The Supreme Court recently handed down a landmark ruling on capacity to consent to sexual relations. Anna Dannreuther analyses the judgment.
The question of whether an individual has capacity to have sexual relations may arise in the context of care planning or safeguarding investigations. Given that – by definition – sex without valid consent is rape (see section 1 Sexual Offences Act 2003 (“SOA”)),  it cannot be in a person’s best interests to have sex where they lack capacity to do so.
This is reflected in section 27 of the Mental Capacity Act 2005 (“MCA”), which states that consenting to sexual relations is an ‘excluded decision’ and no one can make this decision on behalf of a person lacking capacity (“P”). Where P lacks capacity to have sex, restrictions may be put in place in their care plan to prevent sexual activity from happening.
Of course, such restrictions are likely to be a serious intrusion into P’s private life, which is protected by Article 8 of the European Convention on Human Rights (“ECHR”), and incorporated into UK law by the Human Rights Act 1998 (“HRA”). Article 8 notably protects P’s right to establish relationships with other human beings (Niemitz v Germany (1993) 16 EHRR 97 at ), and States have a positive obligation to take measures to ensure P’s private life is respected, which may involve measures to secure P’s private life “in the sphere of the relations of individuals between themselves.” Botta v Italy (1998) 26 EHRR 241 at . While restrictions may be more easily justified under Article 8(2) in respect of a person lacking capacity, the case will be different where a person has the requisite capacity.
In the Court of Protection, cases concerning capacity to consent to sex commonly arise where P is sexually disinhibited or vulnerable to sexual exploitation. In such cases, it may be appropriate for restrictions on contact to be imposed to protect P from the supposed perpetrator, or to place restrictions in the care plan, such as discouraging P from going off with someone they have just met, escalating to alerting management, legal representatives and / or the police. (See A Local Authority v TZ  EWHC 973 (COP) at ).
A Local Authority v JB  UKSC 52
In A Local Authority v JB, JB, a 38-year-old male, often engaged in sexually inappropriate behaviour with women. On occasion, his behaviour lacked social inhibition and there was a concern that his behaviour, if unrestrained, may result in his exposure to the criminal justice system, and risk to potentially vulnerable females. There was evidence that JB ‘targeted’ vulnerable women by, for example, making a ‘beeline’ for them at events for people with learning disabilities.
JB had difficulties with learning and cognitive function, and had been diagnosed as suffering from Asperger’s syndrome, and was thought to have suffered brain damage as a result of his epilepsy. He lived in a supported residential placement. His care plan included 1:1 supervision when out in the community and, in particular, when in the presence of women. It was acknowledged this was to try to prevent him from behaving in a sexually inappropriate manner towards women.
As part of his Asperger’s syndrome, JB could not tell what others were feeling, or whether women were happy for him to touch them or whether people are angry or upset with him. His clear view was that if a woman had consented to sex at the outset, she could not withdraw consent during the act.
The local authority (“LA”) applied to court for authorisation of JB’s care plan with the restrictions mentioned above. An issue arose as to the relevant test for capacity to consent to sexual relations. The LA argued that the test required P to understand “the fact that the other person engaged in sexual activity must be able to, and does in fact, from their words and conduct, consent to such activity” (i.e. that this was “information relevant to the decision” under s.3(1) MCA). The OS disagreed, calling the LA’s approach “an impermissible attempt to raise the bar so as to incorporate into the section 3(1) ‘information’ a requirement that those who are alleged to pose a risk of sexual offending must acquire a sufficient understanding of the criminal law before he or she can be found to have capacity to consent to sexual relations.”
At first instance, Roberts J held the capacity test did not include the information as to whether P’s partner consents prior to and during the sexual act. She held that that “imposes a test which is set too high”, bearing in mind the “fundamental and basic human right to participate in sexual relations”, amongst other things.
The Court of Appeal (“CoA”) overturned that decision, holding that P does need to understand that their intended sexual partner “must at all times be consenting to sexual relations”. In so holding, the CoA stated that:
“The [MCA] and Court of Protection do not exist in a vacuum. They are part of a wider system of law and justice. Sexual relations between two people can only take place with the full and ongoing consent of both parties…The Court of Protection is concerned first and foremost with the individual who is the subject of proceedings, P. But as part of the wider system for the administration of justice, it must adhere to general principles of law. Further, as a public authority the Court of Protection has an obligation under s.6 of the Human Rights Act 1998 not to act in a way which is incompatible with the rights under the [ECHR].”
The OS submitted five grounds of appeal to the Supreme Court, all of which were dismissed.
By way of summary:
Ground 1 – the OS argued the CoA was wrong to recast the relevant matter as ‘engaging in’ sexual relations rather than ‘consenting to’ them (which the CoA had done at para 93). The Supreme Court disagreed, holding that “engaging in” sexual relations “better captures the nature of the issues in a case such as this, where JB wishes to initiate relations with others, rather than consent to relations proposed by someone else”. Even though the language in section 27 MCA (‘Excluded Decisions’) refers to ‘consenting to have sexual relations’, this section does not control section 2 MCA (the broad test for capacity).
Ground 2 – the OS argued the ‘relevant information’ does not include that the other person consents to the sexual activity before and throughout the activity. The OS said the MCA’s purpose was “confined to the protection of P, and did not extend to the protection of members of the public”. However, the Supreme Court agreed with the CoA that the Court of Protection is a public authority and has an obligation under section 6 HRA to not act incompatibly with human rights generally. Under s.3(4) MCA the ‘relevant information’ includes information about the reasonably foreseeable consequences of the decision. The court must therefore include “reasonably foreseeable adverse consequences for P and for members of the public” in the test for capacity. In practice, that means the court under the MCA protects members of the public.
Ground 3 – the OS argued that the CoA’s higher test for capacity created an “impermissible difference with the criminal law”, which is only concerned with the understanding of the complainant (or victim) of the sexual act. Here the capacity test would apply to P where he is initiating sexual relations. The Court found that “it remains possible for the civil law to impose a different and more demanding test of capacity”, and that such approach was justified by “overriding policy reasons” such as “the protection of others” and “the protection of P”.
Ground 4 – the OS argued the CoA’s test for capacity was inconsistent with Article 8 ECHR. The Court gave short shrift of this argument, stating that it was not clear what was being argued and the argument had been raised previously. In any case, the interpretation is compatible with Article 8.
Ground 5 – the OS argued that the CoA’s test for capacity to engage in sexual relations is inconsistent with Article 12(2) of the United Nations Convention on the Rights of Persons with Disabilities, which reads:
“State Parties shall recognise that persons with disabilities enjoy legal capacity on an equal basis with others in all aspects of life.”
The Court relied on its recent ruling in R(SC) v Secretary of State for Work and Pensions  UKSC 26, which held that domestic courts should not examine whether the UK has violated provisions of an unincorporated international treaty. The Court also found that no ‘separate standard’ for people lacking capacity and capacitous persons was created through the CoA’s test as “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 applies to everyone in society.”
The Supreme Court has clarified that when determining whether someone has capacity to decide whether to engage in sexual relations, the ‘information relevant to the decision’ under section 3(1) MCA includes the fact that the other person must consent before and throughout the sexual activity. P must be able to understand this in order to have capacity to decide whether to engage in sexual relations. If P does not understand this, P will lack capacity to engage in sexual relations.
This brings the test in line with a common human understanding of sexual relations which, as the CoA stated, are “mutually consensual”. The OS was concerned that including the disputed information would raise the bar too high, and unnecessarily exclude people lacking capacity from a “fundamental and basic human right to participate in sexual relations”. However, the Court counter-balanced a need to protect P from involvement in the criminal justice system and others from serious sexual assault, and its obligations as a ‘public authority’ required to protect people’s human rights generally under s.6 HRA.
This element will now need to be included in capacity assessments moving forward. It should be noted that under section 1(3) MCA, “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”. It may be that where a person lacks capacity to engage in sexual relations, care planning involves a greater degree of sexual education, in order to enable P to gain capacity in this area, and in particular to understand that a sexual partner must consent before and during the sexual act. Examples of this type of education are found in A Local Authority v TZ  EWHC 973 at - and are mentioned in CH v A Metropolitan Council  EWCOP 12.
The judgment is also a reminder that the Court of Protection is a public authority for the purposes of section 6 HRA, and it must not act incompatibly with people’s human rights generally. It is not solely concerned with P’s human rights.
 There are also provisions at sections 30 – 33 of the SOA criminalising sexual activity (or similar) where “a person is unable to refuse because of a reason related to a mental disorder”.