Enable Law acting for JB through his litigation friend the Official Solicitor in this landmark case.
The Supreme Court has determined the Official Solicitor’s appeal against the conclusion of the Court of Appeal in A Local Authority v JB[2020] EWCA Civ 735.
Judgment was given by Lord Stephens but with unanimous agreement of Lord Briggs, Lady Arden, Lord Burrows and Lady Rose.
The Supreme Court acknowledged that the appeal raised issues of profound significance not just for JB but for anyone suffering from an impairment or disturbance in the functioning of the mind or brain, potentially rendering them unable to make a decision for themselves in relation to them having sexual relationships even should the other person have capacity to and consent to sexual relations.
The court further allowed two intervenors on the basis of the widespread public importance of the issues. The first, Respond, is a charity supporting and enabling young people and adults with learning disabilities and autism. The second was the Centre for Women’s Justice, whose aim is to challenge male violence against women and girls.
The central issue being considered was whether the information relevant to a person’s decision to have sexual relations includes the fact that the other person must be able to consent to sex and indeed consents throughout. It followed that if this was relevant information, then in order for a person to be deemed to have capacity to make a decision in relation to having sex he or she must be able to understand that information and use and weigh that information. If not able to do so, then P will be unable to have any sexual relationships and no one can consent to sexual relations on their behalf.
The court further considered the Court of Appeal decision by Baker LJ that in fact the correct decision to be made was in fact not capacity to “consent to” sex but capacity to “engage in” sexual relations
Background
JB is a 37 year old man with a diagnosis of Autistic Spectrum Disorder combined with imparted cognition. He lives in supported living with a highly restrictive care plan. JB has long expressed a desire to be normal and have both a romantic and sexual relationship. Much has been made in proceedings that JB had exhibited behaviours to women that he was attracted to that were considered to be inappropriate, including inappropriate texts and approaches. It was generally agreed that it was the nature and degree of JB’s autism that accounted for his inappropriate sexual behaviour and his difficulty in understanding and interpreting the other.
The Appeal
The Official Solicitor on behalf of JB appealed:
(a) the reframing of the decision;
(b) that it was not the purpose of the MCA to ensure public protection;
(c) that applied a heightened test in the context of the criminal justice system;
(d) that it would alter the test for capacity to consent to marriage;
(e) that appropriate alternative solutions existed to protect P from harm, and;
(f) that the imposition of a heightened test was inconsistent with Article 8 ECHR and the UN convention on Rights of People with Disabilities.
The relevant information
Lord Stephens started by making reference at paragraph 41 to the relevance and significance of the factual circumstances in each case:
“if under section 1(4)(a) MCA the reasonably foreseeable consequences of JB deciding to engage in or to consent to sexual relations, when the other person is unable to consent or does not consent throughout the sexual activity, is that JB could harm himself and/or the other person, then that would be information relevant to the decision. If it is, then under section 3(1)(a) MCA, JB should be able to understand that information and under section 3(1)(c) he should be able to use or weigh it as part of the decision-making process.”
He further states at paragraph 70:
“The court must identify the information relevant to the decision “within the specific factual context of the case””in this way if the matter for decision relates to sexual relations, but does not relate to a particular partner, time or place, so that it is non-specific, as in this case, because JB wishes to “engage in” or “consent to” sexual relations with any woman, then the non-specificity of the matter will inform the information which is relevant to the decision”.
But at paragraph 71-2 he suggests that a general and non-specific basis is not the only appropriate formulation in respect of sexual relations as, ““the matter” can be person-specific where it involves, for instance, sexual relations between a couple who have been in a long-standing relationship where one of them develops dementia or sustains a significant traumatic brain injury. It could also be person-specific in the case of sexual relations between two individuals who are mutually attracted to one another but who both have impairments of the functioning of their minds.”
Lord Stephens explores whether there can there can be tailoring of the relevant information depending on the characteristics of the other person or the reasonably foreseeable consequences of a decision and acknowledges that Baker LJ used the phrase “may” when listing the information potentially relevant to the decision, but notes that in JB’s case that it was not necessary to consider whether the information can be tailored. We assume that this will be a matter for further case law as the courts start to apply this judgment.
The relevant question
The Official Solicitor’s argument that the wording of section 27(1)(b) specifically referred to “consenting to sexual relations” and as such there was no scope to reformulate the decision to be made within section 2(1) was dismissed, with the court concluding that the wording of section 2(1) MCA is open and flexible, so as to accommodate any matter in relation to which an issue arises as to whether P is unable to make a decision for himself. The Supreme Court reaffirmed the Court of Appeal’s formulation concluding that it better captures the nature of the issues “in a case such as this” thus referring explicitly to Baker LJ’s distinction between P as the instigator rather than recipient of sexual relations. Despite the court however making it clear that it is not bound by section 27 it does not address the question as to whether it follows that a best interests decision can be made in this respect
Public Protection
Again, this argument was dismissed with the court making clear that “The information relevant to the decision includes information about the “reasonably foreseeable consequences” of a decision, or of failing to make a decision, which consequences are not limited to the consequences for P: see para. 73 above. The consequences for other persons or for members of the public are therefore a part of the information relevant to the decision” (paragraph 92). The Supreme Court fully endorsing the role of the Court of Protection as being within a wider system of justice that exists to protect society as a whole.
Higher test
The argument that the concepts of consent as set out by the Court of Appeal were far too extensive and nebulous for those with mental impairments to understand and would not be the sort of refined analysis expected of a person considered to be of full capacity. The very real complexities surrounding the criminal law concept of consent were cited. The Supreme Court disagreed that this is a complex test only conceding that the wording “must have capacity to consent” be substituted for “must be able to consent“.
Difference with criminal law
The Supreme Court acknowledged that there are sound policy reasons why the civil and criminal law test for capacity should be the same but that it remained possible for the civil law to impose a different and more demanding test of capacity if there were public policy reasons, namely the protection of P and others. It was agreed that this created a difference to criminal law but that it was not impermissible because it was capable of being identified and accommodated in any criminal trial.
Breach of Article 8 ECHR
This was not an argument that was advanced either before Roberts J or in the Court of Appeal, but on the facts of the case, rather than incompatibility, it was argued by the local authority that there was no breach on the basis that steps were being taken to support him in gaining capacity.
Implications
This judgment will undoubtedly have a profound impact upon the ability of a significant sector of society to have an intimate sexual relationship. The extent of the group of people that this will encompass is currently unclear given the comments suggesting that the relevant information could be tailored if not relevant to the individuals. However, there is little doubt that there will be a large number of men and women who are currently enjoying a sexual relationship or aspire to do so, who simply will not have this option in the future.
Moreover, the test goes beyond an in principle agreement by P that the other party must consent. It requires P to demonstrate both an understanding of, and an ability to, weigh and balance the issues including the other person’s capacity (because that must fall within ability) to consent to sex and an understanding in advance of any such situation arising of the other person’s actual consent in word and deed throughout the act.
Many cases are currently stayed pending this judgment, but in a judgment handed down earlier this year Cobb concluded that a young woman (HD) lacked capacity to engage in sexual relations. He reluctantly came to this conclusion based on the test laid down in JB. But for the expansion of the relevant information HD would have been found to have capacity to have a sexual relationship. HD was in a relationship that she wanted to develop as any young person into an intimate one. The expert in that case raised concerns abut the abstract nature of the information that those with disabilities are now in a substantially disadvantaged position.
What has yet to be developed is how this test is going to applied on the ground, whether a forensic risk assessment will be necessary to establish P’s capacity in this domain and what quality of evidence will be necessary.
Of further significance will be the importance of the principle of s 1(3) “A person is not to be treated as unable to make a decision unless all practicable steps to help him to do so have been taken without success”. In this context, when trying to obtain scarce psychological resources for those who may struggle and in particular those who struggle to understand social cues and like JB admit that they struggle.
Both the Court of Appeal and the Supreme Court have been at pains to emphasise the balance between empowerment and protection but this does seem a significant step in expanding the role of the Court of Protection both in the lives of individuals and also within society as a whole.
