Landmark decision on capacity to understand consent

A Local Authority v JB [2021] UKSC 52 concerned JB, a 38-year-old man with epilepsy, Asperger's syndrome and brain damage, who has expressed a strong desire to have a girlfriend and engage in sexual relations. However, his previous behaviour towards women indicates he cannot safely have unsupervised contact with them. The local authority sought a declaration in the Court of Protection on JB’s capacity in relation to sexual relations.

In the Court of Protection, the judge held it was not necessary for a person to understand the need for their sexual partner’s consent and declared JB had capacity. However, the Court of Appeal, and now the Supreme Court, disagreed.

Delivering his judgment, Lord Justice Stephens said the Mental Capacity Act 2005 and the Court of Protection ‘are part of a wider system of law and justice, and so must take into account the need to protect others.

‘The Court of Protection should have regard to reasonably foreseeable adverse consequences, with the aim of protecting members of the public as well as persons who may lack capacity.’

Jemma Garside, a solicitor who specialises in Court of Protection and mental capacity matters at Kingsley Napley, said: ‘This is a landmark decision and the first time the Supreme Court has set down the relevant considerations that a person must understand in order to satisfy the legal test to be applied in order to demonstrate that they have mental capacity to engage in sexual acts.

‘The Court unanimously agreed with the previous Court of Appeal decision that a person will only have capacity to engage in sex with another if they can understand that their partner must “have the ability to consent to the sexual activity” and must do so “throughout”.

‘While this is consistent with the definition of consent applied in criminal cases (which defines consent as having the freedom and capacity to agree by choice) the decision makes no effort to help us understand how this category of people can demonstrate giving or receiving consent. Rather it demonstrates that the law did not and still does not recognise their autonomy.

‘This will have far reaching consequences for young adults with learning disabilities and those in need of support in care home settings. Of concern is how this is to be applied and it seems highly likely that this will place further restrictions on the private lives of vulnerable individuals.’