The Supreme Court has upheld a Court of Appeal decision that to have capacity to have sexual relations with another person, a person needs be aware that their partner must have the ability to consent to the sexual activity and must in fact consent before and throughout the sexual activity.
In A Local Authority v JB  UKSC 52, the appellant, JB, is a 37 year-old single man with a complex diagnosis of autistic spectrum disorder combined with impaired cognition, who has expressed a desire to have a girlfriend.
His previous behaviour towards women led the respondent local authority to conclude that he cannot safely have unsupervised contact with them.
The local authority filed an application in the Court of Protection seeking declarations under the Mental Capacity Act 2005 as to JB’s capacity in various areas, including his 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 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.
The Supreme Court was presented with five grounds of appeal. Lord Stephens gave the judgment, with which all members of the Court agreed. [This article is based on the court's press summary]
The first ground argued it was wrong to recast the relevant matter as whether JB had capacity to "engage in" sexual relations because section 27(1)(b) of the Mental Capacity Act 2005 – which sets out those decisions which cannot be made on behalf of a person – refers to “consenting to have sexual relations”. The appellant argued that this section should be read as controlling the scope of section 2(1) of the Act, which relates to whether a person lacks capacity.
Lord Stephens rejected this interpretation of the statutory scheme and found that the wording of the section is "open and flexible". The Supreme Court also rejected the alternative submissions on behalf of the appellant that JB's desire to initiate sexual relations was not a "decision" within the meaning of the Act.
Ground two asserted that even if the relevant matter was recast as whether a person had capacity to “engage in” sexual relations, in answering that question, it was not relevant to look at whether that person understood that the other person must be able to consent, and did in fact give and maintain consent throughout the act.
The appellant argued that this interpretation of the 2005 Act inappropriately extended its purpose to protecting the general public, and moreover created an impermissibly "person-specific" test for capacity.
Lord Stephens rejected the submissions. He found that it was correct that the Court of Protection should have regard to reasonably foreseeable adverse consequences with the aim of protecting members of the public, as well as the person who may lack capacity. In addition, the court found that the test in section 2(1) was decision-specific, not person-specific.
In the appellant’s third ground, counsel submitted that to have regard to whether a person had capacity to understand that the other person must be able to consent, and must in fact consent before and throughout the sexual relations, creates an impermissible difference between the civil and criminal law.
However, Lord Stephens found that no impermissible difference arose, and that there were no strong policy justifications, including the Court of Protection's responsibility to protect persons who may lack capacity as well as to protect others, for any higher standard in the civil law test for consent.
The Supreme Court judge also found that any differences between the civil law test and the criminal law test should be assessed as they arose in individual cases.
Permission to raise the appellant's fourth ground was refused. The appellant had sought to argue that the 2005 Act must be construed compatibly with Article 8 of the European Convention on Human Rights which provides for a right to respect for private and family life. The court refused the ground as it was not raised prior to the appeal to the Supreme Court. However, the Supreme Court nevertheless found the operation of the Act to be compatible with Article 8.
The final ground argued that the Court of Appeal's test for capacity to engage in sexual relations was inconsistent with article 12(2) of the United Nations Convention on the Rights of Persons with Disabilities, which provides for recognition that persons with disabilities enjoy legal capacity on an equal basis with others in all aspects of life.
Lord Stephens rejected this argument as he found there ws no separate standard for persons with disabilities. Furthermore, he noted that in R (SC, CB and 8 children) v Secretary of State for Work and Pensions  UKSC 26, the Supreme Court had recently confirmed that it would not examine whether the UK had violated provisions of an international treaty which were unincorporated in domestic law.
Disposing of the appeal, Lord Stephens said: "The evaluation of JB’s capacity to make a decision for himself is in relation to “the matter” of his “engaging in” sexual relations. Information relevant to that decision 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. Under section 3(1)(a) MCA JB should be able to understand that information and under section 3(1)(c) MCA JB he should be able to use or to weigh it as part of the decision-making process. Applying the test in section 2(1) MCA on the available information, JB is unable to make a decision for himself in relation to that matter because of an autistic impairment of his mind.
"However, I agree with the Court of Appeal that because this information was not fully considered or analysed during the hearings before the judge, it would not be appropriate to make a final declaration that JB does not have capacity to make a decision to engage in sexual relations. The right course is therefore to remit the matter to the judge for reconsideration in the light of this judgment."
The appeal was dismissed.