A Local Authority v JB (Rev 2)

Capacity under the Mental Capacity Act 2005 is assessed against the decision actually facing P. In deciding whether to engage in sexual relations, relevant information includes that the other person must have capacity to consent and must give and maintain consent throughout.

This requirement concerns capacity itself, not merely the later exercise of capacity or the criminal law. It does not make the assessment partner-specific or require a full criminal-law analysis. The Court of Protection must balance autonomy with protection of both participants. Whether every listed factor is required in every case was left open.

The local authority applied to the Court of Protection concerning JB, a 36-year-old man with autism and impaired cognition. The parties agreed that he lacked capacity in several areas, but disputed whether he had capacity to decide to engage in sexual relations.

Roberts J held that the information relevant under section 3(1) of the Mental Capacity Act 2005 did not include the need for a sexual partner to be able to consent and to consent in fact. She declared that JB had capacity to consent to sexual relations. The local authority appealed. The central issue was whether mutual and continuing consent formed part of the information relevant to the decision.

1. Appeal allowed. Baker LJ gave the leading judgment, with Singh LJ and Sir Andrew McFarlane agreeing. The declaration that JB had capacity to consent to sexual relations was set aside.
2. Capacity under Part 1 of the Mental Capacity Act 2005 is decision-specific. In this context, the fundamental decision was normally whether to engage in sexual relations, rather than merely whether to consent to relations proposed by another person. The relevant information must be anchored to that decision and its factual context. This followed the approach in PC and another v City of York Council [2013] EWCA Civ 478 and IM v LM and others [2014] EWCA Civ 37.
3. The relevant information may include the sexual nature and mechanics of the act, the health risks, pregnancy where relevant, and the use of precautions. Crucially, it includes that the other person must have capacity to consent and must in fact consent before and throughout the sexual activity. Failure to understand that requirement means failure to understand a fundamental part of the relevant information. This requirement concerns capacity itself and does not make the assessment person-specific.
4. The Court rejected the argument that mutual consent should be excluded because the criminal law deals with non-consensual conduct. The Court of Protection has its own protective responsibilities. The requirement does not impose the full criminal-law test, discriminate against disabled people, or unlawfully undermine autonomy. Sexual decision-making includes thought as well as instinct, and mutual consent protects both participants.
5. The Court did not decide whether every factor listed in the judgment must be included in every case, or how far the information should be tailored to P’s circumstances. Those questions required full argument in an appropriate case. As JB’s evidence on mutual consent had not been fully tested, the matter was remitted to Roberts J for reconsideration, with an interim declaration under section 48 of the Mental Capacity Act 2005 that there was reason to believe JB lacked capacity to decide whether to engage in sexual relations.

1. Court of Appeal (Civil Division). In [2020] EWCA Civ 735, the appeal was allowed. The declaration of capacity was set aside and the issue was remitted for reconsideration.
2. Court of Protection. Roberts J declared that JB had capacity to consent to sexual relations and made interim orders concerning other areas of capacity and his care.