New rules of engagement: capacity to accept sex … but not to offer it?

Mental capacity to consent to sexual relations is a topic which has plagued the Court of Protection for over a decade. Whether capacity is “person-specific”, “issue-specific”, “status-specific”, or “act-specific”, the case law has been difficult to penetrate at best.

The recent Court of Appeal case of Re JB (Capacity: Sexual Relations) [2020] EWCA Civ 735 seeks to wade through the muck.

The facts

This case concerns a 36-year-old man (“JB”) with a diagnosis of autistic spectrum disorder who wants to date and have sexual relations with women. He lives in supported living, partly due to his history of behaving inappropriately towards women. Evidence provided to the court at first instance suggested that JB has capacity to consent to sexual relations according to the test as generally understood (because he understands the mechanics of the act and the basic risks involved). JB did not, however, understand the concept of ensuring that his intended partners also consented.  The factual matrix articulates in very stark terms a situation with which some Court of Protection practitioners will be familiar.

One of the two clinical psychologists who assessed JB described JB as “visibly shaken at the idea that a partner would be able to withdraw consent […] He thought that a woman who had got drunk at a party and had sex with a man was ‘fair game’ for anyone else” (at §14). The clinical psychologist found that JB lacked the ability to understand or weigh the importance of ensuring his partner was consenting as a pertinent factor in his decision making and concluded that on that basis he lacked capacity to consent to sexual relations (at §15). The clinical psychologist subsequently changed her position following further explanation of the information relevant to the decision to consent to sex (the mechanics of the act, the fact that health risks were involved, and the risk of pregnancy). On this basis, the psychologist found that JB did have capacity to consent to sexual relations (at §16).

The decision

As a general point, Baker LJ reinforced the fact that ‘the “relevant information” must be tailored to the facts of the case’(at §42), a reminder that the useful lists of relevant information in the case law are never more than guides to an assessment of capacity, and that the information relevant to the particular decision must be properly identified in each case.

As many Court of Protection practitioners will be aware, section 27 of the Mental Capacity Act 2005 (“the Act”) prohibits the Court of Protection from making any decision consenting to sexual relations on behalf of another person.  As Baker LJ points out in the judgment, this is the only reference to sexual relations within the Act itself.

After a detailed analysis of the case law leading up to this point, Baker LJ came to the conclusion that the essence of the case lay in the need to distinguish two separate questions, first considered in the case of X City Council v MB and others [2006] EWHC 168 (Fam): (1) whether someone has the capacity to consent to sexual relations; and (2) whether someone has the ability to choose whether or not to engage in sexual activity.  As he said, in the case law following Re MB, ‘the analysis has focused on the first question to the exclusion of the second.’ (§93)

Baker LJ went on to clarify the distinction at paragraphs 93-94:

‘The word “consent” implies agreeing to sexual relations proposed by someone else. But in the present case, it is JB who wishes to initiate sexual relations with women. The capacity in issue in the present case is therefore JB’s capacity to decide to engage in sexual relations. In my judgment, this is how the question of capacity with regard to sexual relations should normally be assessed in most cases.

When the “decision” is expressed in those terms, it becomes clear that the “information relevant to the decision” inevitably includes the fact that any person with whom P engages in sexual activity must be able to consent to such activity and does in fact consent to it. Sexual relations between human beings are mutually consensual. It is one of the many features that makes us unique. A person who does not understand that sexual relations must only take place when, and only for as long as, the other person is consenting is unable to understand a fundamental part of the information relevant to the decision whether or not to engage in such relations’

At paragraph 99, he reiterated that

‘the information which a capacitous individual must take into account in deciding whether to engage in sexual relations includes whether or not the other person is consenting’.

Baker LJ went on to set out a list of information which may be relevant to the decision to engage in sexual relations (at §100):

In summary, when considering whether, as a result of an impairment of, or disturbance in the functioning of, the mind or brain, a person is unable to understand, retain, or use or weigh information relevant to a decision whether to engage in sexual relations, the information relevant to the decision may include the following:

(1) the sexual nature and character of the act of sexual intercourse, including the mechanics of the act;

(2) 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;

(3) the fact that P can say yes or no to having sexual relations and is able to decide whether to give or withhold consent;

(4) that a reasonably foreseeable consequence of sexual intercourse between a man and woman is that the woman will become pregnant;

(5) that there are health risks involved, particularly the acquisition of sexually transmitted and transmissible infections, and that the risk of sexually transmitted infection can be reduced by the taking of precautions such as the use of a condom.

Baker LJ acknowledged that ‘the question whether the information relevant to the decision whether to engage in sexual relations must always include all of the matters identified in the previous paragraph’ is ‘clearly a matter of considerable importance’ (at §101-2).

Understandably, if frustratingly, he declined to answer it, as it did not directly arise on the present appeal, and as he observed:

The summary of the case law set out above illustrates that on several occasions judicial obiter dicta in this difficult area of the law have been initially followed by other judges, only to be rejected in later cases after hearing further argument. For that reason, it would be prudent for this Court to refrain from commenting until it has an opportunity to hear full argument on the point in a case where the issue arises on the appeal.’

Finally, in respect of (2) above Baker LJ clarified that P does not need to understand the full criminal consequences of engaging in sexual relations but does need to understand that s/he should only have sex with someone who is able to consent and gives and maintains consent throughout (at §106). This analysis is not altered by the fact that some capacitous individuals choose to ignore that a person is not providing his or her consent (at §107).

Brief practical points

This is clearly a significant Court of Appeal judgment which will be utilised by many practitioners in the years ahead. It is worth reviewing the judgment in full.

If you are a junior practitioner wishing to obtain a solid grounding in the case law relating to capacity to consent to sexual relations, this is the case for you. Paragraphs 21 – 78 set out in detail nearly 15 years of case law relating to this issue, and they are certainly worth a read.

Despite Baker LJ’s refusal to engage in this issue specifically, it would be unwise for any legal practitioner to ignore a Court of Appeal-approved numbered list of relevant factors. It is anticipated that this list will be used many times over in the years to come. Anyone doing so should remember Baker LJ’s express confirmation that the relevant information must be tailored to the facts of each case and proceed accordingly.

Final musings

From a societal perspective, it is uncomfortable, to say the least, that the test for capacity should wholly disregard an individual’s ability to understand an intended partner’s consent, and Baker LJ was clearly considering this situation with larger societal concerns in mind, as seen for instance in his comments at §98:

‘striking a balance between the principle that vulnerable people in society must be protected and the principle of autonomy is often the most important aspect of decision-making in the Court of Protection. But I do not accept the argument that including an understanding of the consensuality of sexual relations as part of the information relevant to the decision about the capacity regarding sexual relations amounts to an unwarranted infringement of JB’s personal autonomy or of his rights. Insofar as it is a restriction of his autonomy and his rights, it cannot be described as discriminatory because it is a restriction which applies to everybody, regardless of capacity. As social beings, we all accept restrictions on our autonomy that are necessary for the protection of others. No man is an island. This principle is well recognised in the European Convention on Human Rights. For example, the rights in Article 8 are not absolute and must be balanced against other interests, including the rights of others. Although the Court of Protection’s principal responsibility is towards P, it is part of the wider system of justice which exists to protect society as a whole. As I said at the outset of this judgment, the Mental Capacity Act and the Court of Protection do not exist in a vacuum. They are part of a system of law and justice in which it is recognised that sexual relations between two people can only take place with the full and ongoing consent of both parties.’

From a strictly legal perspective, however, there are some significant consequences that may arise from this case.

Does Baker LJ’s analysis at paragraph 93 (as quoted above) discard the previously standard approach of considering P’s capacity to consent to sex, save in a limited number of cases? If so, when will it be appropriate to consider capacity to consent, rather than capacity to engage?

The suggestion that capacity to consent (as opposed to engage) is the appropriate test when sexual relations are ‘proposed by someone else’ makes complete intellectual sense but may be harder to deal with on the ground. There may be cases where a declaration as to P’s capacity to consent is appropriate, e.g. when P is married to a specific individual and it is not envisaged that P seeks to engage in sexual relations with others (such as in London Borough of Tower Hamlets v NB [2019] EWCOP 17 and [2019] EWCOP 27). In other cases, especially where young adults want to engage in a full social life with a wide range of their peers in a wide range of scenarios (which may involve both propositioning and being propositioned) it may be more difficult.

Further, if the distinction lies within P’s desire to initiate sexual relations, this may lead to complications. Logically, it must be possible for P to have capacity to consent to sex (i.e. if someone approaches them and wants to have sex, they can agree to that act) but lack capacity to engage in sexual relations: this appears to be the position JB is in, on the evidence cited in the judgment. But if so, how can a care plan practically cover this? And what happens if P consents to proffered sex, but mid-way through the act, the other person withdraws his or her consent?

Finally, what about the “person-specific” approach? Baker LJ refused to comment on the extent to which P’s circumstances and characteristics should be incorporated according to the facts of the particular case, and to what extent the list outlined must apply to all cases.

Legal practitioners (and other professionals working with P on the ground) will need to grapple with these issues moving forward. It is yet to be seen whether this judgment will serve to clarify or further complicate the law in this area.