A Local Authority (Respondent) v JB (by his Litigation Friend, the Official Solicitor) (Appellant) [2021] UKSC 52
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**A Local Authority (Respondent) v JB (by his Litigation Friend, the Official Solicitor) (Appellant) [2021] UKSC 52** was an appeal to the Supreme Court from the Court of Appeal concerning the test for capacity to engage in sexual relations under the Mental Capacity Act 2005. The Supreme Court unanimously dismissed the appeal.
JB, a 38-year-old man with epilepsy-related brain damage and Asperger’s syndrome, had been living in supported residential placement since 2014 subject to extensive restrictions on his contact with the community. He had a long history of inappropriate sexual behaviour towards women, including targeting vulnerable women, becoming fixated on particular individuals, and making sexually aggressive advances. Expert evidence established that JB understood the mechanics of sexual relations and his own capacity to consent or refuse, but he had a marked deficit in recognising whether others were consenting. When assessed by Dr Thrift, a consultant clinical psychologist, JB stated that once consent was given a woman could not withdraw it mid-act because “you’re already doing what you need to do”. He also told her that a woman who had drunk enough at a party would be “fair game”. Dr Thrift concluded that JB’s autism meant he could not tell how women were thinking or feeling and that he lacked understanding of the need to ensure a partner was consenting. Dr Peters assessed JB as posing a moderate risk of sexual offending to women, and Dr Thrift considered the risk would be high if he were unsupported in the community. JB’s stated priority was to obtain a woman for sex, which he sought on a daily basis, and experts advised that treatment to ameliorate his risk was unlikely to succeed without increased motivation on his part.
Roberts J at first instance had held that the information relevant to a decision to consent to sexual relations did not include whether the other person was able to consent and did in fact consent. She therefore declared that JB had capacity to consent to sexual relations. The Court of Appeal allowed the local authority’s appeal, holding that the correct formulation of the decision was whether to “engage in” rather than “consent to” sexual relations, and that when expressed in those terms the relevant information inevitably included the fact that the other person must be able to consent and must give and maintain consent throughout. The court set aside the declaration and remitted the matter for further consideration in light of supplemental evidence.
JB appealed with permission granted by a panel of the Supreme Court. Two interveners, Respond and the Centre for Women’s Justice, were permitted to file written submissions addressing the public importance of the issues.
JB’s principal ground was that the Court of Appeal had erred in recasting “the matter” for decision as “engaging in” sexual relations rather than “consenting to” such relations. He relied on section 27(1)(b) of the MCA, which provides that nothing in the Act permits a decision on “consenting to have sexual relations” to be made on behalf of a person lacking capacity, and submitted that this provision prescribed the formulation of the matter under section 2(1). Lord Stephens rejected this argument. Section 27 identified certain decisions so personal that no one could take them on behalf of an incapacitous person; it did not define or control the matter about which a person’s capacity fell to be assessed under section 2(1). The wording of section 2(1) was open and flexible so as to accommodate any matter in relation to which capacity was in issue. The Supreme Court agreed with the Court of Appeal that formulating the matter as engaging in sexual relations better captured the nature of the issues where the person wished to initiate relations rather than consent to relations proposed by another. That formulation embraced both a person’s capacity to consent to relations initiated by another and their capacity to understand that when initiating relations the other party must be able to consent and must in fact be consenting throughout. The formulation of engaging in sexual relations was how capacity in this area should normally be assessed in most cases.
JB further contended that even if the matter was correctly formulated as engaging in sexual relations, the information relevant to the decision did not include the other person’s capacity to consent and actual consent. He argued that this inappropriately extended the requisite information to protect the public rather than the person lacking capacity, which was not the purpose of the MCA, and that such protection was the province of the criminal law or of sexual risk orders. Lord Stephens disagreed. The information relevant to a decision included information about the reasonably foreseeable consequences of deciding one way or another or of failing to decide, and those consequences were not limited to consequences for the person lacking capacity but extended to consequences for others. As a public authority under section 6 of the Human Rights Act 1998, the Court of Protection had an obligation not to act incompatibly with Convention rights, and that obligation extended to the rights of others. The Court of Protection’s principal responsibility was towards the person lacking capacity, but it was part of the wider system of justice which existed to protect society as a whole. By including in the relevant information the reasonably foreseeable adverse consequences for both the person and for members of the public, the court under the MCA in practice protected members of the public. The protection afforded by the criminal justice system or by a sexual risk order could not detract from that protection. The court rejected the submission that the purpose of the MCA was confined solely to the protection of the person lacking capacity.
JB also argued that including the other person’s consent in the relevant information impermissibly made the test person-specific, contrary to the established line of authority that capacity to consent to future sexual relations could only be assessed on a general and non-specific basis. Lord Stephens rejected this contention. The statutory test was decision-specific. In this case the matter did not relate to sexual relations with any particular person but required a generalised forward-looking evaluation of JB’s capacity to have sexual relations with any woman. The inclusion of the consent of the other in the relevant information did not introduce the specific characteristics of any individual but reflected the consensual nature of all sexual activity. It was therefore not person-specific. However, the court emphasised that the position could be different in other cases. For example, the matter could properly be person-specific in the case of sexual relations between a couple in a long-standing relationship where one developed dementia, or between two individuals who were mutually attracted but both had impairments. The information relevant to the decision fell to be identified within the specific factual context of each case.
JB submitted that requiring understanding of the other person’s consent set the bar too high because the concepts involved were too extensive and nebulous for persons with mental impairments to grasp, and that this amounted to setting them up to fail. Lord Stephens disagreed. A potentially incapacitous person was simply required to understand that the other person must be able to consent and does in fact consent throughout. This did not involve the sort of refined analysis that typically informed the decision to engage in sexual relations made by a person of full capacity. The only refinement the Supreme Court made to the Court of Appeal’s summary of the relevant information was to substitute “must be able to” for “must have capacity to” in describing the other person’s position. Subject to that change, the concepts were neither too nebulous nor too refined, nor did they amount to an elevated abstract test requiring detailed understanding of the criminal law of consent.
JB further argued that to require such understanding imposed a discriminatory cerebral analysis on the potentially incapacitous, because sexual activity and decisions about engaging in it were largely visceral for persons of full capacity, owing more to instinct and emotion than to analysis. Lord Stephens rejected that submission. Amongst the matters which every person engaging in sexual relations must think about was whether the other person was consenting. If that was properly viewed as cerebral or as involving analysis, a decision to engage in sexual relations was necessarily cerebral or analytical to that extent.
JB contended that the Court of Appeal’s test created an impermissible difference with the criminal law, because there was no scope in that context for such a requirement, the criminal law being concerned only with the understanding of the complainant about matters directly relevant to their own autonomy. Lord Stephens acknowledged that it was in principle desirable, though not necessary, that the same test for capacity should apply in both civil and criminal contexts, and that there were sound policy reasons for consistency, since both contexts served to protect the vulnerable from abuse and exploitation. However, countervailing and overriding policy reasons supported the clarification of the test under the MCA, namely the protection of others and of the person lacking capacity. The civil law test could not impose a less demanding test than the criminal law but it remained possible for it to impose a different and more demanding test. The fundamental responsibilities of the Court of Protection included the duty to protect the person from harm, and the requirement that the person should understand that they should only have sex with someone who was able to consent and gave and maintained consent throughout protected both participants from serious harm. On that ground alone any differences between the civil and criminal law tests were not impermissible. In any event the primary purpose of the criminal law was prosecution and punishment by the state, whereas in civil proceedings under the MCA the courts balanced promotion of autonomy with protection from harm while having regard to the rights of others. These differences in purpose and function meant it was permissible to adopt different tests in the two contexts. Whether the clarification resulted in any actual differences was best left to be decided on the facts of individual criminal cases and might turn on the particular offence in question. Lord Stephens made a number of obiter observations about potential differences or similarities, noting for example that if the person lacking capacity was a complainant in criminal proceedings the primary issue would relate to capacity to consent to rather than to engage in sexual relations, and that the capacity to consent was concerned with the complainant’s understanding of matters relevant to their own autonomy, not those relevant to the autonomy of the alleged perpetrator.
JB raised a late argument that the test was inconsistent with article 8 of the ECHR, though it was unclear whether this was advanced as a breach on the facts or as a construction point. Neither argument had been raised below. Lord Stephens refused permission to raise the compatibility argument, holding that the operation of the MCA was compatible with article 8 because it took into account not only the interests of the person lacking capacity but also those of others and the public, and because section 1(3) ensured that interference was proportionate by requiring all practicable steps to be taken to help the person make the decision. He also refused permission to raise a factual breach argument, noting that no findings capable of supporting such an assertion had been made and that the court lacked a complete picture of what was happening on the ground, including the steps being taken to support JB to gain capacity and to develop safe relationships. In any event any interference would be in accordance with law and in pursuit of the legitimate aims of protecting the health of JB and others, protecting the rights and freedoms of others, and preventing disorder or crime, and there had been no factual findings on proportionality.
Finally, JB contended that the test was inconsistent with article 12(2) of the UN Convention on the Rights of Persons with Disabilities, which provides that persons with disabilities enjoy legal capacity on an equal basis with others in all aspects of life. He submitted that the Court of Appeal’s approach created a separate standard or test of capacity for people with disabilities which the treaty obligation should preclude. Lord Stephens rejected this. There was no separate standard or test for persons with disabilities. The fact that the other person must be able to consent and must in fact consent applied to everyone in society. In any event the Supreme Court had recently rejected the contention that it should examine whether the United Kingdom had violated provisions of an unincorporated international treaty.
Lord Stephens set out in detail the statutory framework under sections 1 to 3 of the MCA. Section 2(1) was the core determinative provision and the single test for capacity, albeit interpreted by applying the more detailed description in the surrounding provisions. That test required the court to address two questions: first, whether the person was unable to make a decision for himself in relation to the matter; second, if so, whether that inability was because of an impairment of or disturbance in the functioning of the mind or brain. The assessment of capacity was decision-specific, and the court was required to identify the correct formulation of “the matter” in respect of which it must evaluate whether the person was unable to decide. That then led to identification of the information relevant to the decision under section 3(1)(a), which included information about the reasonably foreseeable consequences of deciding one way or another or of failing to decide under section 3(4). The court emphasised that the information relevant to the decision must be identified within the specific factual context of each case. Where a decision could have serious or grave consequences it was even more important that the person understood the relevant information. In this case there would be serious or grave consequences for JB’s mental health if he was incarcerated and there could be serious or grave consequences for others if they were victims of sexual assaults or rapes perpetrated by him. On the other hand there should be a practical limit on what needed to be envisaged as reasonably foreseeable consequences so that the notional decision-making process attributed to the person should not become divorced from the actual decision-making process carried out daily by persons of full capacity; to require a potentially incapacitous person to envisage more consequences than persons of full capacity would derogate from personal autonomy. Similarly, the ability to use or weigh information under section 3(1)(c) should not involve a refined analysis of the sort which did not typically inform the decision made by a person of full capacity.
In short, the evaluation of JB’s capacity to decide for himself was in relation to the matter of his engaging in sexual relations, the information relevant to that decision included the fact that the other person must be able to consent and must in fact consent throughout, and on the available information JB was unable to make a decision for himself because of an autistic impairment of his mind; the appeal was dismissed and the matter remitted for reconsideration in light of the judgment.
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