Judge: Roberts J
Citation:  EWCOP 39
This case was concerned with whether the presumption that a man had capacity to consent to sexual relations had been rebutted. In particular there was a dispute as to whether the “information relevant to the decision” within s.(31) MCA 2005 includes the fact that the other person engaged in sexual activity with P, must be able to, and does in fact, from their words and conduct, consent to such activity.
JB was a 36 year old man with a diagnosis of autism combined with impaired cognition. JB lived in a supported residential placement where he was subject to a comprehensive care plan which imposed significant restrictions on his ability to socialise freely with whomever he chooses. These were imposed primarily in order to prevent him from behaving in a sexually inappropriate manner towards women. JB had been assessed as a moderate risk of sexual offending to women. In particular the risk was of JB “sexually touching these women without consent. In terms of vulnerable women who do not have the capacity to consent to sexual relations, there is a risk of [JB] not recognising or respecting this fact, resulting in the potential for rape to occur.”
The single joint expert instructed by the parties was of the view that JB had the ability to consent to sexual relations albeit that he does not understand or weigh “highly pertinent factors in ensuring he engages in lawful sexual activity.”
JB objected to the restrictions, wanting desperately to find a girlfriend and to have a sexual relationship.
The local authority argued that an understanding that sexual activity is a consensual act on the part of any potential partner is necessary in order to protect JB from committing criminal acts and so being imprisoned or hospitalised pursuant to the Mental Health Act “in circumstances where, due to his mental impairment, he cannot comprehend or acknowledge the concept of consent.”
The Official Solicitor argued that as a matter of public policy the MCA should not be used as the means of imposing on a protected party restrictions which are designed either to avoid the risk of criminal offending or for the protection of the public at large. Further, the local authority’s approach amounted to an impermissible attempt to include within the text for capacity to consent to sexual relations a requirement to understand, retain use and weigh potentially sophisticated aspects of domestic criminal law thus raising the bar from the deliberately low level at which it has been set in order to avoid discriminating against vulnerable adults with learning disabilities and other cognitive challenges who, despite those challenges, should be entitled nevertheless to exercise one of the most basic and instinctive functions of a human existence.
Roberts J ultimately agreed with the arguments of the Official Solicitor on the basis that:
It was agreed between the parties that “whilst it is permissible to weigh the risk of P entering the criminal justice system and/or being the target of some form of vigilante violence as part of a best interests analysis, what is not permissible is the imposition of a restriction on his liberty in order to prevent the possibility of offending insofar as it purely risked harm to those other than P. In this context the protection of others falls squarely within the Mental Health Act 1983 as opposed to the MCA 2005.”
This case raises highly sensitive and difficult issues of, on the one hand, public protection and on the other, fundamental rights. Such decisions are rooted in public policy as the Court of Appeal accepted in IM v LM and Others  EWCA Civ 37.
While it is clear that the court’s primary concern was not to raise the bar on the test for capacity to consent to sexual relations impermissibly high so as to discriminate against JB (consistent with the Court of Appeal decision in IM), the consequence of the judgment is to strike from the test as relevant information a foreseeable consequence of JB having sexual relations (namely exposure to criminal sanctions or detention under the MHA as a result of his lack of understanding of the need for his partner to consent to the act). This approach is arguably inconsistent with the Court of Appeal decision in B v A Local Authority  EWCA Civ 913 in which the Court of Appeal emphasised that P’s ability to understand, retain, use and weigh the reasonably foreseeable consequences of the decision at hand is at the heart of the MCA test.
A further difficulty can be seen from paragraph 80, in which Roberts J observed that:
Distilled into its essence, it seems to me that P’s own choice, and his appreciation of that choice and the opportunity to refuse to consent, is an integral element of the capacity decision itself. Knowledge of the other party’s consent to the proposed sexual activity is certainly relevant to the choice which then confronts P as to whether or not he (or she) goes ahead with that activity and thus its essentially lawful or unlawful nature.
But, if JB had no understanding – and hence arguably no ability to ‘know’ – either the need for or the fact of a prospective partner’s consent, then how could he be said to be exercising a capacitous choice whether to engage in sexual relations?
Perhaps one way of trying to unpick this legal and ethical quagmire is to focus in on the decision that P is being asked to make. If the question is – can P consent to sexual relations (and it is worth noting that this is the way the ‘matter’ is defined in s. 27 MCA 2005 where the prohibition on consenting on P’s behalf to certain family relationships lies) – it is easier to understand why an understanding of the other parties’ need to consent is not relevant. Articulating the question in this way suggests that P is a recipient of sexual advances on the part of a willing and consenting individual. All P needs to do is consent to the act on his/her own behalf. To hold otherwise in the case of a person such as JB whose deficit is said to be understanding the need for consent from the other partner would be to mean that the person wishing to have sexual relations with P would be committing an offence even though both of them were in fact consenting to the act.
But describe the ‘matter’ in a different way – whether P can make decisions about sexual relations – and change the scenario (in the case of JB to the more realistic one of JB being, for want of a better term, the aggressor, seeking out sexual partners), then the decision arguably shifts from looking at the matter simply through the lens of P’s consent, to encompass the partner’s consent as well, given the reasonably foreseeable consequences to a P who commits a sexual offence.
We suspect that this judgment is not the last word on this knotty subject and our analysis raises the fascinating possibility that if the ‘matter’ is articulated in the wider way as capacity to make decisions about sexual relations, that a best interest decision could be made in respect of P as it is not prohibited by s. 27 MCA 2005.