A Local Authority v JB

The Supreme Court dismissed the appellant's challenge. The court held that, for the purposes of the Mental Capacity Act 2005 (MCA), the correct formulation of the "matter" to be assessed is whether the person wishes to "engage in" sexual relations and not merely whether they can "consent to" them. Accordingly the information relevant to that decision under section 3(1)(a) MCA includes that any sexual partner must be able to consent and gives and maintains consent throughout. If P cannot understand, retain or use and weigh that information as required by section 3(1) MCA, and the limitation is caused by an impairment or disturbance of the mind or brain, then P lacks capacity under section 2(1) MCA.

The court applied and explained key statutory provisions including sections 1, 2 and 3 and the excluded decision rule in section 27(1)(b) MCA, and concluded that reasonably foreseeable consequences for others are part of the information relevant to the decision. The court rejected arguments that this approach impermissibly imports criminal-law tests, that it is incompatible with article 8 ECHR or that it breaches obligations under the UNCRPD. The matter was remitted to the Court of Protection for further factual enquiry before any final declaration is made.

Background and parties: The local authority commenced Court of Protection proceedings seeking declarations about JB's capacity in various matters, including whether he had capacity to have sexual relations. JB (by his litigation friend) appealed to the Supreme Court after the Court of Appeal reversed the first-instance declaration that he had capacity.

Nature of the application: The local authority sought declarations as to JB's capacity. The principal issue before the Supreme Court was whether, for the purposes of the MCA, the information relevant to the decision to have sexual relations includes that the other person must be able to consent and gives and maintains consent throughout.

Procedural posture: First instance: Roberts J ([2019] EWCOP 39) concluded JB had capacity. Court of Appeal ([2020] EWCA Civ 735) allowed the local authority's appeal and set aside the declaration. Permission to appeal to the Supreme Court was granted and the appeal was heard on 15 July 2021.

Issues framed:

• How should the "matter" be formulated under section 2(1) MCA in relation to sexual relations ("consenting to" v "engaging in")?
• What information is "relevant to the decision" under section 3(1)(a) and does it include the other person's ability to consent and the need for continued consent?
• Whether the Court of Appeal's approach impermissibly diverged from criminal law or conflicted with article 8 ECHR or the UNCRPD.

Court's reasoning (concise): The court held that the MCA's decision-specific test permits formulation of the matter as the decision to "engage in" sexual relations. Within the specific factual context of such a decision, the information relevant to that decision may and ordinarily does include that any sexual partner must be able to consent and must in fact consent before and throughout the activity. The court emphasised the statutory principles in section 1 (presumption of capacity, taking all practicable steps, and respect for unwise decisions) and the requirement in section 3(4) to include reasonably foreseeable consequences (which can extend to consequences for others) when identifying relevant information. The court rejected submissions that this approach improperly imported criminal-law concepts, that it was disproportionate under article 8 ECHR, or that it breached UNCRPD obligations. Applying the statutory test to the available evidence, JB lacked the required understanding and ability to use and weigh the information because of his autism; however, because the facts had not been fully explored below the court remitted the matter to the judge for further factual enquiry before a final declaration.

Appeal dismissed. The Supreme Court held that the correct formulation of the matter under section 2(1) MCA is whether P wishes to engage in sexual relations and that the information relevant to that decision (section 3(1)(a) and 3(4)) includes that any sexual partner must be able to consent and gives and maintains consent throughout; because JB could not understand or use and weigh that information as a result of an autistic impairment, he lacked capacity under section 2(1) MCA. The case was remitted to the Court of Protection for further factual consideration before any final declaration is made.

First instance: Roberts J, Court of Protection ([2019] EWCOP 39) — declaration that JB had capacity to consent to sexual relations. Court of Appeal: appeal allowed, declaration set aside, interim declaration under section 48 MCA that there was reason to believe JB lacked capacity ([2020] EWCA Civ 735). Supreme Court: permission granted 13 April 2021; appeal dismissed ([2021] UKSC 52) and matter remitted to the judge for further factual enquiry.