Court of protection: Sexual relations & consent

• A Local Authority v JB [2020] EWCA Civ 735: a fascinating and comprehensive review of the law on capacity to have sexual relations.

‘No man is an island’. So Lord Justice Baker reminded us recently in A local authority v JB [2020] EWCA Civ 735, [2020] All ER (D) 62 (Jun) (at [98]). The judgment provides a fascinating and comprehensive review of the law on capacity to have sexual relations, cutting through the confusing mire of (largely obiter) case law to bring a degree of clarity and refinement to the requisite capacity test. Naturally, the wishes of P (the subject of a capacity assessment) and his or her consent to sexual relations were central in previous reported decisions, but in JB it was the consent of a potential partner under the microscope.

Due to his Asperger’s Syndrome, JB had marked difficulties in social interactions and his adaptive and global intellectual functioning. Like P