A landmark judgement was recently delivered at the Supreme Court that considered the concept of mental capacity and what "relevant information" a protected party should be able to understand, retain and use or weigh when assessing whether they have capacity to have sex.

The Supreme Court confirmed that for a person to have capacity to consent to sex, they need to understand that their sexual partner must also have the capacity to consent to sex. It also confirmed that a person needs to understand that their sexual partner must consent before and throughout the sexual activity.

Lord Justice Stephens, who gave the judgement on behalf of all the judges, said the case raised issues of “profound significance” for anyone suffering from an impairment or disturbance in the functioning of the mind or brain, potentially rendering them unable to make a decision for themselves in relation to them having sexual relationships. This is even if the other person has capacity to and consent to sexual relations.

He added that the Mental Capacity Act 2005 and the court of protection “do not exist in a vacuum but are part of a wider system of law and justice, and so must take into account the need to protect others”.

Summary of the case

JB is a 38-year-old single man who has long expressed a desire to be normal and have both a romantic and sexual relationship. He is registered blind, has severe epilepsy and Asperger's Syndrome. He lives in supportive living, funded by his local authority, with two other people. As part of his care plan, when accessing the community he is supported by at least one caregiver. He is not learning disabled but does suffer from impairment of the mind in part due to repeated epilepsy attacks.

Although he wants to have a girlfriend and engage in sexual relations, his previous behaviour towards women has led the respondent local authority to conclude that he cannot safely have unsupervised contact with them.

JB had been assessed as a moderate risk of sexual offending to women. In particular, the risk was of JB “sexually touching these women without consent. In terms of vulnerable women who do not have the capacity to consent to sexual relations, there is a risk of [JB] not recognising or respecting this fact, resulting in the potential for rape to occur.”

Background to the appeal

The local authority filed an application in the Court of Protection seeking declarations as to JB’s capacity in various areas, including his capacity to consent to sexual relations. It initially held that JB has capacity to consent to sexual relations. The expert evidence was that JB understands that mechanics of sexual acts and the risks of pregnancy and sexually transmitted disease, but his "understanding of consent is lacking".

The Court of Appeal disagreed. It held that, to have capacity to engage in sexual relations, a person needs to understand that their sexual partner must have the capacity to consent to the sexual activity and must in fact consent before and during the sexual activity.

JB then appealed to the Supreme Court who agreed with the Court of Appeal that JB did not understand the need for the other person to give and maintain consent because of a mental impairment, his autism spectrum disorder. 

What was the issue being decided?

In a summary paper from the Supreme Court, it said that the question in this case was about understanding capacity to consent to sexual activity.

Capacity is whether someone is able to make their own decisions about something. Consent is whether someone who has capacity to decide something freely agrees to do it.

Consenting to sexual activity must happen before the sexual activity starts and must continue throughout the sexual activity. In this case, the questions the Supreme Court had to consider are:

  • Does a person need to understand that their sexual partner must have the capacity to consent to sex?
  • Does the person also need to understand that their sexual partner must consent before the sexual activity starts and that their consent must continue throughout the sexual activity?

The court further allowed two intervenors on the basis of the widespread public importance of the issues. The first, Respond, is a charity supporting and enabling young people and adults with learning disabilities and autism. The second was the Centre for Women’s Justice, whose aim is to challenge male violence against women and girls.

What does this mean for care professionals?

It will now be important to strike a balance between autonomy, protecting vulnerable individuals, and the administration of justice.

Lauren Howe, a healthcare lawyer at Bevan Brittan, said assessors may wish to consider the following to reflect the additional factor for “relevant information” and how they frame the question in assessing capacity in relation to sexual relations:

  • Updating any guidance
  • Training for relevant staff
  • Whether it is appropriate, depending upon each individual circumstance, to review previous capacity assessments conducted in relation to sexual relations.

This judgment will undoubtedly have a profound impact upon the ability of a significant sector of society to have an intimate sexual relationship, according to Karen Jackson of Enable Law, the law firm who acted for JB.

She said: “The extent of the group of people that this will encompass is currently unclear given the comments suggesting that the relevant information could be tailored if not relevant to the individuals. However, there is little doubt that there will be a large number of men and women who are currently enjoying a sexual relationship or aspire to do so, who simply will not have this option in the future.

“What has yet to be developed is how this test is going to applied on the ground, whether a forensic risk assessment will be necessary to establish P’s capacity in this domain and what quality of evidence will be necessary.”

She added that of further significance will be the importance of the principle of s 1(3) “A person is not to be treated as unable to make a decision unless all practicable steps to help him to do so have been taken without success”.  In this context, when trying to obtain scarce psychological resources for those who may struggle and in particular those who struggle to understand social cues and like JB admit that they struggle.

“Both the Court of Appeal and the Supreme Court have been at pains to emphasise the balance between empowerment and protection but this does seem a significant step in expanding the role of the Court of Protection both in the lives of individuals and also within society as a whole,” she said.

Mary-Rachel McCabe, barrister at Doughty Street Chambers, who were instructed by Irwin Mitchell and acted for the first intervener, Respond, said that the judgment was not the radical rethink of the test for capacity to engage in sexual relations that Court of Protection practitioners may have been expecting (or hoping for).

She said: “The clarification of the wording of the Court of Appeal’s additional piece of relevant information i.e. that P must understand that the other person must have the ability to consent to the sexual activity, rather than must have the capacity to consent, is a fine distinction but a welcome one. Having said that, most of the expert reports assessing P’s capacity to engage in sex that I have seen since the Court of Appeal’s judgment have already been applying the test in that way, so how much difference this judgment will make ‘on the ground’ is perhaps questionable.

“The judgment certainly leaves the door open for some tailoring of relevant information depending on the facts of a particular case, though in my view removing P’s partner’s ability to consent and the fact that they must consent from the relevant information is unlikely to ever be permissible.”