HD (Capacity to Engage in Sexual Relations)
In HD Cobb J has grappled with the impact of the Court of Appeal's decision in Re JB [2020] EWCA Civ 735, in which the Court of Appeal had made clear that the question of capacity with regard to sexual relations should normally be assessed by reference to the question of whether the person has capacity to decide to engage in sexual relations, rather than (as had previously been understood) to consent. The Court of Appeal in JB identified (at paragraph 100) that the relevant information for purposes of deciding to engage in sexual relations may include "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."
In the case before him, concerning a 29 year old woman with what was described as a mildly severe learning disability, Cobb J found that:
- […] on the ultimately undisputed evidence and on the application of the test propounded in Re JB, I am driven to the conclusion that while HD understands the need for a sexual partner to consent to engage in sexual relations, it is clear from the evidence that she cannot currently understand the need for a sexual partner to have capacity, to consent to sexual relations. I might add that had the question of HD's capacity to engage in sexual relations been listed before me several months earlier, i.e., prior to the Court of Appeal's decision in Re JB, I would probably have reached the opposite conclusion (i.e., that HD had capacity).
[n]otwithstanding the inevitably distressing implications for HD of the conclusion to which the parties were drawn on the evidence, Mr McKendrick accepted that the circumstances did not exist here for the court to tailor or disapply the application of any of the relevant Re JB information. I agree. In short, there is no proper basis for distinguishing HD's case from the ordinary run of cases which it seems to me were contemplated by Baker LJ, and I could not therefore but conclude that the information relevant to HD's decision should be those set out in [100] of Re JB.
One of the experts before him was of the view that it would not be possible to enable HD to learn how to assess the capacity of her sexual partner to consent to sexual relations. Another was more optimistic, and Cobb J considered that "there is nothing to be lost, and possibly much to be gained, by providing HD with a package of further education to see if she can so learn. In view of Dr. Carritt-Baker's pessimism about the outcome, I do not propose to adjourn these proceedings now to await the outcome of any such education offered; I would however be very willing to reserve any further application for determination of this issue to myself" (paragraph 29).
Cobb J noted that he had been asked to consider the analogous position of 'consent' under the criminal law:
- [Leading Counsel for HD]drew attention to the commission of the offence of rape if the alleged perpetrator "does not reasonably believe [their partner] consents" – see section 1(2)and 3(1)(d) of the Sexual Offences Act 2003 (the 'reasonable belief' defence). He argued that an anomaly may well arise where the capacitous may lawfully reasonably believe their partner has capacity to consent to sex, and does consent, as a matter of criminal law, whereas in the context of welfare proceedings in the Court of Protection P must understand, retain, weigh up and use the fact her partner must have capacity to engage in sex. He submitted that the Court of Appeal in Re JB does not explain why a heightened civil test is required beyond that needed by the criminal law. His submission in this regard chimed with the observations of Macur LJ in R v GA [2014] EWCA Crim 299 in which she said this:
"The judgment of the Court of Appeal recognises and adopts the principle of the obvious desirability that civil and criminal jurisdictions should adopt the same test for capacity to consent to sexual relations by reference to various first instance judgments, amongst others Re MM (Local Authority X v MM and KM) [2007] EWHC 2003.
We agree. ……"
Cobb J gracefully declined to decide these points, however, as they did not arise on the case before him. He did though, note that Baker LJ in Re JB was clear that the jurisdiction of the Court of Protection has a distinctly different focus from the criminal law and that it was not "appropriate to view these issues through 'the prism of the criminal law'" (paragraph 106). On the contrary:
What is needed, in my view, is an understanding that you should only have sex with someone who is able to consent and gives and maintains consent throughout. The protection given by such a requirement is not confined to the criminal legal consequences. It protects both participants from serious harm. (paragraph 107)
Cobb J was well aware of the interference in the life of HD that he was going to flow from his declaration that she lacked capacity to engage in sexual relations.
- 33. [She] is soon to be 30 years old and for the first time in her life will be living in her own apartment. She is at a crucial stage in her future development and has much to look forward to. She has met a partner (Z) with whom she appears happy. No assumptions can be made about the strength of her feelings for Z, or his for her, simply because they are both learning disabled; I value his and her achievements in finding happiness in a relationship in the same way as capacitous non-learning-disabled couples.
It should be noted that the Supreme Court may yet pronounce further in JB's case, the Official Solicitor's application for permission to appeal not yet having been determined.
Cobb J was clearly driven to the conclusion that he reached in this case reluctantly, and it is difficult to avoid the thought that, yet again, the tension between potentially incompatible public policy aims: (1) the securing of the importance of consent as meaning consent; and (2) the securing of the right of those with cognitive impairments to express themselves sexually is singularly poorly-served by the statutory law in this area.
One further, unrelated, point is of note – Cobb J observes, in passing, the fact that there was some uncertainty about how HD had been fitted with a contraceptive implant given her apparent lack of capacity to be able to consent to the procedure. One can see the judicial eyebrows being raised in the footnote where he noted that it appeared that her father had signed the relevant document – in 2018…
