it is even more important that the person understand the information in question.   That having been said, Lord Stephens made clear, there has to be a limit in terms of envisaging reasonably foreseeable consequences, so that:

75. […] “the notional decision-making process attributed to the protected person with regard to consent to sexual relations should not become divorced from the actual decision-making process carried out in that regard on a daily basis by persons of full capacity”: see In re M (An Adult) (Capacity: Consent to Sexual Relations) [2015] Fam 61, para 80. To require a potentially incapacitous person to be capable of envisaging more consequences than persons of full capacity would derogate from personal autonomy.

When the relevant information has been identified, it is necessary to test whether the person can (for instance) understand it.   In relation to ‘using and weighing,’  Lord Stephens endorsed the observation of the Court of Appeal in Re M that the person’s ability  “should not involve a refined analysis of the sort which does not typically inform the decision … made by a person of full capacity,” noting that “[i]t would also derogate from personal autonomy to require a potentially incapacitous person to undertake a more refined analysis than persons of full capacity.”

If the court concludes that P cannot make the decision, then the second question is whether there is a “clear causative nexus between P’s inability to make a decision for himself in relation to the matter and an impairment of, or a disturbance in the functioning of, P’s mind or brain.”   Silently putting comprehensively to bed the error in the current iteration of the Code of Practice (which guides people to start with the so-called ‘diagnostic’ element), Lord Stephens was clear (at paragraph 78) that the two questions in s.2(1) were to be approached in the sequence set out above, i.e. starting with the functional aspect.

The Official Solicitor’s challenge

The first limb of the challenge mounted by the Official Solicitor was that the Court of Appeal was incorrect to recast the “matter” as engaging in sexual relations.   Lord Stephens had little hesitation in dismissing this ground:

90. I agree with the Court of Appeal that formulating “the matter” as engaging in, rather than consenting to, sexual relations better captures the nature of the issues in a case such as this, where JB wishes to initiate relations with others, rather than consent to relations proposed by someone else. […] It may be helpful to observe that the terminology of a capacity to decide to “engage in” sexual relations embraces both (i) P’s capacity to consent to sexual relations initiated by the other party and (ii) P’s capacity to understand that, in relation to sexual relations initiated by P, the other party must be able to consent to sexual relations and must in fact be consenting, and consenting throughout, to the sexual relations.

91. I also agree with the Court of Appeal at para 93, with my addition in brackets, that the formulation of engaging in sexual relations “is how the question of capacity with regard to sexual relations (under the MCA) should normally be assessed in most cases”.

The second limb of the challenge was as to the inclusion of the requirement that other person must have the ability to consent to the sexual activity and must in fact consent before and throughout the sexual activity.  On JB’s behalf it was argued that: (1) this inappropriately extended the requisite information in order to protect the other person or members of the public; (2) that this was not the purpose of the MCA, which was confined to the protection of P, and did not extend to the protection of members of the public; and (3) the protection of the public was the purpose of the criminal law and that such protection could also be obtained by making a sexual risk order under section 122A of the Sexual Offences Act 2003.

Lord Stephens disagreed:

92.  [….] The information relevant to the decision includes information about the “reasonably foreseeable consequences” of a decision, or of failing to make a decision, which consequences are not limited to the consequences for P: see para 73 above. The consequences for other persons or for members of the public are therefore a part of the information relevant to the decision. Furthermore, I agree with the Court of Appeal, at para 6, that:

“as a public authority, the Court of Protection has an obligation under section 6 of the Human Rights Act 1998 not to act in a way which is incompatible with a right under the European Convention of Human Rights, as set out in Schedule 1 to the Act. Within the court, that obligation usually arises when considering the human rights of P, but it also extends to the rights of others.”

93. In this way the court as a public authority, in determining what information is relevant to the decision, must include reasonably foreseeable adverse consequences for P and for members of the public. In practice, by doing so, the court under the MCA protects members of the public. As the Court of Appeal observed, at para 98:

“Although the Court of Protection’s principal responsibility is towards P, it is part of the wider system of justice which exists to protect society as a whole.”

Finally, the 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.

The Official Solicitor also argued that including this information impermissibly recast the test as person-specific, contrary to the consistent case-law to the contrary.   Lord Stephens rejected this:

First, the statutory test is decision-specific: see para 67 above. Second, the issues in this case (but, as I have stressed at paras 71-72 above, the position can be different in other cases) do not relate to sexual relations with any particular person. What is required is a generalised forward-looking evaluation in relation to JB’s capacity to have sexual relations with any woman. The inclusion of the consent of the other in the relevant information for the purposes of that evaluation does not introduce the specific characteristics of any individual person into the evaluation, but instead reflects the consensual nature of all sexual activity. It is not, therefore, “person-specific.”

The Official Solicitor also argued that the concepts in question were: “too extensive and nebulous for JB or for others with mental impairments to understand. Accordingly, [Leading Counsel] argued, JB and others were being set up to fail. The appellant was supported in this submission by Respond’s [a charity providing therapeutic and support services to those with learning disabilities and/or autism] submission that the Court of Appeal had promulgated “an elevated abstract test” which was likely to give rise to problems in real life situations.”   The Official Solicitor relied, in particular, upon the legal complexities of the criminal law relating to consent, but Lord Stephens did not agree, in particular that the person in question would need to be able to understand and apply the different ways in the absence of consent could be proved:

95. […] However, that is not the sort of refined analysis which typically informs the decision to engage in sexual relations made by a person of full capacity (see para 77 above). A potentially incapacitous person is simply required to understand that the other person must be able to consent and does in fact consent throughout. For my part the only alteration that needs to be made to the summary of the information relevant to the decision to engage in sexual relations, set out by the Court of Appeal (see para 84 above) is to change the words “must have capacity to” in (2) to “must be able to”. Subject to that change, I consider that the concepts are not too nebulous or refined, nor do they amount to an elevated abstract test, nor do they require a detailed understanding of the Crown Court Compendium.

Next, the Official Solicitor argued that to include the information “imposes a discriminatory cerebral analysis on the potentially incapacitous,” a submission rejected by Lord Stephens:

96. […] As the Court of Appeal observed, at para 96, “amongst the matters which every person engaging in sexual relations must think about is whether the other person is consenting” (emphasis added). If that is properly viewed as cerebral or as involving a degree of analysis, a decision to engage in sexual relations is necessarily cerebral or analytical to that extent.

The Official Solicitor then argued that the approach taken by the Court of Appeal created an impermissible difference between the civil and criminal law.   Lord Stephens started by identifying (as had Munby J in Re MM [2007] EWHC 2003 (Fam)) that there is no necessary requirement for the test for capacity to consent to sexual relations to be the same in the two fields, and that there were already existing differences in relation to the application of the test for capacity which may lead to different conclusions in civil and criminal trials, two such differences being the different standard of proof, and the second being that there focus of the criminal law is retrospective focusing on the person’s capacity to consent at the time of the alleged offence, whereas a court assessing capacity to engage in sexual relations under the MCA ordinarily needs to make a general, prospective evaluation which is not tied down to a particular time. However, Lord Stephens agreed with previous judicial observations that, all else being equal, it is in principle desirable, though not necessary, that there should be the same test for capacity in both the civil and criminal law, that there were sound policy reasons to have the two tests aligned, and that that the civil law test for consent cannot impose a less demanding test of capacity than the criminal law test.   However, he considered that it remained possible for the civil law to impose a different and more demanding test of capacity:

106. […]. In that respect, there are countervailing and overriding policy reasons supporting the clarification of the test for capacity under the MCA: namely, the protection of others and the protection of P, see para 92 above. Those policy reasons would amply justify any differences that might arise between the civil and criminal law tests for capacity. As the Court of Appeal stated in this case (at para 97) the fundamental responsibilities of the Court of Protection include the duty to protect P from harm. The protection given by the requirement that P should understand that P should only have sex with someone who is able to consent and gives and maintains consent throughout “protects both participants from serious harm” (see the Court of Appeal in this case at para 106). I agree. On that ground alone I would dismiss the argument that any differences between the civil and criminal law test for capacity which have been or may have been created by the clarification of the test under the MCA, are “impermissible”. Accordingly, this argument falls at the first hurdle.

107. In addition, while I agree with Munby J that, in general terms, both the criminal law and the civil law serve the same function in this context of protecting the vulnerable from abuse and exploitation, that should not conceal the different purposes of the civil and criminal law and the different ways in which they carry out their functions. The primary purpose of the criminal law is the prosecution of behaviour that is classified as criminal and the punishment of offenders by the state. In civil proceedings under the MCA the courts must balance the promotion of the autonomy of vulnerable persons with their protection from harm, all while, so far as required by general principles of law and the court’s obligations as a public authority under the Human Rights Act 1998, having regard to the rights of others. Viewed in this way, the differences between criminal proceedings and civil proceedings under the MCA suggest that it may be permissible to adopt different tests of capacity in the civil and the criminal law.

Importantly, however, Lord Stephens made clear that the question of whether the clarification of the test of capacity under the MCA by his decision resulted in any differences with the test for capacity in the criminal law is best left to be decided on the facts of individual criminal cases and may turn on the particular criminal offence in question.  As he identified at paragraph 108, “[n]ot only are the potential differences more appropriately left to individual cases, but the restricted way in which this appeal was conducted did not allow all the similarities or differences between the civil and criminal law to be fully explored”.   Having done so, he then gave a series of obiter observations about the issue, in particular that:

111. […] the clarification of the test for capacity under the MCA creates a difference with the criminal law in the context of the offences created by sections 30-33 SOA [offences in relation to persons with a mental disorder impeding choice]. That difference is not impermissible, however, because it is capable of being identified and accommodated in any criminal trial.

112. Furthermore, and more broadly, in relation to the position of P as a complainant in respect of most other offences under the SOA (such as rape or sexual assault contrary to sections 1 or 3 SOA) the primary issue would relate to P’s capacity to “consent to” not to “engage in” sexual relations. These are two different concepts. The capacity to “engage in” sexual relations encompasses both P as the initiator of those relations and P as the person consenting to sexual relations initiated by another. The information relevant to a decision whether to initiate 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. That is not information relevant to an evaluation of whether P has the capacity to “consent to” sexual relations initiated by another person. As the Court of Appeal stated in this case (at para 93) “The word “consent” implies agreeing to sexual relations proposed by someone else.” The capacity to consent to sexual relations for the purposes of the criminal law is concerned with the understanding of the complainant (who I have been referring to as P) about matters which are relevant to their autonomy, not those which are relevant to the autonomy of the alleged perpetrator. I do not consider that the criminal law requires that a complainant understands that their assailant must have the capacity to consent and in fact consents before the complainant can be considered to have capacity. I do not discern any difference in this regard between the civil and criminal law.

[…]

114. [Turning to the position where P is an accused, rather than complainant, and rejecting a submission that the Court of Appeal’s approach required more of a P than an accused under the SOA 2003, who would be not guilty of certain offence if they ‘reasonably believed’ that the other person was consenting] I consider this to be a distinction without a difference. An accused may have a reasonable belief that the complainant was consenting, but the accused in that situation will understand that the complainant was able to and must consent throughout and the accused has to use or weigh that information as part of the process of forming a reasonable belief. If P is able to understand 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, and if P is able to use or weigh that information as part of the process of making the decision as to whether to engage in sexual relations, then P is in the same position as an accused in the criminal context. I am therefore not persuaded that there are any unnecessary differences in this regard as between the civil or criminal law (which in any event need not be identical).

115. [if P is accused of an offence under ss.30-33 SOA 2003], P’s knowledge of the complainant being unable to refuse includes the reasonably foreseeable consequences of what is being done but it does not include a requirement that the complainant should have any understanding of the fact that the alleged perpetrator (that is, the other person) must have the ability to consent to the sexual activity and must in fact consent before and throughout the sexual activity. Again, I do not discern any difference in this regard between the civil and criminal law.

Lord Stephens gave short shrift to the arguments based upon Article 8 ECHR, identifying that it was not clear whether the Official Solicitor on JB’s behalf was “advancing an argument that JB’s article 8 ECHR rights have been breached (and, if so, by whom) or an argument as to how the MCA should be construed compatibly with article 8. Neither argument was advanced at first instance or in the Court of Appeal, so the appellant requires permission to bring them” (paragraph 117).   He did not consider that there was any merit in the compatibility argument and that permission should be refused:

118. […] I have explained, information relevant to the decision under the MCA takes into account not only the interests of P but also the interests of others and of the public. Furthermore, section 1(3) MCA provides 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 without success which ensures that the interference with article 8, if it is engaged, is proportionate. I consider that the operation of the MCA is compatible with article 8.

As to the question of whether there was a breach of Article 8 ECHR on the facts, Lord Stephens observed that there was considerable force in the respondent’s contention that there had been no factual findings which could ground such an assertion, nor did the court have the complete factual picture, for instance as to the steps taken to support him to gain capacity to make decisions in relation to sexual relations (in circumstances where the Court of Appeal had only made an interim declaration that there was reason to believe that he lacked capacity to decide whether to engage in sexual relations); and (2) the steps being taken to secure his ability to develop safe relationships with women, including the ongoing education being provided by a clinical psychologist:

119. […] But in any event, any interference would be in accordance with the MCA, and therefore in accordance with the law. Furthermore, a legitimate aim of any interference with JB’s article 8 rights, if that article is engaged, would be the protection of the health, both mental and physical, of both JB and of others. Other legitimate aims would be the protection of the rights and freedom of others as well as the prevention of disorder or crime. There have been no factual findings in relation to the proportionality of any interference in pursuit of those legitimate aims. For all these reasons I would refuse permission to raise this argument.

Lord Stephens gave equally short shrift to the argument based upon Article 12 CRPD that a separate standard or test for capacity was being created for people with disabilities, and that this would be incompatible with Article 12(2):

There is no separate standard or test for persons with disabilities. 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. This ground of appeal therefore fails at the first hurdle, but in any event 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.

Disposal of the appeal

At paragraph 121, Lord Stephens reiterated that:

The evaluation of JB’s capacity to make a decision for himself is in relation to “the matter” of his “engaging in” sexual relations. Information relevant to that decision 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. Under section 3(1)(a) MCA JB should be able to understand that information and under section 3(1)(c) MCA JB he should be able to use or to weigh it as part of the decision-making process.

Applying the test in section 2(1) MCA on the available information, Lord Stephens considered that JB was unable to make a decision for himself in relation to that matter because of an autistic impairment of his mind.  Importantly, however, Lord Stephens agreed with the Court of Appeal that, “because this information was not fully considered or analysed during the hearings before the judge, it would not be appropriate to make a final declaration that JB does not have capacity to make a decision to engage in sexual relations. The right course is therefore to remit the matter to the judge for reconsideration in the light of this judgment.”

Comment

It is very important to preface this comment by making clear, as did Lord Stephens, that this is a situation where JB’s individual case is to be remitted to the first instance judge; this comment is therefore not about his own circumstances.

The Supreme Court has previously considered the purpose of the best interests test, how that test is a choice between available options, what deprivation of liberty means for both adults and adolescents with impaired decision-making capacity, and when cases involving medical treatment have to come to court.   Given its foundational importance, it is perhaps surprising that it took 14 years for the question of the proper approach to take to decision-making capacity to reach the Supreme Court.   It is perhaps not entirely surprising, though, that it has done so in the context of sexual relations, because this has proven one of the most difficult and contentious areas of the law in this area.   That the case involved a person who actively wishes to initiate sexual activity means – importantly – that the Supreme Court was faced with the issue in almost its starkest form for two reasons.

The first is that, unlike many areas where capacity is in play, those involved are not considering whether a person can consent to something being proposed by others (often professionals).  Rather, the question is whether and on what basis the law should respond where the person is an active agent – who may by seeking to exercise their agency harm others.  Put another way, and as faced head-on by the Supreme Court, securing one person’s autonomy may come at a cost for others.

The second reason is asking questions about capacity in this context makes profoundly clear that there is a normative element.  The courts have been clear for many years that identification of information is important in terms of its consequences – for instance, that it is necessary to focus upon the salient information, because requiring “too much” information will make it more likely that the person in question will not be able to process it.   This decision highlights that the identification of information is important for another reason – it represents choices as to the information that should be considered relevant.   In JB’s case, that gave rise to the important question of what sexual consent should mean for everyone.  In this regard, it is perhaps striking that the Supreme Court was entirely content, and indeed perceived it as a fundamental part of its role, metaphorically to roll up its sleeves and descend into the arena of identifying the information relevant to decision-making in relation to sex, when only a couple of months previously the Court of Appeal had firmly chastised the Divisional Court in the Tavistock case for having done exactly the same thing in relation to decision-making by children in respect of puberty-blockers.

The court is perhaps also notable for the swift dismissal of arguments relating to the CRPD, following the line previously taken by the current constitution of the Supreme Court.   However, the case will (or should) give rise to reflection by those concerned with the CRPD for at least two reasons:

  1. The implications of Lord Stephens’ conclusion that requiring the same information to be understood by all is non-discriminatory.
  2. In relation to the interaction between the MCA (and other forms of capacity legislation) and the criminal law. Whilst there has been much debate about the validity of the concept of mental capacity in the civil context (a debate before, but which clearly did not attract the Supreme Court), the workings out of the ‘hard-line’ CRPD approach in the criminal sphere are still much less developed.   This case would provide a good test to bring home sometimes abstract arguments about these issues.

At a practical level, the case has the following implications:

  1. Forms which are based upon the ‘two-stage’ test contained in the Code of Practice should be reviewed, so that they direct the assessor to consider the person’s functional ability first (see further our guidance note).
  2. Determinations made in respect of those with impaired decision-making ability in the sexual context should be revisited to identify whether they remain valid. Particular attention will be required in any situation where: (1) decision has been made on a “generalised forward-looking evaluation” basis that the person lacks capacity to make decisions about engaging in sexual relations; but (2) there is proper reason to consider that in the specific context of the person’s life a different approach needs to be taken.
  3. Although contact was not specifically addressed by the Supreme Court, it is likely that the approach now taken may mean there is a closer alignment between contact and sex. In other words, it may well be possible for there to be a greater alignment between the approach to a person’s ability to make decisions about sexual relations with a specific identified person, and their ability to make decisions about contact with that person.   That having been said, there may well still be cases where the TZ approach is still required: i.e. that, on a ‘generalised forward-looking basis’ the person has capacity to make decisions about engaging in sexual relations, but they lack capacity to make decisions about contact, such that best interests decisions need to be undertaken to enable a proper calibration of risk (as this case makes clear, that risk being be to or by the person).  
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