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You are here: BAILII >> Databases >> United Kingdom Supreme Court >> A Local Authority v JB (Rev1) [2021] UKSC 52 (24 November 2021) URL: http://www.bailii.org/uk/cases/UKSC/2021/52.html Cite as: [2022] COPLR 1, [2022] 3 All ER 697, [2021] UKSC 52, [2021] 3 WLR 1381, (2022) 183 BMLR 1, [2022] AC 1322 |
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[2021] UKSC 52 JUDGMENT A Local Authority (Respondent) before JUDGMENT GIVEN ON LORD STEPHENS: (with whom Lord Briggs, Lady Arden, Lord Burrows and Lady Rose agree) 1. Introduction 2. The proceedings Accordingly, the appeal was allowed given that JB did not understand information which was relevant to the decision to engage in sexual relations, namely that the other person must be able to consent and gives and maintains consent throughout. The declaration that JB had 3. JB’s personal circumstances (a) JB’s age, gender, personality, and present living arrangements (b) JB’s early development, the onset and consequences of epilepsy, together with other aspects of his (c) JB’s education (d) JB’s interests (e) JB’s autistic spectrum disorder: Asperger’s syndrome “‘I can’t tell what people are feeling. I can’t tell if they are flirting or cheerful’. ‘I can’t really tell signs from women’. ‘[Women are] hard to read and not obvious. People need to be more obvious’.” He also stated that he could not tell if women are happy for him to touch them or whether people are angry or upset with him. Dr Thrift is of the opinion that JB’s autism has meant that he has significant difficulty in understanding and/or interpreting the intentions, perspectives, needs and communications of others and that he lacks understanding of the need to adjust his behaviour accordingly. Based on this evidence, and by virtue of his autism, JB has a marked deficit in using and weighing information as to whether a woman would be giving and maintaining her consent throughout the sexual relations which JB wishes to initiate. (f) JB’s strong desire to engage in sexual relations leading to inappropriate sexual behaviour (g) Impairment of, or a disturbance in the functioning of, JB’s mind or brain (h) JB’s understanding in relation to “consenting to” or “engaging in” sexual relations “That’s a tricky one … If the person gives consent then she’s already given consent and you have to go through with it to the end. Once you’re half way through she can’t say ‘I don’t give you consent’ ‘cos you’re already doing what you need to do. She cannot change her mind if you are already doing it. Cos it’s her fault in the first place for saying yes. She can’t say yes and then say no. Already said yes and you’ve got your chance.” Dr Thrift recounted how JB did not shift in this view across all her assessment sessions, and how JB was visibly shaken at the idea that a partner would be able to withdraw consent. JB, therefore, does not understand that the other person can withdraw consent during a sexual act and therefore he would not “If a woman gets drunk at a party and has sex with a man there, is she fair game for anyone else?” JB response was: “I’d say she was fair game yes. Especially if she’s done it with one person. Yes if she drinks enough she’s bound to do it with the second one too.” (i) The risks posed by JB to others and to himself (j) A suggested programme of work to ameliorate JB’s risk to women 4. The MCA “A person must be assumed to have This principle requires all dealings with persons who have an impairment of, or a disturbance in the functioning of, the mind or brain to be based on the premise that every individual is competent until the contrary is proved. The burden of proof lies on the party asserting that a person does not have “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.” This principle establishes a statutory condition that all practicable steps are taken to enable a person to make a decision for himself or herself. If the person seeking to challenge “A person is not to be treated as unable to make a decision merely because he makes an unwise decision.” Legal “An act done, or decision made, under this Act for or on behalf of a person who lacks Under this principle if P lacks “Before the act is done, or the decision is made, regard must be had to whether the purpose for which it is needed can be as effectively achieved in a way that is less restrictive of the person’s rights and freedom of action.” This is self-explanatory. “2. People who lack (1) For the purposes of this Act, a person lacks (2) It does not matter whether the impairment or disturbance is permanent or temporary. (3) A lack of (a) a person’s age or appearance, or (b) a condition of his, or an aspect of his behaviour, which might lead others to make unjustified assumptions about his (4) In proceedings under this Act or any other enactment, any question whether a person lacks (5) No power which a person (‘D’) may exercise under this Act - (a) in relation to a person who lacks (b) where D reasonably thinks that a person lacks is exercisable in relation to a person under 16. (6) Subsection (5) is subject to section 18(3). 3. Inability to make decisions (1) For the purposes of section 2, a person is unable to make a decision for himself if he is unable - (a) to understand the information relevant to the decision, (b) to retain that information, (c) to (d) to communicate his decision (whether by talking, using sign language or any other means). (2) A person is not to be regarded as unable to understand the information relevant to a decision if he is able to understand an explanation of it given to him in a way that is appropriate to his circumstances (using simple language, visual aids or any other means). (3) The fact that a person is able to retain the information relevant to a decision for a short period only does not prevent him from being regarded as able to make the decision. (4) The information relevant to a decision includes information about the reasonably foreseeable consequences of - (a) deciding one way or another, or (b) failing to make the decision.” “(1) Nothing in this Act permits a decision on any of the following matters to be made on behalf of a person - (a) …, (b) consenting to have sexual relations, (c) …” “If a decision could have serious or grave consequences, it is even more important that a person understands the information relevant to that decision.” This again illustrates the importance of “the specific factual context of the case.” In this case, for instance, there would be “serious or grave consequences” for JB’s 5. The judgments of the Court of Protection and of the Court of Appeal (a) The judgment of Roberts J (b) The judgment of the Court of Appeal “the determination of “… the information relevant to the decision [to engage in sexual relations] 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 (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 I have added emphasis to the word “may” as Baker LJ next considered at paras 101 to 103 whether the information relevant to the decision to engage in sexual relations must always include all of the matters identified in para 100 so as to prevent the tailoring of relevant information to accommodate individual characteristics. He had referred (at paras 41-42) to his first instance decision in A Local Authority v TZ where he had accepted that information relevant to the decision could be tailored to the characteristics of the person whose 6. The grounds of appeal to this court (a) The formulation of “the matter” for the purposes of section 2(1) of the MCA (b) The identification, under section 3(1)(a) MCA, of the information relevant to the decision “as a public authority, the Court of Protection has an obligation under section 6 of the Human Rights Act 1998 not to act in a way which is incompatible with a right under the European Convention of Human Rights, as set out in Schedule 1 to the Act. Within the court, that obligation usually arises when considering the human rights of P, but it also extends to the rights of others.” In this way the court as a public authority, in determining what information is relevant to the decision, must include reasonably foreseeable adverse consequences for P and for members of the public. In practice, by doing so, the court under the MCA protects members of the public. As the Court of Appeal observed, at para 98: “Although the Court of Protection’s principal responsibility is towards P, it is part of the wider system of justice which exists to protect society as a whole.” Finally, the protection of the public provided by the criminal justice system or by a sexual risk order cannot detract from the protection which is provided in practical terms by including in the information relevant to the decision the reasonably foreseeable adverse consequences for P and for members of the public. For all these reasons I reject the submission that the purpose of the MCA is solely confined to the protection of P. (c) Whether the Court of Appeal’s test for P’s “… that there is no necessary requirement that the civil (family) law and criminal law should adopt the same test for Indeed, there are already existing differences in relation to the application of the test for “In this context both the criminal law and the civil law serve the same important function: to protect the vulnerable from abuse and exploitation … Viewed from this perspective, X either has (d) Whether the Court of Appeal’s test for P’s (e) Whether the Court of Appeal’s test for P’s “State Parties shall recognize that persons with disabilities enjoy legal The appellant contends that (a) 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 creates “a separate standard or test of 7. Disposal of the appeal
On appeal from: [2020] EWCA Civ 735
v JB (by his Litigation Friend, the Official Solicitor) (Appellant)
Lord Briggs
Lady Arden
Lord Burrows
Lord Stephens
Lady Rose
24 November 2021
Heard on 15 July 2021
Mental Capacity
Act 2005 (the “MCA”) for the appellant, JB, and others like him with an impairment of, or a disturbance in the functioning of, the mind or brain which potentially renders them unable to make a decision for themselves in relation to having sexual relations. The central issue is whether the information relevant to JB’s decision to have sexual relations includes the fact that the other person must be able to consent and gives and maintains consent throughout. If it does, then for JB to have
capacity
to make the decision for himself, he must be able to understand that information, retain that information and
use
and
weigh
that information. If JB is unable to do so, despite all practicable steps having been taken to help him, with the consequence that he lacks
capacity
to make a decision for himself to having sexual relations, then he will be deprived of all sexual relations, as no other person may consent on his behalf to him having such relations: section 27(1)(b) MCA.
capacity
in various matters. By 15 July 2019, the date of the hearing before Roberts J, the local authority and the Official Solicitor, on behalf of JB as his litigation friend, had reached agreement on the majority of issues about JB’s
capacity
, including that he lacked
capacity
to conduct the proceedings and to make decisions relating to his residence, care and support, contact with others and as to his
use
of the internet and social media. There remained the issue, as formulated by the parties, as to whether JB, in order to have the
capacity
“to consent” to sexual relations, must not only understand that he can give or withhold consent but must also understand that the other person must be able to consent and gives and maintains consent throughout. At the material time it was evident that because of an impairment of, or a disturbance in the functioning of, his mind or brain, JB did not have that understanding in relation to the consent of the other person. The judge identified the fundamental submission made on behalf of JB as being “that the consent of others is not relevant to the question of whether [he], or any other protected party, has
capacity
to consent to sexual relations” (see para 13, emphasis added). The local authority also formulated the issue in relation to JB’s
capacity
“to consent” but contended that a component of JB’s ability to consent was an understanding that the other person must be able to, and must in fact, consent. It was said that if this component was absent then sexual offences might be committed by JB and that to permit such a situation would be a derogation of responsibility by the Court of Protection.
capacity
of an individual in relation to sexual relations, the information relevant to the decision for the purposes of section 3(1) of the
Mental Capacity
Act 2005 does not include information that, absent consent of a sexual partner, attempting sexual relations with another person is liable to breach the criminal law” (para 87). She granted a declaration pursuant to section 15 MCA that “JB has
capacity
to consent to sexual relations”.
capacity
to consent to sexual relations was set aside, and an interim declaration was made under section 48 of the MCA that “there is reason to believe that JB lacked the
capacity
to decide whether to engage in sexual relations”. The question as to whether a final declaration should be made was remitted to the judge, who, it was anticipated, would consider it appropriate to seek supplemental evidence.
capacity
to make decisions as to various matters including consenting to sexual relations. They also jointly instructed another consultant clinical psychologist, Dr Jillian Peters, to provide her expert opinion as to various matters, such as whether JB poses a sexual risk to women or vulnerable women and, if so, the severity of the risk together with advice as to a programme of work that may ameliorate that risk. The summary of JB’s personal circumstances which is set out in this section of the judgment is taken from the reports of those two experts and from the judgments at first instance and in the Court of Appeal.
mental
and physical health
use
a continuous positive airway pressure machine whilst sleeping.
weighs
this in relation to his ability to be successful in his aim of having sex. Dr Thrift was careful to qualify her assessment by stating that this may not be related to a callous disregard for others, but rather to a lack of understanding of the needs of others as distinct from his own needs. However, it is apparent that JB targets the vulnerable and has a marked deficit in weighing whether the other person is able to consent.
use
of different forms of contraception to avoid pregnancy and to protect against disease.
weigh
this in his decision making.
use
or
weigh
it as part of the decision-making process. If he is unable to do so, then under section 2(1) MCA he would be unable to make a decision for himself in relation to that matter because of an autistic impairment of his mind.
mental
health given his ASD. There is also the risk of civil claims for compensation, though JB’s lack of financial resources may make such claims in practice improbable.
use
or
weigh
it as part of the decision-making process.
capacity
to make decisions for themselves, and, if they do, to decide what actions to take in the person’s best interests. A person who lacks
capacity
, or who is alleged to lack
capacity
, is known as “P”.
capacity
in accordance with sections 2 and 3 of the MCA.
capacity
unless it is established that he lacks
capacity
.”
capacity
. The standard of proof is the balance of probabilities: see section 2(4). Competence is decision-specific so that
capacity
is judged in relation to the particular decision, transaction or activity involved. P may be capable of making some decisions, but not others. The presumption of competence operates alongside a clear system for determining incapacity, for which see sections 2-3 MCA.
capacity
cannot show that the condition is satisfied, then the challenge will fail. This statutory condition facilitates freedom of choice and enables the maximisation of potential for those who are potentially incapacitous.
capacity
depends on the application of sections 2 and 3 of the MCA together with the principles in section 1. It does not depend on the wisdom of the decision. Furthermore, an important purpose of the MCA is to promote autonomy. That purpose aids the interpretation of sections 2 and 3 of the MCA. If P has
capacity
to make a decision then he or she has the right to make an unwise decision and to suffer the consequences if and when things go wrong. In this way P can learn from mistakes and thus attain a greater degree of independence.
capacity
must be done, or made, in his best interests.”
capacity
to make a decision, so that another person is allowed to make a decision on his behalf, those who act or make decisions on P’s behalf must do so in his best interests.
capacity
capacity
in relation to a matter if at the material time he is unable to make a decision for himself in relation to the matter because of an impairment of, or a disturbance in the functioning of, the mind or brain.
capacity
cannot be established merely by reference to -
capacity
.
capacity
within the meaning of this Act must be decided on the balance of probabilities.
capacity
, or
capacity
,
use
or
weigh
that information as part of the process of making the decision, or
capacity
.
capacity
, all of which were considered by the Law Commission prior to the MCA being passed in 2005: Law Commission Consultation Paper 119 (1991, [1991] EWLC C119) “Mentally Incapacitated Adults and Decision-Making: An Overview”; Law Commission Consultation Paper 128 (1993, [1993] EWLC C128) “Mentally Incapacitated Adults and Decision-Making: A New Jurisdiction”; and the Law Commission’s report on “
Mental
Incapacity” (1995) (Law Com No 231, [1995] EWLC 231) (HC 189). See also R v Cooper (Gary Anthony) [2009] UKHL 42; [2009] 1 WLR 1786, paras 11-13.
capacity
are (a) the “outcome” approach, (b) the “status'' (or “category”) approach, and (c) the “function” (or “understanding”) approach.
capacity
is determined by the content of the individual's decision. A decision which is inconsistent with the views and values of the assessor, or rejects conventional wisdom is by definition incompetently made.
capacity
according to his physical or
mental
status, such as age, place of residence or diagnosis, without any further inquiry into how membership of that category affects his competence as an individual. This may sometimes be a convenient method when a fairly arbitrary rule of thumb is required: for example, “no-one under the age of eighteen is competent to vote in elections”.
capacity
under the MCA. The MCA contemplates instances where a person can understand the nature and effects of the decision to be made, but the effects of his
mental
disability prevent him from using that information in the decision-making process: see section 3(1)(c) of the MCA and R v Cooper at para 24.
capacity
under the MCA, it is appropriate to make some specific observations as to sections 2 and 3 of the MCA.
capacity
in sections 2 and 3 of the MCA together with the principles in section 1 applies to all decisions, whatever their character; see the judgment of McFarlane LJ in York City Council v C [2013] EWCA Civ 478; [2014] Fam 10, para 36.
Capacity
may fluctuate over time, so that a person may have
capacity
at one time but not at another. The “material time” within section 2(1) is decision-specific (see para 67 below). The question is whether P has
capacity
to make a specific decision at the time when it needs to be made. Ordinarily, as in this case, this will involve a general forward-looking assessment made at the date of the hearing. However, if there is evidence of fluctuating
capacity
then that will be an appropriate qualification to the assessment.
capacity
is section 2(1). The remaining provisions of sections 2 and 3, including the specific elements within the decision-making process set out in section 3(1), are statutory descriptions and explanations which support the core provision in section 2(1). Those additional provisions do not establish a series of additional, freestanding tests of
capacity
. Section 2(1) is the single test, albeit that it falls to be interpreted by applying the more detailed description given around it in sections 2 and 3: see the judgment of McFarlane LJ in York City Council v C at paras 56 and 58-60.
capacity
‘to make a decision for himself in relation to the matter’.” The focus is on the
capacity
to make a specific decision so that the determination of
capacity
under Part 1 of the MCA 2005 is decision-specific as the Court of Appeal stated in this case at para 91. The only statutory test is in relation to the ability to decide. In the context of sexual relations, the other vocabulary that has developed around the MCA, of “person-specific”, “act-specific”, “situation-specific” and “issue-specific”, should not be permitted to detract from that statutory test, though it may helpfully be used to identify a particular feature of the matter in respect of which a decision is to be made in an individual case. For instance, “the matter” in this case cannot be described as being “person-specific” as there is no identified person with whom JB wishes to engage in sexual relations.
capacity
is decision-specific, the court is required to identify the correct formulation of “the matter” in respect of which it must evaluate whether P is unable to make a decision for himself: see York City Council v C at paras 19, 35 and 40.
capacity
to be considered in respect of every person with whom P contemplated sexual relations would not only be impracticable but would also constitute a great intrusion into P’s private life” (emphasis added): see A Local Authority v TZ [[2013] EWCOP 2322, para 23. A general non-specific formulation of “the matter” is also informed by considerations of pragmatism, as recognised by Sir Brian Leveson P, giving the judgment of the Court of Appeal, in In re M (An Adult) (
Capacity
: Consent to Sexual Relations) [2014] EWCA Civ 37; [2015] Fam 61, para 77. However, I respectfully disagree with the statement (in para 77) that “
capacity
to consent to future sexual relations can only be assessed on a general and non-specific basis” (emphasis added). Pragmatism does not require that consent to future sexual relations can only be assessed on a general and non-specific basis. Furthermore, such a restriction on the formulation of the matter is contrary to the open-textured nature of section 2(1) MCA. A general and non-specific basis is not the only appropriate formulation in respect of sexual relations as even in that context, “the matter” can be person-specific where it involves, for instance, sexual relations between a couple who have been in a long-standing relationship where one of them develops dementia or sustains a significant traumatic brain injury. It could also be person-specific in the case of sexual relations between two individuals who are mutually attracted to one another but who both have impairments of the functioning of their minds.
Mental Capacity
Act 2005 Code of Practice provides:
mental
health if he was incarcerated, see para 40 above. Other potential “serious or grave consequences” for JB would include anxiety, depression, self-harm and retaliatory harm requiring hospitalisation, see paras 10, 17, 38 and 40 above. There could also be “serious or grave consequences” for others if they were the victims of sexual assaults or of rapes perpetrated by JB. These “serious or grave consequences” make it “even more important [in this case] that [JB] understands the information relevant to” the decision to engage in or consent to sexual relations.
capacity
”: see In re M (An Adult) (
Capacity
: Consent to Sexual Relations) at para 80. To require a potentially incapacitous person to be capable of envisaging more consequences than persons of full
capacity
would derogate from personal autonomy.
use
or
weigh
that information as part of the process of making the decision (section 3(1)(c)).
use
or
weigh
information relevant to the decision as part of the decision-making process “should not involve a refined analysis of the sort which does not typically inform the decision … made by a person of full
capacity
”: In re M (An Adult) (
Capacity
: Consent to Sexual Relations) at para 81. It would also derogate from personal autonomy to require a potentially incapacitous person to undertake a more refined analysis than persons of full
capacity
.
use
and
weigh
that information did not lead to the conclusion that he was unable to make a decision for himself to consent to sexual relations. I acknowledge, as did the Court of Appeal, the judge’s wholly commendable and strong commitment to the principle of autonomy, and to the right of disabled people to enjoy life’s experiences to the full (see Court of Appeal judgment, para 105), the somewhat confusing development of the case law in this field (para 24) and the misleading dicta in previous reported cases (para 106).
capacity
under Part 1 of the MCA 2005 is decision specific. The focus of sections 2 and 3 of the Act is on the
capacity
to make decisions. The ‘information relevant to the decision’ depends first and foremost on the decision in question.”
capacity
to consent to< sexual relations. Having recast the decision in those terms, the Court of Appeal held that the “information relevant to the decision” inevitably includes the fact that any person with whom JB engages in sexual activity must be able to consent to such activity and does in fact consent to it.
capacity
to consent to the sexual activity and must in fact consent before and throughout the sexual activity;
use
of a condom.” (Emphasis added)
capacity
was in question, in that the risks of pregnancy resulting from sexual intercourse would not be relevant to a decision whether or not to engage in, or consent to, sexual relations with someone of the same sex. However, he stated at para 103 that it was not necessary to decide in JB’s case whether the information could be tailored, and that it would be prudent to refrain from commenting until there was an opportunity to hear full argument on the point in a case where the issue arises on the appeal.
capacity
to marry).” Mr McKendrick submitted, and I agree, that the reference to “the express terms of the 2005 Act” was a reference to section 27 MCA, which section, in respect of the issue on this appeal, identified the matter as “consenting to have sexual relations”. On this basis, he suggested that this passage supported his submission that section 27(1)(b) MCA formulated the matter for decision in section 2(1) as
capacity
to consent to sexual relations, such that there was no scope to reformulate the matter as
capacity
to engage in sexual relations.
capacity
to make a decision for himself under section 2(1) of the MCA. Section 27 only makes clear that “where a court finds that a person lacks
capacity
to consent to sexual relations, then the court does not have any jurisdiction to give consent on that person's behalf to any specific sexual encounter”: per Sir Brian Leveson P in In re M (An Adult) (
Capacity
: Consent to Sexual Relations) at para 78. Co-incidentally, in a particular case, a matter in section 27 may also be a matter within section 2(1), but as the Court of Appeal held at para 92, “the list in section 27 does not purport to be a comprehensive list of the decisions in respect of which issues as to
capacity
will arise.” Accordingly, I reject the submission that section 27(1)(b) prescriptively formulates the only matter for decision in section 2(1) MCA. Furthermore, I consider that the categories or domains in section 27(1) MCA are only relevant to the operation of that section. I respectfully disagree that section 27 MCA groups categories of “matter” or “decision” into domains for any other purpose. Rather, I consider that the wording of section 2(1) MCA is open and flexible, so as to accommodate any matter in relation to which an issue arises as to whether P is unable to make a decision for himself.
capacity
to consent to sexual relations” and “the ability to choose whether or not to engage in sexual activity”. Nor is it inconsistent with the decision of Munby J in In re: M M; Local Authority X v MM [2007] EWHC 2003 (Fam); [2009] 1 FLR 443, in which, at para 87, he referred to the
capacity
to choose whether or not to engage in sexual intercourse. The ability to choose whether or not to engage in sexual activity or intercourse is close to the Court of Appeal’s formulation of “engaging in” sexual relations. It may be helpful to observe that the terminology of a
capacity
to decide to “engage in” sexual relations embraces both (i) P’s
capacity
to consent to sexual relations initiated by the other party and (ii) P’s
capacity
to understand that, in relation to sexual relations initiated by P, the other party must be able to consent to sexual relations and must in fact be consenting, and consenting throughout, to the sexual relations.
capacity
with regard to sexual relations (under the MCA) should normally be assessed in most cases”.
capacity
to consent to the sexual activity and must in fact consent before and throughout the sexual activity recasts the test for
capacity
as “person-specific”. Mr McKendrick submitted that there was a consistent line of authority that the decision in relation to sexual relations was and remains act-specific so that the
capacity
to consent to future sexual relations can only be assessed on a general and non-specific basis rather than taking into account P’s understanding that the other person must be able to consent and gives and maintains consent throughout. Mr McKendrick contends that to take such an understanding into account is impermissibly person-specific. I reject this contention. First, the statutory test is decision-specific: see para 67 above. Second, the issues in this case (but, as I have stressed at paras 71-72 above, the position can be different in other cases) do not relate to sexual relations with any particular person. What is required is a generalised forward-looking evaluation in relation to JB’s
capacity
to have sexual relations with any woman. The inclusion of the consent of the other in the relevant information for the purposes of that evaluation does not introduce the specific characteristics of any individual person into the evaluation, but instead reflects the consensual nature of all sexual activity. It is not, therefore, “person-specific.” I accordingly agree with the Court of Appeal at para 95 that “The inclusion of an understanding of the other person's consent as part of the relevant information does not, … recast the test as ‘person-specific’.”
mental
impairments to understand. Accordingly, he argued, JB and others were being set up to fail. The appellant was supported in this submission by Respond’s submission that the Court of Appeal had promulgated “an elevated abstract test” which was likely to give rise to problems in real life situations. Respond submitted that a less abstract, more situation-specific test, and one that is less complex and does not require an assessment of the
capacity
of a proposed partner to consent, is more likely to preserve P’s right to a sexual life. Mr McKendrick relied in this respect on the legal complexities surrounding the criminal law concept of consent. He referred the court to Crown Court Compendium 2020, Part 1 at p 480 which lists eight ways in which the absence of consent may be proved and suggested that this would present an insurmountable hurdle for the potentially incapacitous. However, that is not the sort of refined analysis which typically informs the decision to engage in sexual relations made by a person of full
capacity
(see para 77 above). A potentially incapacitous person is simply required to understand that the other person must be able to consent and does in fact consent throughout. For my part the only alteration that needs to be made to the summary of the information relevant to the decision to engage in sexual relations, set out by the Court of Appeal (see para 84 above) is to change the words “must have
capacity
to” in (2) to “must be able to”. Subject to that change, I consider that the concepts are not too nebulous or refined, nor do they amount to an elevated abstract test, nor do they require a detailed understanding of the Crown Court Compendium.
capacity
, are largely visceral rather than cerebral, owing more to instinct and emotion than to analysis. On this basis he argued that to include as part of the information relevant to the decision 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 imposes a discriminatory cerebral analysis on the potentially incapacitous. I reject that submission. As the Court of Appeal observed, at para 96, “amongst the matters which every person engaging in sexual relations must think about is whether the other person is consenting” (emphasis added). If that is properly viewed as cerebral or as involving a degree of analysis, a decision to engage in sexual relations is necessarily cerebral or analytical to that extent.
capacity
to engage in sexual relations creates an impermissible difference with the criminal law
capacity
to consent to sexual relations for the purposes of the criminal law is concerned only with the understanding of the complainant about matters which are directly relevant to their autonomy.
capacity
to make a decision for himself in relation to the matter of his engaging in sexual relations. The clarification involves (a) formulating the matter for decision as engaging in sexual relations and (b) identifying that the 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. The question arises under this ground of appeal as to whether either of those matters creates an “impermissible” difference between the civil and criminal law.
capacity
to consent to sexual relations, …”
capacity
which may lead to different conclusions in civil and criminal trials. Two such differences are as follows.
capacity
, and the civil standard applies under the MCA. However, in respect of criminal proceedings for ill-treatment or neglect pursuant to section 44 MCA the civil standard of proof applies to the question whether P lacks
capacity
: see R v A (G) [2014] EWCA Crim 299; [2014] 1 WLR 2469, paras 20-27.
Capacity
: Consent to Sexual Relations) at para 76-77, the focus of the criminal law, in the context of sexual offences, is retrospective. It focuses upon a specific past event. Any issue relating to consent is evaluated in retrospect with respect to that singular event. So, the material time in a criminal case is the time of the alleged offence and the question becomes, for instance, “Did P have
capacity
to consent at that time?” But a court assessing
capacity
to engage in sexual relations under the MCA ordinarily needs to make a general, prospective evaluation which is not tied down to a particular time, (see para 64 above).
capacity
to consent to sexual relations. I note in that respect the views of Hedley J in A Local Authority v H [2012] EWCOP 49; [2012] 1 FCR 590, paras 21-22 and 26 (quoted by Sir Brian Leveson P in In re M (An Adult) at paras 46 – 47) who saw it as “highly desirable that there should be no unnecessary inconsistency between” the criminal and civil law (emphasis added). The “obvious desirability” that civil and criminal jurisdictions should adopt the same test for
capacity
to consent to sexual relations was also recognised by Macur LJ giving the judgment of the Court of Appeal in R v A (G) at paras 18 and 19. But this observation was obiter, see para 20 of her judgment.
capacity
in both the civil and criminal law. I also agree that even if the same test for
capacity
applies in the civil and criminal law, a jury will not need to be directed in strict accordance with the language used by, and steps to be adopted in accordance with, proceedings brought pursuant to the MCA: see R v A (G) [2014] 1 WLR 2469, para 19 as more accurately recorded at [2014] EWCA Crim 299.
capacity
should be the same. Munby J set out the reasons of policy in In re MM (at para 89):
capacity
to consent to sexual intercourse or she does not. It cannot depend upon the forensic context in which the question arises, for otherwise, it might be thought, the law would be brought into disrepute.”
capacity
than the criminal law test.
capacity
. In that respect, there are countervailing and overriding policy reasons supporting the clarification of the test for
capacity
under the MCA: namely, the protection of others and the protection of P, see para 92 above. Those policy reasons would amply justify any differences that might arise between the civil and criminal law tests for
capacity
. As the Court of Appeal stated in this case (at para 97) the fundamental responsibilities of the Court of Protection include the duty to protect P from harm. The protection given by the requirement that P should understand that P should only have sex with someone who is able to consent and gives and maintains consent throughout “protects both participants from serious harm” (see the Court of Appeal in this case at para 106). I agree. On that ground alone I would dismiss the argument that any differences between the civil and criminal law test for
capacity
which have been or may have been created by the clarification of the test under the MCA, are “impermissible”. Accordingly, this argument falls at the first hurdle.
capacity
in the civil and the criminal law.
capacity
under the MCA by this decision results in any differences with the test for
capacity
in the criminal law is best left to be decided on the facts of individual criminal cases and may turn on the particular criminal offence in question. Not only are the potential differences more appropriately left to individual cases, but the restricted way in which this appeal was conducted did not allow all the similarities or differences between the civil and criminal law to be fully explored. So, the comments which I now make about whether there are any differences are obiter.
capacity
and consent in the context of sexual relations. Section 74 of the SOA under the rubric of “Consent”, in so far as relevant, defines consent in the following terms: “…, a person consents if he agrees by choice, and has the freedom and
capacity
to make that choice.” The definition of consent in section 74 refers to but does not define “
capacity
”. Munby J noted (obiter) in X City Council v MB [2006] 2 FLR 968 (at para 82) that the common law test of
capacity
was “seemingly preserved” by section 74.
capacity
in the context of the offences created in sections 30-33 in relation to persons with a
mental
disorder impeding choice. These sections deal respectively with sexual activity with a person with a
mental
disorder impeding choice (section 30); causing or inciting a person, with a
mental
disorder impeding choice, to engage in sexual activity (section 31); engaging in sexual activity in the presence of a person with a
mental
disorder impeding choice (section 32); and causing a person, with a
mental
disorder impeding choice, to watch a sexual act (section 33). In relation to each of these offences, if P is the complainant (i.e., the victim of the criminal offending), there is a materially identical provision to the effect that P is to be taken to be unable to refuse if “he lacks the
capacity
to choose whether to [do the material thing] (whether because he lacks sufficient understanding of the nature or reasonably foreseeable consequences of what is being done, or for any other reason)” (emphasis added). Macur LJ giving the judgment of the Court of Appeal in R v A (G) at paras 24 and 25 stated that the words to which I have added emphasis “reflect the provisions of sections 2(1) and 3(1) of the [MCA]”. This led her to determine that “the difference in definition of
capacity
in the civil and criminal jurisprudence is a difference without distinction.” Although the wording in sections 30-33 SOA is different, I agree that the definition in those sections reflects the provisions of sections 2(1) and 3(1) MCA. However, I respectfully do not agree that this is “a difference without distinction”. For instance, in the context of the MCA, information relevant to the decision to “engage in” sexual relations 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. P lacks
capacity
if P is unable to understand that information or if he is unable to
use
or
weigh
it as part of the decision-making process. However, to my mind that aspect of
capacity
is irrelevant in the context of sections 30-33 SOA provided P is the complainant rather than the alleged perpetrator (I deal in para 116 below with where P is the alleged perpetrator). In that criminal context P’s
capacity
to consent would not include a sufficient understanding by him of the fact that the alleged perpetrator (that is, the other person) must have the ability to consent to the sexual activity and must in fact consent before and throughout the sexual activity.
capacity
under the MCA creates a difference with the criminal law in the context of the offences created by sections 30-33 SOA. That difference is not impermissible, however, because it is capable of being identified and accommodated in any criminal trial.
capacity
to “consent to” not to “engage in” sexual relations. These are two different concepts. The
capacity
to “engage in” sexual relations encompasses both P as the initiator of those relations and P as the person consenting to sexual relations initiated by another. The information relevant to a decision whether to initiate sexual relations 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. That is not information relevant to an evaluation of whether P has the
capacity
to “consent to” sexual relations initiated by another person. As the Court of Appeal stated in this case (at para 93) “The word "consent" implies agreeing to sexual relations proposed by someone else.” The
capacity
to consent to sexual relations for the purposes of the criminal law is concerned with the understanding of the complainant (whom I have been referring to as P) about matters which are relevant to their autonomy, not those which are relevant to the autonomy of the alleged perpetrator. I do not consider that the criminal law requires that a complainant understands that their assailant must have the
capacity
to consent and in fact consents before the complainant can be considered to have
capacity
. I do not discern any difference in this regard between the civil and criminal law.
use
or
weigh
information which 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.
use
or
weigh
that information as part of the process of forming a reasonable belief. If P is able to understand 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, and if P is able to
use
or
weigh
that information as part of the process of making the decision as to whether to engage in sexual relations, then P is in the same position as an accused in the criminal context. I am therefore not persuaded that there are any unnecessary differences in this regard as between the civil or criminal law (which in any event need not be identical).
mental
disorder, probably paranoid schizophrenia, at the time of the offences. The expert said that the acts of sexual intercourse might have been motivated by the defendant’s delusional beliefs that he had sexual healing powers, but that any such delusions had not affected his ability to understand whether the complainant was consenting. In directing the jury, the judge said that when determining whether the defendant had had a reasonable belief in the complainant’s consent for the purposes of section 1(1) SOA they should ignore the defendant’s
mental
illness. The conviction was upheld on appeal. The Court of Appeal held (at para 40) that unless and until the state of mind amounts to insanity in law, then under the rule enacted in the SOA, beliefs in consent arising from conditions such as delusional psychotic illness or personality disorders must be judged by objective standards of reasonableness. The case did not concern any potential differences between the civil and criminal law in relation to the test for
capacity
. However, the Court of Appeal discussed (at para 41) a potential future case in which an accused in JB’s position had demonstrated an inability to recognise subtle social signals. The Court of Appeal stated that whether such an inability could be relevant to the reasonableness of a belief in consent “must await a decision on specific facts”. My judgment in this case is not intended either to contradict or to build on what was stated by the Court of Appeal in R v B (MA).
mental
disorder impeding choice, to engage in sexual activity”. I consider that the concept of engaging in sexual activity is a descriptor of the actus reus of that offence and is consistent with the clarification of the law in respect of the MCA which also
uses
the concept of engaging in sexual relations. I do not discern any difference in that respect between the civil and criminal law. Each of those sections addresses the mens rea of the offender as being that “A knows or could reasonably be expected to know that B has a
mental
disorder and that because of it or for a reason related to it B is likely to be unable to refuse.” A is here the person I have been referring to as P. Section 30 also provides that B is unable to refuse if “he lacks the
capacity
to choose whether to [do the material thing] (whether because he lacks sufficient understanding of the nature or reasonably foreseeable consequences of what is being done, or for any other reason)” and sections 31-33 have similar provisions. P’s knowledge of the complainant being unable to refuse includes the reasonably foreseeable consequences of what is being done but it does not include a requirement that the complainant should have any understanding of the fact that the alleged perpetrator (that is, the other person) must have the ability to consent to the sexual activity and must in fact consent before and throughout the sexual activity. Again, I do not discern any difference in this regard between the civil and criminal law.
capacity
to engage in sexual relations is inconsistent with article 8 ECHR
capacity
to make decisions in relation to sexual relations (in circumstances where the Court of Appeal only made an interim declaration that there was reason to believe that he lacked
capacity
to decide whether to engage in sexual relations); and (2) the steps being taken to secure his ability to develop safe relationships with women, including the ongoing education being provided by a clinical psychologist. I consider that this objection has considerable force. But in any event, any interference would be in accordance with the MCA, and therefore in accordance with the law. Furthermore, a legitimate aim of any interference with JB’s article 8 rights, if that article is engaged, would be the protection of the health, both
mental
and physical, of both JB and of others. Other legitimate aims would be the protection of the rights and freedom of others as well as the prevention of disorder or crime. There have been no factual findings in relation to the proportionality of any interference in pursuit of those legitimate aims. For all these reasons I would refuse permission to raise this argument.
capacity
to engage in sexual relations is inconsistent with article 12(2) of the United Nations Convention on the Rights of Persons with Disabilities
capacity
on an equal basis with others in all aspects of life.”
capacity
for people with disabilities” and (b) this treaty obligation should “preclude the
use
of a separate standard or test of
capacity
for people with disabilities, for assessing consent to sexual relations.” I reject the contention at (a). There is no separate standard or test for persons with disabilities. 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. This ground of appeal therefore fails at the first hurdle, but in any event the contention that this court should examine whether the United Kingdom has violated provisions of an unincorporated international treaty (which is the effect of the appellant’s contention at (b)) has recently been considered, and rejected, by this court in R (SC) v Secretary of State for Work and Pensions [2021] UKSC 26; [2021] 3 WLR 428, paras 77-96.
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 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.
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URL: http://www.bailii.org/uk/cases/UKSC/2021/52.html