The Court of Appeal in A Local Authority v JB  EWCA Civ 735 has made clear that we have been asking the wrong question in relation to sexual relations. The issue arose in the context of proceedings concerning a 36-year-old man with a complex diagnosis of autistic spectrum disorder combined with impaired cognition. The question before the judge at first instance, and in written submissions presented to this court before the hearing, was couched in different terms, namely whether a person, in order have capacity to consent to such relations, must understand that the other person must consent. The first instance judge, Roberts J, had held the fact that the man in question, JB, could not understand that fact, did not mean that he lacked capacity to consent.
The local authority appealed, and sought to persuade the Court of Appeal that Roberts J had been wrong to exclude this information from the information relevant to the test. The Court of Appeal, however, took a different course, steered by Baker LJ (giving the sole judgment of the court).
Baker LJ started by observing that the issue – of great importance to people with learning disabilities or acquired disorders of the brain or mind – required the court to balance three fundamental principles of public interest.
4. The first is the principle of autonomy. This principle lies the heart of the Mental Capacity Act 2005 and the case law under that Act. It underpins the purpose of the UN Convention on the Rights of Persons with Disabilities 2006, as defined in article 1:
“to promote, protect and ensure the full and equal enjoyment of all human rights and fundamental freedoms by all persons with disabilities, and to promote respect for their inherent dignity.”
5. The second is the principle that vulnerable people in society must be protected. As this court observed in B v A Local Authority  EWCA Civ 913 (at para 35):
“ … there is a need to protect individuals and safeguard their interests where their individual qualities or situation place them in a particularly vulnerable situation.”
Striking a balance between the first and second principles is often the most important aspect of decision-making in the Court of Protection. The Mental Capacity Act Code of Practice expresses this in simple terms (at para 2.4):
“It is important to balance people’s right to make a decision with their right to safety and protection when they can’t make decisions to protect themselves.”
6. There is, however, a third principle that arises in this case. The Mental Capacity Act and the Court of Protection do not exist in a vacuum. They are part of a wider system of law and justice. Sexual relations between two people can only take place with the full and ongoing consent of both parties. This principle has acquired greater recognition in recent years within society at large and within the justice system. The greater recognition has occurred principally in the criminal and family courts, but it must extend across the whole justice system. The Court of Protection is concerned first and foremost with the individual who is the subject of proceedings, “P”. But as part of the wider system for the administration of justice, it must adhere to general principles of law. Furthermore, as a public authority, the Court of Protection has an obligation under s.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 Sch.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.
To resolve the appeal, Baker LJ had to consider both the Act and the development of the case-law. As he noted, there is only reference to sexual relations in the MCA, namely s.27(1) which provides that nothing in the Act permits a decision to be made on behalf of a person with regard to a number of matters listed in the subsection including “consenting to have sexual relations.” He then conducted a very extensive review of the “somewhat confusing” (paragraph 24) case-law, which will no doubt be pored over by those who have been involved (whether directly or indirectly) in the messy evolution of how the courts have grappled with capacity and sexual relations.
Having set out the rival submissions of the local authority as appellant and the Official Solicitor on behalf of JB, Baker LJ then turned (at paragraph 91) to his analysis of the position. He started by recalling the decision-specificity of the test under the MCA 2005 which means that the “‘information relevant to the decision” depends first and foremost on the decision in question” (paragraph 91). As he then noted:
92. The analysis of capacity with regard to sexual relations in the case law has hitherto been framed almost exclusively in terms of the capacity to consent to sexual relations. But as this case illustrates, giving consent to sexual relations is only part of the decision-making process. The fundamental decision is whether to engage in sexual relations. The focus on the capacity to consent derives, in part, from the judgments delivered by Munby J prior to the implementation of the MCA, which unsurprisingly influenced the analysis in subsequent cases after the Act came into force. In addition, as pointed out above, the only reference to sexual relations in the MCA is in s.27 where the list of “excluded decisions” which cannot be made on behalf of a person lacking capacity includes “consenting to have sexual relations”. But the list in s.27 does not purport to be a comprehensive list of the decisions in respect of which issues as to capacity will arise.
As Baker LJ noted, the earliest caselaw decided by Munby J had framed the analysis by reference both by reference to the question whether someone has the capacity to consent to sexual relations and also by reference to the question whether someone has the ability to choose whether or not to engage in sexual activity. However, in subsequent cases, the focus had been on the first question to the exclusion of the second. As Baker LJ noted:
92. […] The word “consent” implies agreeing to sexual relations proposed by someone else. But in the present case, it is JB who wishes to initiate sexual relations with women. The capacity in issue in the present case is therefore JB’s capacity to decide to engage in sexual relations.
Importantly, Baker LJ did not just limit himself to JB’s specific situation, but rather emphasised that “[i]n my judgment, this is how the question of capacity with regard to sexual relations should normally be assessed in most cases” (paragraph 92).
As Baker LJ then held:
94. When the “decision” is expressed in those terms, it becomes clear 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. Sexual relations between human beings are mutually consensual. It is one of the many features that makes us unique. A person who does not understand that sexual relations must only take place when, and only for as long as, the other person is consenting is unable to understand a fundamental part of the information relevant to the decision whether or not to engage in such relations.
The Official Solicitor had argued that, even if the decision was expressed in those terms, the relevant information should not include an understanding of the consensuality of sexual relations. However, Baker LJ held that none of the reasons stood up to scrutiny:
95. […] The inclusion of an understanding of the other person’s consent as part of the relevant information does not, as he asserted, recast the test as “person-specific” but, rather, ensures that the information is firmly anchored to the decision in question, as required by statute and confirmed by this court in the York case. I accept that it is important for the test for capacity with regard to sexual relations to be as simple and straightforward as possible but that cannot justify excluding information which is manifestly relevant to the decision. And if the consensuality of sexual relations is part of the relevant information, it plainly relates to capacity itself rather than the exercise of capacity.
96. Mr Patel understandably relies on earlier judicial observations that sexual activity, and decisions made about such activity, are “largely visceral rather than cerebral, owing more to instinct and emotion than to analysis”. But it has never been suggested that decisions are exclusively visceral or instinctive. It is, of course, true that sexual desire is emotional rather than intellectual, but for human beings the decision whether or not to engage in sexual relations obviously includes a cerebral element. It involves thought as well as instinct. And amongst the matters which every person engaging in sexual relations must think about is whether the other person is consenting.
97. Mr Patel also relies on the point made in earlier judgments that the focus of the MCA is different from that of the criminal law. It would, however, be wrong and unprincipled to exclude an understanding of the consensuality of sexual relations from the relevant information on the grounds that non-consensual sexual acts should be dealt with by the criminal justice system. As illustrated by the background history to this application, which includes an incident of alleged sexual abuse in respect of which the police decided to take no action, the criminal justice system does not necessarily deal with such cases and there may well be good reason for this, because the police and the prosecution authorities have a discretion whether or not to pursue every potentially available criminal charge and exercise that discretion in the public interest. But even if it could be guaranteed that such incidents were dealt with by the criminal courts, to leave such matters to the criminal justice system would be an abdication of the fundamental responsibilities of the Court of Protection, which include the duty to protect P from harm.
Baker LJ returned to the importance of striking a balance between the principle that vulnerable people in society must be protected and the principle of autonomy is often the most important aspect of decision-making in the Court of Protection. However, he did:
98. […] not accept the argument that including an understanding of the consensuality of sexual relations as part of the information relevant to the decision about the capacity regarding sexual relations amounts to an unwarranted infringement of JB’s personal autonomy or of his rights. Insofar as it is a restriction of his autonomy and his rights, it cannot be described as discriminatory because it is a restriction which applies to everybody, regardless of capacity. As social beings, we all accept restrictions on our autonomy that are necessary for the protection of others. No man is an island. This principle is well recognised in the European Convention on Human Rights. For example, the rights in Article 8 are not absolute and must be balanced against other interests, including the rights of others. 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. As I said at the outset of this judgment, the Mental Capacity Act and the Court of Protection do not exist in a vacuum. They are part of a system of law and justice in which it is recognised that sexual relations between two people can only take place with the full and ongoing consent of both parties.
Baker LJ recognised that by recasting the decision as the decision to engage in sexual relations, and by including an understanding of the consensuality of sexual relations as part of the information relevant to the decision, the Court of Appeal was “moving on from the previous case-law” (paragraph 99). However, he made clear:
99. […] But that is because the issues arising in this case and the arguments presented to us have not been considered by this Court before. In my judgment, however, it is not inconsistent with the earlier authorities of this Court. As recognised by this Court in B v A Local Authority, “what comprises relevant information for determining an individual’s capacity to consent to sexual relations has developed and become more comprehensive over time.” That development has continued in this case. The Court in IM v LM stressed that “the notional process of using and weighing information attributed to the protected person should not involve a refined analysis of the sort which does not typically inform the decision to consent to sexual relations made by a person of full capacity”. But as already stated, the information which a capacitous individual must take into account in deciding whether to engage in sexual relations includes whether or not the other person is consenting. My decision in this case is therefore not inconsistent with earlier decisions of this Court. As for the decisions at first instance, I respectfully disagree with the contrary observations of Parker J in London Borough of Southwark v KA and Mostyn J in D Borough Council v B.
In summary, therefore:
100. […], when considering whether, as a result of an impairment of, or disturbance in the functioning of, the mind or brain, a person is unable to understand, retain, or use or weigh information relevant to a decision whether to engage in sexual relations, the information relevant to the decision may include the following:
(1) the sexual nature and character of the act of sexual intercourse, including the mechanics of the act;
(2) 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;
(3) the fact that P can say yes or no to having sexual relations and is able to decide whether to give or withhold consent;
(4) that a reasonably foreseeable consequence of sexual intercourse between a man and woman is that the woman will become pregnant;
(5) that there are health risks involved, particularly the acquisition of sexually transmitted and transmissible infections, and that the risk of sexually transmitted infection can be reduced by the taking of precautions such as the use of a condom.
Baker LJ noted that there remained the question whether the information relevant to the decision whether to engage in sexual relations must always include all of the matters identified in the previous paragraph. Whilst he recognised that this was a matter of considerable importance, it did not arise on the appeal before the court, and the summary of the case-law that he had set out “illustrates that on several occasions judicial obiter dicta in this difficult area of the law have been initially followed by other judges, only to be rejected in later cases after hearing further argument. For that reason, it would be prudent for this Court to refrain from commenting until it has an opportunity to hear full argument on the point in a case where the issue arises on the appeal” (paragraph 103).
On the facts of the case before the court, and whilst commending the judge’s “strong commitment to the principle of autonomy, and the right of disabled people to enjoy life’s experiences to the full,” Baker LJ found “with considerable regret” that he had to part company from her:
106. First, I do not consider it appropriate to view these issues through “the prism of the criminal law”. In fairness to the judge, I think she was understandably led into this approach by dicta in previous reported cases and by submissions given to her by counsel, who in turn were influenced by the earlier cases. But in my view it is unnecessary and inappropriate to consider whether “a full and complete understanding of consent in terms recognised by the criminal law” (my emphasis) is an essential component of capacity to have sexual relations. What is needed, in my view, is an understanding that you should only have sex with someone who is able to consent and gives and maintains consent throughout. The protection given by such a requirement is not confined to the criminal legal consequences. It protects both participants from serious harm.
107. Secondly, although some capacitous people might struggle to articulate the precise terms of the criminal law in this regard, I do not agree that capacitous people have difficulty understanding that you should only have sex with someone who is able to consent and who gives and maintains consent. I respectfully disagree with the judge that this is “a refined or nuanced analysis which would not typically inform any decision to consent to such relations made by a fully capacitous individual”. Nor is it “a burden which a capacitous individual may not share and may well be unlikely to discharge”. It is something which any person engaging in sexual relations has to consider at all times. This is not altered by the fact that some capacitous people choose to ignore the absence of the other person’s consent and proceed with sexual activity anyway (thus probably committing a criminal offence such as sexual assault or even rape).
108. Thirdly, I do not think it right to reject the requirement of an understanding as to the necessity of mutual consent to sex on the grounds that there are “mistakes which all human beings can, and do, making the course of a lifetime”. There may be occasions, I suppose, where someone genuinely makes a mistake about whether their sexual partner is giving or maintaining consent. But that circumstance, if it ever arises, is very different from the situation where one person does not understand that the other person has to give and maintain consent.
The Court of Appeal therefore set aside the declaration that JB had capacity to consent to sexual relations. However, whilst it could have made its own declaration, Baker LJ held that it was wrong to do on the specific facts of the case, and, in particular, the way in which the issue had been analysed before Roberts J. He therefore held that the right course was to remit it to her to reconsider in light of the judgment and such further evidence as she would wish to seek. The court therefore remitted the case, making an interim declaration under s.48 of the MCA that there is reason to believe that JB lacks capacity to decide whether to engage in sexual relations.
This is an extremely significant judgment, and it is very likely that the matter will not stop there (and is likely to be considered together with the case of Re B). By both recasting the question in JB’s case and suggesting that this is the way in which capacity with regard to sexual relations should normally be assessed in most cases, the Court of Appeal has essentially pressed the reset button on what has become an intensely tangled – and frankly unsatisfactory – series of cases. It responds to the fact that individuals with impaired decision-making capacity are not always (as some of the previous cases could be read as suggesting) purely passive recipients of sexual activity initiated by others, but can also be sexual beings wishing to express themselves by initiating sexual activity.
One very important consequence of this decision is that – in principle – it opens the way for a court to take the view that it is not bound by s.27 MCA 2005, which provides that nothing in the MCA permits a decision to be made on behalf of a person to consent to having sexual relations. Would it be possible to say a court (and I very specifically say court here, as it would be very challenging for anyone to take steps here without judicial imprimatur) can make a best interests decision behalf of someone to engage in sexual relations? And, if so, would this be the way in which to resolve the pragmatic but (to purists, problematic) compromise hammered out in the TZ cases (decided by Baker himself) to the situation where the person is undoubtedly at risk in some sexual encounters, but not in others? That compromises is to find that the person has capacity to consent to sexual relations but does not have capacity to make decisions as to contact, thereby enabling best interests decisions to be made in relation to contact where it is clear that the contact is for purposes of sex.
Another important consequence is that it clears the way to resolving what was otherwise a very odd potential outcome. By framing the test by reference to consent, it would be possible to find that that a person could not consent solely because they did not understand that their partner needed to consent. But – as we pointed out in our note upon the first instance decision – that could mean that a partner who freely initiated sexual activity with them could face criminal consequences even if there was no suggestion that the partner had any impairment in their decision-making. The interaction between the MCA and the Sexual Offences Act 2003 remains complex and difficult, but this judgment may at least have helped clear the path of some of the more tangled undergrowth.
For more on this, see
- The conversation recorded between my colleagues Victoria Butler-Cole QC and Nicola Kohn;
- The article in Community Care by Lorraine Currie, acting Principal Social Worker and professional MCA lead at Shropshire County Council
 Which I cannot help but note did question whether the right question was being asked at first instance.