Mental capacity & sexual relations: a change in approach?
The Court of Appeal has in the case of A Local Authority v JB  EWCA Civ 735 sought to provide clarity to the ever complicated question…
The Court of Appeal has in the case of A Local Authority v JB  EWCA Civ 735 sought to provide clarity to the ever complicated question surrounding mental capacity and sexual relations. Its decision is likely to assist local authorities in managing difficult cases where a service user understands the mechanics of sex and the other aspects of the test as previously set out by the Court of Appeal, relationship but is a significant risk to others as they do not understand that the other person must consent to the act.
JB is a 36-year-old man with a complex diagnosis; he would like to be able to have the freedom to develop a relationship and engage in sexual relations. The court at first instance found that he did have the capacity to understand the mechanics of sexual relations, the associated health risks and that the act can result in pregnancy and so found that he had the capacity to consent. As part of the judgement it was made clear that the court did not consider that a part of the capacity test for sexual relations should include the ability of JB to understand whether or not the other person consented or was able to consent.
The Court of Appeal decision
The local authority appealed and the COA has now confirmed that when determining whether a person has capacity to enter sexual relations, included in the relevant information that the person must understand is that the other person must consent to the sexual activity.
At para 100 of the judgement the following approach is set out:
"In summary, 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.”
Unfortunately, the Court of Appeal declined to go and consider the question raised in London Borough of Tower Hamlets v NB and another  EWCOP 17, as to whether the information relevant to the decision to engage in sexual relations must in every case include all of the matters identified in the previous paragraph. Instead Baker LJ said:
“Any observations we might make on the subject would …not be binding authority. The summary of the case law set out above illustrates that on several occasions judicial obiter dicta in this difficult area of the law have been initially followed by other judges, only to be rejected in later cases after hearing further argument. For that reason, it would be prudent for this Court to refrain from commenting until it has an opportunity to hear full argument on the point in a case where the issue arises on the appeal.”
The first instance decision in this case caused widespread concern and hit the front pages of many newspapers. It also raised real issues for those managing risks and providing support to service users with the same functioning as JB. The Court of Appeal’s decision will be widely welcomed, but one cannot help think that there was a missed opportunity for a view to be given on the decision in the Tower Hamlets case. One thing that is for sure is that it will not be long until the courts will have to further grapple with the test for capacity and sexual relations.