Sexual Relations, Capacity, and Consent: The Supreme Court’s Ruling

Sexual Relations, Capacity, and Consent: The Supreme Court’s Ruling

On 24th November 2021, the Supreme Court handed-down its judgment in the case of A Local Authority (Respondent) v JB (by his Litigation Friend, the Official Solicitor) (Appellant).[1]

JB, the subject of proceedings, was at the time of the judgment a 38-year old man who had been living in a supported residential placement since 2014. He was formally assessed in 2011 as having an Autistic Spectrum Disorder, namely Asperger’s syndrome. Proceedings were commenced in the Court of Protection by the Respondent Local Authority, seeking declarations as to JB’s capacity in various matters.

The issue to be determined by the Supreme Court was ‘To have capacity to decide to have sexual relations with another person, does a person need to understand 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?’[2]

The Supreme Court answered that question in the affirmative, dismissing the appeal. The judgment represents a confirmation of a development in case law, made when the matter was before the Court of Appeal. At first instance in the Court of Protection, the relevant decision had been cast as ‘…capacity to consent to sexual relations’.[3] The Court of Appeal re-cast this decision as ‘capacity to… engage in sexual relations’.[4] The Supreme Court accepted this re-casting as embracing both ‘…P’s capacity to consent to sexual relations initiated by the other party, and … 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.’[5]

The Supreme Court therefore went on to hold that, in terms of JB, the evaluation of his capacity to make the decision in question was in the matter of his engaging in (rather than consenting to) sexual relations. Information relevant to such a decision (in reference to s.3 (4) Mental Capacity Act 2005) 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.

The Supreme Court did not make a final declaration as to JB’s capacity to make a decision to engage in sexual relations, considering that because relevant information was not fully considered or analysed during the hearings in the case, it was inappropriate to do so. The case will therefore be remitted for final declarations in light of the Supreme Court’s judgment.

[1] [2021] UKSC 52.

[2] (last accessed on 25/11/2021).

[3] [2019] EWCOP 39, per Roberts J, at paragraph 4.

[4] [2020] EWCA Civ 735, per Baker LJ, at paragraph 93.

[5] Supra, no. 1, at paragraph 90.


Written by Phillip Jones of Bison Solicitors

Liberty Protection Safeguards Scheme

Coronavirus, Contact, Liberty and Equality

Our Court of Protection Teams latest Human Rights Case - Coronavirus, Contact, Liberty and Equality.

This case is published here: -

Mr Justice Hayden, Vice President of the Court of Protection, yesterday, released his judgement on our application, which was brought to the High Court last week, in response to the Coronavirus pandemic. We asked that the court consider whether the blanket ban implemented by the care home is an infringement of our client’s Articles 5 and 8 European Convention on Human Rights (ECHR). Articles 14 and 15 ECHR were also discussed in considering derogation and duties under the Equality Act 2010, that being the duty to make reasonable adjustments. The application was brought by our client’s daughter in her capacity as litigation friend, on behalf of her 83 year old father who suffers with Alzheimer’s dementia and is profoundly deaf. Mr Justice Hayden has directed that care homes must ensure ‘effective communication’ with the family, and that care homes should use all creative options to achieve such effective communication. In this case, it was agreed that visits by the family should take place by way of them communicating with ‘P’ from outside of his bedroom window. At Bison Solicitors, we are passionate that during these unprecedented times that any unlawful infringements on a person’s Human Rights should be subject to challenge

Counsel was Alison Harvey of No5 Barristers' Chambers. The team from our CoP department was Stephanie OxleyKate Churchouse and Bethany Waldron.

Bison Solicitors, Aldershot

MM - Supreme Court Appeal 2018

Lawfulness of discharge conditions for mental health patients to go to the Supreme Court

The Supreme Court has granted permission to appeal in the case of The Secretary of State for Justice v MM [2017] EWCA Civ 194 This is the latest case in a series of decisions about whether detained mental health patients can be subject to conditions on discharge where the cumulative effect of the conditions amounts to a deprivation of liberty.

In March 2017 the Court of  Appeal ruled that imposing conditions which deprived a patient of his or her liberty as part of a community discharge was a breach of the patient’s human rights even though the patient had consented to the conditions and the discharge would have reduced the degree of restrictions on the patient.  That decision followed the earlier case of RB v Secretary of State for Justice [2012] 1 WLR 2043 where such conditions were held to be a breach of the patient’s human rights.

The RB and MM decisions have been hugely contentious amongst those advocating for the rights of mental health patients.  RB was not followed by Mr Justice Charles in Secretary of State for Justice v KC & Anor [2015] UKUT 0376 (AAC), who held that the First Tier Tribunal had jurisdiction to impose conditions on a conditional discharge that involve a deprivation of liberty and that a capacitated patient could give valid consent to such conditions.   The KC decision was not disapproved by the Court of Appeal in MM.

The Supreme Court will, in effect, be asked to resolve this difference of judicial views.

David Lock QC and David Blundell are instructed by Bison Solicitors on behalf of MM (but they did not act for MM in the Court of Appeal).  David Lock QC acted for KC in MM.