Fri, 12 Jun 2020
A Local Authority v JB  EWCA Civ 735: Where next when considering capacity concerning sexual relations?
In A Local Authority v JB  EWCA Civ 735, the Court of Appeal considered an appeal from the well-known judgment of Mrs Justice Roberts ( EWCOP 39) concerning the “relevant information” which a person must be able to understand as part of the functional test for mental capacity contained in Section 3(1) of the Mental Capacity Act 2005. In the specific context of capacity to consent to sexual relations, Mrs Justice Roberts had found that this relevant information did not include “information that, absent consent of a sexual partner, attempting sexual relations with another person is liable to breach the criminal law” .
The headline point to note at the outset is that the Court of Appeal overruled the decision of Mrs Justice Roberts, determining that in relation to:
“a decision whether to engage in sexual relations, the information relevant to the decision may include the following:
- the sexual nature and character of the act of sexual intercourse, including the mechanics of the act;
- the fact that the other person must have capacity to consent to the sexual activity and must in fact consent before and throughout the sexual activity;
- the fact that P can say yes or no to having sexual relations and is able to decide whether to give or withhold consent;
- that a reasonably foreseeable consequence of sexual intercourse between a man and woman is that the woman will become pregnant;
- 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.” [110, emphasis added]
Having provided the headline point, this article will continue by tracing the reasoning of the Court of Appeal with a view to identifying the practical implications of, and questions arising from, this important and challenging decision.
Identifying the Question for Analysis
At the outset, Lord Justice Baker (in a judgment with which Sir Andrew McFarlane P and Lord Justice Singh agreed) described the question facing the Court of Appeal as follows:
“Whether a person, in order to have capacity to decide to have sexual relations with another person, needs to understand that the other person must at all times be consenting to sexual relations.” [1, emphasis added]
This was, as was then stated by His Lordship, a different way in which the case has been addressed by Ms Justice Roberts below and the parties to the appeal in their written submissions:
“… namely whether a person, in order to have capacity to consent to such relations, must understand that the other person must consent.” [2, emphasis in original]
The first two paragraphs, at least for someone outside this particular piece of litigation but otherwise engaged in advising on such matters, begged a number of questions: what is the distinction between capacity to consent to sexual relations and capacity to decide to have sexual relations? How will that distinction be implemented in practice? Even if there is no current case law on capacity to decide to have sexual relations (as also stated by His Lordship at paragraph 2), how will this fit within general principles of capacity established by the Court of Appeal in cases such as PC and another v City of York Council  EWCA Civ 478?
Unpicking the Reasoning of the Court of Appeal
Following his identification of the issue and the principles (to which I will return) at the heart of the case, and recital of the key facts, Lord Justice Baker produces a detailed analysis of the case law on consent to sexual relations, from X City Council v MB and others  EWHC 168 (Fam) to B v A Local Authority  EWCA Civ 913 and the second judgment of Mr Justice Hayden in LB Tower Hamlets v NB and AU  EWCOP 27. Through this analysis, His Lordship establishes that none of the cases to date have addressed the specific issue which the Court of Appeal consider to be before themselves in the present case (beyond a brief mention in X City Council, as appears to be later accepted ). After this clearing of the path, the submissions of the Local Authority and the Official Solicitor are noted. The reasoning of the Court commences at paragraph 91, perhaps easiest to trace in respect of the issues and questions it raises:
- Whilst Lord Justice Baker reaffirmed that, following PC v City of York, capacity is decision-specific , a question arises as to what extent can capacity to engage in sexual relations as defined by the Court of Appeal in JB  really not be person-specific? Particularly if one considers that consent is not a concept that is manifested in a universal manner (i.e. even a simple ‘yes’ can have shades of meaning), to what extent can it be distilled into something against which P’s understanding can reliably be assessed. Is there, in reality, therefore a fundamental conflict between the approach in PC v City of York and JB [ 95, 99]?
- A somewhat troubling distinction is drawn between what is required in terms of P’s understanding regarding consent and “a full and complete understanding of consent in terms recognised by the criminal law” . Lord Justice Baker continues by stating “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” [ibid.]. It might be argued that the latter definition is circular, and the distinction between the two apparent types of consent referenced in  is not adequately explained – what is the definition of consent to be employed if not that as recognised by the criminal law? A further question arises from His Lordship’s subsequent statement that the aim of consent is to “protect both participants from serious harm” [ibid.]. Given one philosophical underpinning of the criminal law commonly recognised is the prevention of “harm”, it is arguably unclear why the analogy with the criminal law is rejected.
- The Court of Appeal draws a distinction between capacity to consent to sexual relations and capacity to engage in sexual relations on the basis that “the word “consent” implies agreeing to sexual relations proposed by someone else” but given it is JB who wishes to initiate sexual relations with women, it is his capacity “to decide to engage in sexual relations” which is in issue . Lord Justice Baker continues by determining that “this is how the question of capacity with regard to sexual relations should normally be addressed in most cases” [, emphasis added]. This, however, begs the question: is it sustainable and practicable to draw a distinction between those who instigate sexual relations and those who otherwise are approached for sexual relations? What if someone is in both positions, with different persons, contemporaneously – could they be capacitous in relation to only one of those prospective sexual partners? And what is meant by “in most cases” – is that based purely on the instigator distinction?
- An unintended consequence of this distinction between capacity to consent to sexual relations and capacity to engage in sexual relations is arguably to create an extension to the powers under the MCA 2005, noting that s27 MCA 2005 only expressly precludes a decision “consenting to have sexual relations” from being taken on behalf of P (as opposed to “engaging in sexual relations” as is now said to be relevant in most cases). To respectfully echo comments made yesterday by Alex Ruck Keene, “it would be very challenging for anyone to take steps here without judicial imprimatur” but it appears to be a question for the Court of Protection moving forward to resolve with relative urgency.
- What is the relevant information? As noted above, the list of relevant information was caveated by “may include” , with the question of whether the list of relevant information must be examined in all assessments of P’s capacity to make decisions as to engaging in sexual relations subsequently being described as “a matter of considerable importance”  but one which “does not arise on the present appeal” . On the specific issue of consent, it is difficult to see how this could ever not be relevant. On the remaining pieces of relevant information, however, a question mark appears. Such a question mark is particularly prominent when one considers the effect of JB is to “mov[e] on from the previous case law” and recast the question of capacity when considering sexual relations ; to what extent can guidance now be drawn from the previous case law?
A Balancing of Principles
A final question which arises, and strikes at the heart of the matter, is the extent to which it is appropriate to factor in the rights of others, in addition to the traditional competing principles of the autonomy and protection of P, at the stage of interpreting the statutory test for capacity. Alternatively, should that matter arise only at the stage of best interests decision-making which logically follows (e.g. the common question in contact disputes as to how the Article 8 ECHR rights of P’s family members are to be balanced against the risks that P might be adversely affected by contact with them).
The question arises from His Lordship’s comment that “the Mental Capacity Act and the Court of Protection do not exist in a vacuum” , and:
“The Court of Protection is concerned first and foremost with the individual who is the subject of proceedings, “P”. But as part of the wider system for the administration of justice, it must adhere to general principles of law. Furthermore, as a public authority, the Court of Protection has an obligation under s.6 of the Human Rights Act 1998 not to act in a way which is incompatible with a right under the European Convention of Human Rights, as set out in Sch.1 to the Act. Within the court, that obligation usually arises when considering the human rights of P. But it also extends to the rights of others.” [ibid.]
On one hand, it might fairly be noted that acts such as sexual relations are intrinsically tied to others, therefore it would be artificial to exclude the potential impact on others that might arise from an act of otherwise capacitous decision-making. This potential impact can be life-changing and therefore there is also an argument that it is not appropriate to leave any risk of rape or sexual assault to the success or failure of care planning.
On the other hand, it might be argued that matters concerning the balancing of P’s rights with those of others are matters more appropriately dealt with at the level of care planning. In that regard, it is noted that whilst a capacitous “P” in terms of sexual relations would not be subject to the jurisdiction of the Court of Protection in this regard, they may well be subject to the Court’s jurisdiction arising from incapacity to make decisions in other areas (or subject to orders of the High Court exercising its inherent jurisdiction). If so, the TZ-style approach of managing forensic risk to P (and possibly to others) arising from sexual relations through careful care planning in those areas where P does lack capacity (most usually, care) may prove appropriate.
Furthermore, even if one accepts that this third principle is appropriately deployed at the stage of assessing capacity, a question arises as to how it is to operate. Does it operate to assist the court in loading the scales when considering autonomy vs. protectionism? Does it provide a cross-check to the outcome which the court has reached on a preliminary view? To what extent does the third principle require a reconsideration of other areas of decision-making affecting others in which the relevant information is otherwise well-established?
Given the prominence of this principle within the judgment of the Court of Appeal, there is certainly scope for further reflection.
Implementing the Decision in Practice
Regardless of where one stands on the point of principle at the heart of the case, and despite the range of questions raised above in relation to the reasoning underpinning the decision of the Court of Appeal, it remains the case that (unless and until a successful appeal) JB is now the leading authority on capacity concerning sexual relations. The following core points, to be read subject to those questions raised above, are noted:
- Where a question arises as to P’s capacity to make decisions as to sexual relations, and at least they are the ones wishing to initiate sexual relations, the appropriate decision to be assessed is: “whether P has capacity to decide to engage in sexual relations” ; and
- The relevant information to this decision may include those pieces of relevant information identified in the second paragraph above (reproduced from  of the judgment).
For those with cases concerning sexual relations in practice at present, it may well be necessary to redraft precedent letters of instruction, or file addendum letters of instruction where an expert has already been instructed.
While such steps are being taken, it will be interesting to see whether the matter proceeds to the Supreme Court: given the redefinition of both the decision to be assessed and the relevant information, the distinguishing of nearly 15 years of jurisprudence, the uncertainties in application which arise, and the general public importance of the question, a trip to the UK’s apex court would not be surprising.
Jake Rylatt is a Barrister in the public law group at No5 Barristers’ Chambers who regularly appears before the Court of Protection, including in cases concerning sexual relations. Jake was counsel for the applicant in the recent case of SF (Injunctive Relief)  EWCOP 19, a case involving sexual relations and the scope of the Court of Protection’s jurisdiction to make injunctive relief.
JB has been represented throughout his Court of Protection proceedings by Ian Brownhill, Deputy Head of Public Law at No5 Barristers’ Chambers. Ian was led by Parishil Patel QC (39 Essex) and instructed by Karen Jackson of Enable Law and the Official Solicitor.
For the avoidance of doubt, the above does not constitute (nor is a substitute for) legal advice. No liability is accepted for any adverse consequences if reliance is placed upon it.