A Local Authority v JB  EWCA Civ 735
- Supreme Court grant PTA in JB case — On 13/4/21 Lords Hodge and Hamblin and Lady Arden granted permission to appeal against the Court of Appeal decision in A Local Authority v JB  EWCA Civ 735 (capacity and sex). Supreme Court reference: UKSC 2020/0133.
The WLR Daily case summaries
 WLR (D) 336
Court of Appeal
A Local Authority v JB
2020 March 3; June 11
Sir Andrew McFarlane P, Singh, Baker LJJ
Mental disorder— Capacity— Consent to sexual relations— Vulnerable adult with cognitive disability— Vulnerable adult wishing to initiate sexual relations with women— Whether having capacity to engage in sexual relations— Whether “information relevant to the decision” requiring understanding of valid and continuing consent— Mental Capacity Act 2005 (c 9), s 3(1)
The local authority sought a determination as to whether a man, who suffered from autism and impaired cognition, had the capacity to consent to sexual relations. At the first stage of a split hearing the court considered whether the “information relevant to the decision” in section 3(1) of the Mental Capacity Act 2005 included an understanding that the other person engaged in the sexual activity had to be able to, and did in fact, consent to such activity. Having concluded that the “information relevant” did not include the understanding whether that other person was giving valid and continuing consent, since that was to confuse the nature or character of a sexual act with its lawfulness and to confuse the concepts of having capacity to consent to sexual relations and exercising that capacity, the judge made a declaration that the man had capacity to consent to sexual relations. The local authority appealed, submitting, inter alia, that the nature and character of the sexual act included the fundamental characteristic that it was a mutual act which required the consent of both participating parties, that the ability to understand, retain, use and weigh up the other person’s factual consent was mandated by the plain words of section 3(4) since it was a reasonably foreseeable consequence of having sexual relations without regard to whether the other person was consenting that harm would result to either or both of the participants, and that the judge had been wrong to find that including an understanding of the other person's valid and continuing consent as part of the relevant information would raise the bar too high.
On the appeal—
Held, appeal allowed and declaration set aside. (1) The analysis of capacity with regard to sexual relations in the case law had hitherto been framed almost exclusively in terms of the capacity to consent to sexual relations. But giving consent to sexual relations was only part of the decision-making process; the fundamental decision was whether to engage in sexual relations. Since here it was the man who wished to initiate sexual relations it was his capacity to decide to engage in sexual relations which was in issue, which was how the question of capacity with regard to sexual relations should normally be assessed. Since the fundamental decision was whether to engage in sexual relations, it was clear that the “information relevant to the decision” inevitably included the fact that any person with whom he engaged in sexual activity had to be able to consent to such activity and did in fact consent to it. A person who did not understand that sexual relations had only to take place when, and only for as long as, the other person was consenting was unable to understand a fundamental part of the information relevant to the decision. Including an understanding of that consensuality in information relevant to the decision did not amount to an unwarranted infringement of the man’s personal autonomy or of his rights nor, in so far as it was a restriction, could it be described as discriminatory because it was a restriction which applied to everybody, regardless of capacity. It was unnecessary and inappropriate to consider whether a full and complete understanding of consent in terms recognised by the criminal law was an essential component of capacity. What was needed was an understanding that one should only have sex with someone who was able to consent and who gave and maintained consent throughout. Since the report of the expert instructed provided evidence that the man did not have that understanding, it followed that the declaration of capacity had to be set aside and the matter remitted to the judge to reconsider whether he had the capacity to decide whether to engage in sexual relations, and an interim declaration would be made that there was reason to believe that he lacked that capacity (paras 92, 93, 98, 106, 108, 110, 111, 112).
(2) In summary, when considering whether, as a result of an impairment of, or disturbance in the functioning of, the mind or brain, a person was 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 might include one or more of the following: (i) the sexual nature and character of the act of sexual intercourse, including the mechanics of the act; (ii) 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; (iii) the fact that a person could say yes or no to having sexual relations and was able to decide whether to give or withhold consent; (iv) that a reasonably foreseeable consequence of sexual intercourse between a man and woman was that the woman would become pregnant; and (v) that there were health risks involved, particularly the acquisition of sexually transmitted and transmissible infections, and that the risk of sexually transmitted infection could be reduced by the taking of precautions such as the use of a condom (para 100).
Dicta of McFarlane LJ in York City Council v CB, para 35, CA applied.
Dicta of Munby J in X City Council v MB  2 FLR 968Not on Bailii!, paras 65, 84, dicta of Munby J in In re MMB, paras 67, 87, dicta of Hedley J in A Local Authority v H  1 FCR 590, paras 21–22, 25, Ct of Protection, A Local Authority v TZ M, Ct of Protection, Tower Hamlets London Borough Council v TB M, Ct of Protection, In re M (An Adult) (Capacity: Consent to Sexual Relations) B, CA and B v A Local Authority B, CA considered.
Dicta of Mostyn J in D Borough Council v BB, para 35, Ct of Protection and dicta of Parker J in Southwark London Borough Council v KA M at – disapproved.
Decision of Roberts JM; B, Ct of Protection reversed.
Vikram Sachdeva QC (instructed by Solicitor, A Local Authority) for the local authority.
Parishil Patel QC and Ian Brownhill (instructed by Enable Law) for JB, by his litigation friend, the Official Solicitor.
Jeanette Burn, Barrister
Mental Capacity Act 2005 (c 9), s3(1)