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] https://www.supremecourt.uk/cases/uksc-2020-0133.html (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