A recent Court of Protection judgment considers the test for capacity to consent to sexual relations and the need for an understanding of full consent from sexual partners.
JB is a 36 year old man with autism and impaired cognition. He lives in a supported residential placement. He does not have legal capacity and was represented by the Official Solicitor during the proceedings.
JB has been the subject of a local authority care plan since 2014 as a result of his behaviour towards women. This placed significant limitations on his freedoms. He was unable to socialise freely in order to prevent him from behaving in a sexually inappropriate manner towards women. There was concern that his behaviour, if unrestrained, may result in his exposure to the criminal justice system.
Despite these restrictions JB wanted to find girlfriend with whom he could develop a sexual relationship. It was submitted that the local authority care plan ‘represented an unfair and unwarranted interference in his basic rights to a private and family life’.
The key issues for the court were whether JB had capacity to consent to sexual relations and whether he required an awareness that any sexual partner must also be able to consent to such activity.
JB argued that the bar ought to remain at a deliberately low level to avoid discriminating against vulnerable adults with cognitive challenges who should be entitled to exercise a basic function of human existence. It was unreasonable to expect JB to have such an understanding of criminal law.
The decision of Roberts J considered the fundamental test for capacity as set out in the Mental Capacity Act 2005 and refined by subsequent case law. An assessment of capacity to consent to sexual relations requires an application of the ‘act specific test’.
To argue that a full understanding of consent as recognised by the criminal law is an essential component of capacity to have sexual relations is to confuse the nature or character of a sexual act with its lawfulness. To add the requirement for an understanding of parallel and continuing consent in a sexual partner to the capacity test sets the bar too high.
She added that not having that knowledge might result in criminal prosecution but JB was ‘entitled to make the same mistakes which all human beings can, and do, make in the course of a lifetime’.
For JB, it was not for the court now to determine whether or not his aspirations may be capable of realisation. He has a ‘fundamental right to engage in sexual relations’.
It is important to note that there was to be a subsequent ‘best interests’ hearing which may decide that JB lacks capacity to decide whether a particular sexual partner with whom sexual activity is contemplated is a ‘safe’ partner.
The local authority is expected to appeal against the decision and has expressed concerns that leaving the criminal law to regulate sexual conduct in this way will mean that sexual offences will be committed by incapacitated people before the law will intervene to prevent such damaging conduct by the imposition of criminal restrictions.
The decision highlights the tension between allowing an individual to express their basic rights and freedoms with the risk that they may be arrested for pursuing those rights.
It will raise issues for residential care providers when they are risk assessing the possibility of peer on peer sexual relationships and indeed whether they should take steps to prevent it from occurring where there are question marks over the issue of consent.
Written by Nicholas Leigh, associate at BLM