Discussion of the concept of consenting to (or engaging in) sexual activity
We deliver lots of training on “Sexual Activity and the Mental Capacity Act” – precisely because this is such a difficult area for professionals to deal with.
When assessing capacity, for most decisions it’s possible either to observe the person (“P”) carrying out the task in question, or perhaps to ask other people for their observations of the person carrying out that task, or to simulate the task in some way.
For example, if the issue is whether P has the capacity to manage their own money, it may be possible/appropriate to:
- Observe P buying some groceries in a shop, and/or
- Ask other people how P goes about buying groceries in a shop, and/or
- Use some real money and ask P to explain or demonstrate how they would go about buying groceries in a shop
… as well, of course, as talking to P about their understanding of money, change, roughly how much different items might cost etc etc.
But how do you apply these methods to the issue of whether P has the capacity to consent to sex?
There have been lots of cases in which the Court of Protection has tried to wrestle with this problem, and give guidance to health & social care professionals. We refer to several of these during our own training sessions, and of course as new cases come along we refer to these too. Sometimes a new case refines or even contradicts an earlier case.
The Court of Appeal has just published its decision in the dispute between JB and a local authority. The reference is: “In the Matter of the Mental Capacity Act 2005 and in the Matter of JB (Capacity: Sexual Relations”), Neutral Citation Number:  EWCA Civ 735. Click here to read the full case.
This is an appeal against a decision made by the Court of Protection in 2019, the reference of that case being JB (Capacity: Consent To Sexual Relations And Contact With Others)  EWCOP 39. Click here to read about that case.
The original Court of Protection case
JB is a man in his 30s with a complex diagnosis of autistic spectrum disorder and impaired cognition. He wished to find a girlfriend for a relationship, which would include a sexual relationship. The local authority had concerns that JB did not understand that a sexual relationship must be consensual on both sides.
In other words, they argued, it is not sufficient for JB to understand that he can consent, or refuse to consent, to sexual activity. JB must also understand that his partner can consent, or refuse to consent, to sexual activity. And because JB did not understand about the need for the partner to consent/refuse, that must mean that JB lacks the capacity to consent to sex under the meaning of the Mental Capacity Act 2005.
The Official Solicitor, on behalf of JB, argued that this was to set the bar too high, and that it would be an unfair discrimination against people like P who have impaired capacity.
The consequence of this issue, of course, is serious. An individual who is assessed as lacking the capacity to consent to sex cannot have sex, because nobody can consent on their behalf. Anyone having sex with a person who is deemed to lack capacity to consent to sex would be breaking the law.
The Judge in the Court of Protection accepted JB’s argument. Therefore the fact that JB does not understand the need for his partner to consent to sex should not be used as evidence that he himself lacks the capacity to consent to sex.
The Court of Appeal case
The Court of Appeal took a different approach by reframing the questions.
The Court made a distinction between “consenting to sexual relations” and “choosing whether or not to engage in sexual relations” The Court said these are two separate issues, albeit closely related. Most Court of Protection cases have focussed on “consenting to sexual relations”. But this implies that the other person is initiating sex, and that the P is either agreeing with or disagreeing with that decision. It does not take account of what happens when P is the one initiating the sex. That part is just as important as the other part, and it follows that anyone wanting to have sex with another person must take into account the importance of both parties consenting at the start, and continuing to consent all the way through the activity.
The Judge summed up as follows:
- […],when considering whether, as a result of an impairment of, or disturbance in the functioning of, the mind or brain, a person is 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 may include the following:
(1) the sexual nature and character of the act of sexual intercourse, including the mechanics of the act;
(2) 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;
(3) the fact that P can say yes or no to having sexual relations and is able to decide whether to give or withhold consent;
(4) that a reasonably foreseeable consequence of sexual intercourse between a man and woman is that the woman will become pregnant;
(5) that there are health risks involved, particularly the acquisition of sexually transmitted and transmissible infections, and that the risk of sexually transmitted infection can be reduced by the taking of precautions such as the use of a condom.
The Judge emphasised he was not saying that all 5 issues MUST be taken into account in EVERY capacity assessment concerning sex. Instead he said they MAY be taken into account, where they do apply to the specific case.
The Judge also emphasised the dilemma that faces all health and social care professionals every day between on the one hand promoting P’s personal autonomy, and on the other protecting P from harm. This case is a classic example of that ongoing struggle.
The decision of the Court of Appeal, therefore, was to set aside the decision of the Court of Protection (which had been that JB has the capacity to consent to sex) and to return the case to the Court of Protection for consideration of whether JB has the capacity to engage in sexual activity.
Other articles and discussions about this case
- Alex Ruck Keene of 39 Essex Chambers has written a very full summary and discussion of this case here.
- There is a 30 minute video discussion of the case here between Victoria Butler-Cole and Nicola Kohn, also of 39 Essex Chambers
- Lorraine Currie from Shropshire County Council has written an equally thought-provoking piece here for Community Care.
We regularly deliver “Sexual Activity and the Mental Capacity Act” training all over England and Wales. Usually face-to-face, but also virtually during the lockdown. Future sessions will of course explore this judgement, and the others referred to in the Court of Appeal, in much more detail. We make it directly relevant to the participants’ own situations. If you want to discuss this training with us please do call or email today.