Supreme Court decides the test for capacity to engage in sexual relations

The Supreme Court has dismissed the Official Solicitor's appeal against the decision of the Court of Appeal in the case of JB, concerning capacity to make decisions about engaging in sexual relations.   Giving the sole judgment of the Supreme Court, Lord Stephens, made clear that:

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.

Lord Stephens has also made clear that, whilst in general, the determination of whether a person has capacity to decide to engage in sexual relations is to be carried out on a 'generalised forward-looking' basis, there will be situations where it is necessary to ask the question by reference to the person's particular circumstances, and a particular current or prospective sexual partner.

This is the first case concerning decision-making capacity – with all the implications that it has for the rights not just of the person but potentially of others – to reach the Supreme Court.  In the course of his judgment, Lord Stephens identified key points in relation to the consideration of capacity more generally, and clarified that the first question to ask in relation to a person's capacity to make any form of decision is whether they can, functionally, make the decision, and only if they cannot make the decision then examine whether there is a causative nexus between the person's impairment or disturbance in the functioning of their mind or brain and that inability.

Members of Chambers are taking part in a webinar on Thursday 25 November about the decision and its implications; the webinar is now fully booked but a recording will be available on the website by the end of this week.

Ian Brownhill appeared for the appellant JB, with John McKendrick QC and Helen Law instructed by Karen Jackson of Enable Law and the Official Solicitor.

Vikram Sachdeva QC , Alex Ruck Keene , Fiona Paterson appeared for the respondent local authority, with Richard Whittam QC.

Tor Butler-Cole QC appeared for the intervener, the Centre for Women's Justice with Tim James-Matthews

The full judgment may be found here