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Capacity, consent and sexual relations in the Court of Protection

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The case of A Local Authority v JB (by his litigation friend, the Official Solicitor) [2021] UKSC 52, concerned JB a 38-year-old man with a diagnosis of autistic spectrum disorder with impaired cognition, who wanted to pursue his desire to have a girlfriend and a sexual relationship. The issue to be considered by the Court of Protection was whether he has mental capacity to decide to engage in sexual relations.

JB lives in supported accommodation and has a comprehensive care plan which imposes significant limits on his independence, including his access to the community and contact with other people. He is always supervised by a carer by virtue of his needs for care and support. His care package therefore presents obvious barriers to his ability to find a girlfriend and have a sexual relationship.

If someone lacks capacity to make this decision, they cannot engage in sexual relations as this a decision excluded from a best interests decision being made on their behalf by virtue of s27(1)(b) Mental Capacity Act 2005.

Alternatively, if someone does have capacity to decide to engage in sexual relations but has needs for care and support, they must be supported to facilitate their engagement in sexual activity to ensure compliance with Article 8 of the European Convention of Human Rights (the right to private and family life) - this often involves detailed support plans being prepared by local authorities detailing how carers will facilitate and support a vulnerable adult to have sex whilst ensuring that their care needs are being met.

In this case, the Court of Protection initially held that JB does have capacity to consent to sexual relations, as he generally understood the mechanics of the act of intercourse and the health risks involved (pregnancy and sexually transmitted diseases). The court decided that in order to have capacity to consent to sexual relations, the fact that the other person must also consent is not part of the information relevant to the decision that a person must be able to understand, retain, use and weigh, and communicate in order to make the decision. JB could not understand that fact, however, it was decided that this did not mean he lacked capacity to consent.

The local authority appealed this decision to the Court of Appeal. The Court of Appeal held that in order to have capacity under the MCA 2005 to engage in sex, a person does in fact need to understand that their partner must have the capacity to consent to sexual activity and must in fact provide consent before and during the sexual activity. The Court of Appeal also re-framed the test from ‘capacity to consent to sexual relations’ to ‘capacity to engage in sexual relations’.

JB’s litigation friend, the official solicitor, appealed this decision to the Supreme Court. However, the Supreme Court agreed with the Court of Appeal, determining that the consent of the other person is relevant information to the decision made by the court. The person needs to be able to understand 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.

The evidence before the Supreme Court highlighted that JB may pose a possible risk to others that he may wish to engage in sexual activities with, as he had demonstrated that he did not understand the need for the other person engaging in sexual relations to consent throughout the activity, only before.

More education was to be given to JB to see whether or not he can be supported sufficiently to lead to him gaining capacity; whether a period of education can assist him to understand the need for the other person to consent before and throughout any sexual activity.

It is important that if a person wishes to engage in sexual relations and there are concerns in respect of their capacity to do so, that you obtain advice from a specialist solicitor. Our Court of Protection team at Stephensons have expertise in dealing with these cases and can provide clear advice in respect of this complex area of law. Please do not hesitate to contact us for advice on 01616 966 229.