A Local Authority v JB

Capacity under the Mental Capacity Act 2005 is decision-specific. The court must identify the matter, determine whether the person can decide it, and then ask whether any inability is caused by an impairment or disturbance of the mind or brain.

For sexual relations, the matter should normally be framed as deciding whether to engage in them. Relevant information includes that the other person must be able to consent and must give and maintain consent throughout. Reasonably foreseeable consequences for other people, as well as for the person assessed, may be relevant.

The information and reasoning demanded must remain practical and fact-sensitive. A potentially incapacitous person should not be required to envisage consequences or undertake analysis beyond that ordinarily expected of a person with capacity.

JB had autism and brain damage and wished to initiate sexual relations with women. Expert evidence indicated that he could not understand or weigh whether another person was able to consent, was consenting, or could withdraw consent.

The Court of Protection declared that JB had capacity to consent to sexual relations: [2019] EWCOP 39. The Court of Appeal allowed the local authority's appeal, reformulated the decision as whether to engage in sexual relations, set aside the declaration, made an interim declaration that there was reason to believe JB lacked capacity, and remitted the matter: [2020] EWCA Civ 735.

The central issue before the Supreme Court was whether information relevant to deciding to engage in sexual relations includes the requirement that the other person must be able to consent and must give and maintain consent throughout.

1. Disposition. Lord Stephens, with whom Lord Briggs, Lady Arden, Lord Burrows and Lady Rose agreed, dismissed the appeal. The matter remained remitted to the Court of Protection for reconsideration. A final declaration of incapacity was inappropriate because the relevant information had not been fully considered or analysed at first instance.
2. The statutory test. Section 2(1) of the Mental Capacity Act 2005 supplies the single test of capacity. The court first asks whether the person is unable to decide the particular matter. It then asks whether that inability is caused by an impairment of, or disturbance in the functioning of, the mind or brain. Sections 2 and 3 describe and explain that test rather than establishing additional freestanding tests. All practicable steps to assist the person must first have been taken without success under section 1(3).
3. Formulation of the matter. In most cases concerning sexual relations, the matter should be framed as deciding whether to engage in sexual relations. That formulation covers both consenting to activity initiated by another person and initiating activity for which the other person's consent is required. Section 27(1)(b), which prevents anyone from consenting to sexual relations on another's behalf, does not prescribe how the matter must be formulated under section 2(1).
4. Relevant information. Information relevant to deciding whether to engage in sexual relations includes that the other person must be able to consent and must in fact consent before and throughout the activity. The requirement is neither person-specific nor an elevated abstract test. It reflects the consensual nature of sexual activity. Relevant reasonably foreseeable consequences under section 3(4) may include harm to other people and consequences for the person assessed, such as prosecution, imprisonment or retaliatory harm.
5. Context and autonomy. Capacity and relevant information must be evaluated in the particular factual context. Although sexual capacity will ordinarily be assessed prospectively and on a general basis, a person-specific formulation may sometimes be appropriate. The court should not require more extensive foresight or more refined reasoning than ordinarily informs the decisions of people with capacity.
6. Other grounds. Civil and criminal capacity tests need not be identical. The civil test cannot be less demanding, but protection of the person and others may justify a more demanding test under the Act. The statutory scheme was compatible with article 8 ECHR, particularly because section 1(3) requires practicable assistance before incapacity is found. The relevant consent information applies to everyone and therefore creates no separate test for disabled people under article 12(2) of the United Nations Convention on the Rights of Persons with Disabilities.
7. Application. On the available information, JB was unable to decide whether to engage in sexual relations because of his autistic impairment. He could not understand or use and weigh the requirement of the other person's continuing consent. The Court of Protection nevertheless had to reconsider the evidence before making any final declaration.

1. United Kingdom Supreme Court: The court unanimously dismissed JB's appeal in A Local Authority v JB [2021] UKSC 52. It upheld the remittal because the Court of Protection had not fully considered the relevant information.
2. Court of Appeal: The local authority's appeal was allowed in [2020] EWCA Civ 735; [2021] Fam 37. The declaration of capacity was set aside, an interim declaration was made under section 48 of the Mental Capacity Act 2005, and the matter was remitted.
3. Court of Protection: Roberts J declared under section 15 of the Mental Capacity Act 2005 that JB had capacity to consent to sexual relations: [2019] EWCOP 39; [2020] 1 WLR 1.