On 24th November 2021, JB, a 38-year-old man, had his private life laid out before strangers in a courtroom, ordered to have 24-hour supervision of his interaction with people and banned from pursuing sexual relations. This is unfortunately the lived reality of persons who are judged to lack capacity after A Local Authority v JB.1 Particularly, the outcome of the case establishes a high threshold for the civil test for capacity to engage in sexual relations, potentially barring numerous mentally impaired individuals from pursuing sexual relations. What was previously regarded by the Court of Protection (‘CoP’) as a ‘fundamental and basic human right’ has been reinterpreted by the Supreme Court as merely a piece of a greater puzzle.2 It seems, rather, that our pursuit of sexual relations is a balancing act between our right to exercise autonomy in our private lives and the protection of others from this exercise of autonomy. The Supreme Court has reinterpreted the test for capacity to engage in sexual relations, successfully achieving an equal standard that ‘applies to everyone in society’.3 Yet, this may not achieve the most equitable solution that many may find more palatable — ‘a gilded cage is still a cage’.4 Saliently, the question thus arises: equity or equality before the law?
Legal Framework and Definitional Clarifications
The analyses, arguments, and recommendations of this case note are limited to the test for capacity to engage in sexual relations. Consequently, the case note will be primarily concerned with sections 1, 2, 3, 4 and 4A of the Mental Capacity Act 2005 (‘MCA’). Section 1 establishes the general framework for the Act, which includes four principles that govern any action under the MCA.5 Sections 2 and 3 outline key factors in assessing capacity. Section 2 imposes a time element, requiring that a person can only lack capacity regarding a matter if ‘at the material time’ they are unable to make a decision for themselves concerning the matter ‘because of an impairment of, or a disturbance in the functioning of, the mind or brain’.6 Section 3 clarifies that ‘a person is unable to make a decision for himself if he is unable […] to understand the relevant information to the decision’.7 Further, he must ‘retain that information’, ‘use or weigh that information as part of the process of making the decision’ ‘or to communicate his decision’.8 Section 4 outlines the best interests principle where ‘an act done, or decision made, under this act for or on behalf of a person who lacks capacity must be done, or made in his best interests.’9 Lastly, this response will incorporate the Court of Protection Rules 2017 (‘the rules’) terminology. Specifically, the term ‘P’ will delineate any person who does, or is alleged to, lack capacity in the circumstances.
This case note will first summarise A Local Authority v JB, including the facts, its progression through the court hierarchy, and the Supreme Court’s judgment (‘the judgment’). Secondly, the legal implications of the judgment will be examined, with a particular emphasis on their relation to the MCA. It will be shown that changing the test has cast the net too wide, generating inequitable results under the MCA. Third, the wider societal implications surrounding JB, including its relationship with the Sexual Offences Act 2003 (SOA), will be scrutinised. It follows then, that by way of conclusion the courts should shift from a system of substituted decision-making to supported decision-making to achieve and uphold the aims of the MCA.
I. Case Summary
The Facts
The matter concerns JB, a 38-year-old man who, as of May 2014, has been living in a supported residential placement. He has suffered from epilepsy throughout his childhood, resulting in significant brain damage, ‘cognitive behavioural regression’,10 and blindness since 2000 (due to tunnel vision he developed as a side effect of drug treatment relating to his epilepsy).11 In 2011, JB was formally assessed to have ‘Autistic Spectrum Disorder, namely Asperger’s syndrome’ (‘ASD’)12 — a lifelong condition that makes it ‘very difficult to teach and learn subtle nuances in social interaction and communication, especially those relating to sexual behaviour’.13
JB’s ASD accounts for his inappropriate sexual behaviours, which are linked with his past aggressive behaviour both at home and school. Expert evidence by Dr Thrift, a consultant clinical psychologist jointly appointed by the local authority and the Official Solicitor, suggests that ‘JB cannot tell how other people are thinking or feeling’.14 Expert evidence concludes that JB has a deficit in ‘using and weighing information as to whether a woman would be giving and maintaining her consent throughout sexual relations’.15
Nonetheless, JB has expressed that he has a strong desire to engage in sexual relations, and his ‘number one priority is to get a woman as a sexual partner’.16 This strong desire has led to ‘inappropriate past and ongoing sexual behaviour’17 which on occasion has turned aggressive.18 Although JB understands all the other relevant information pertaining to engaging in sexual relations, he has difficulty understanding that the other party must consent and continue to consent throughout the sexual activity.19
The Proceedings
From the outset, the Court of Protection held that, pursuant to section 2(1) of the MCA,20 JB’s inability to understand the other party’s need for consent was caused by ‘an impairment of, or a disturbance in the functioning of, his mind or brain’.21 Further, the judge found that ‘the consent of others is not relevant to the question of whether [he], or any other protected party, has capacity to consent to sexual relations’.22 Thus, the court concluded that pursuant to section 15 of the MCA (power to make declarations), ‘JB has capacity to consent to sexual relations’.23
On appeal, the Court of Appeal (‘CA’) unanimously held that the relevant decision was not whether P has the capacity to ‘consent to’ but rather, whether P has capacity to ‘engage in’ sexual relations.24 Thus, the CA found, through a literal reconfiguration of the wording of the test, that the other party’s consent must be included in the relevant information for determining P’s capacity to engage in sexual relations. Given this extra requirement, the Court made an interim declaration under section 48 of the MCA that ‘there is reason to believe that JB lacked the capacity to decide whether to engage in sexual relations’.25
The Judgment
The Supreme Court unanimously dismissed JB’s appeal, upholding the Court of Appeal’s judgment. Lord Stephens concluded that the inclusion of the other party’s consent as relevant information ‘better captures’ the nature of the issue.26 Accordingly, he affirmed the CA’s perspective that the test should be modified from capacity to consent to capacity to engage in sexual relations.27 Further, the scope of relevant information extends to ‘reasonably foreseeable consequences’ of a decision (or of a failure to do so), which includes ‘other persons or for members of the public’.28 He classified protecting not only P, but also protecting members of the public within the ambit of the MCA, as it is ‘part of a wider system of justice which exists to protect society as a whole’.29
II. Legal Challenges
This section will examine the legal changes and challenges that the judgment presents. It will first inspect what changing the test means for potential claimants and how this may pose threats to equity. Secondly, the purpose and ambit of the MCA will be re-examined considering Lord Stephen’s observations. Lastly, as the Supreme Court’s new test deepens the divide between the civil and criminal law tests for capacity, it will be argued that such a distinction is regrettable but inevitable.
Changing the test
The new test for capacity to engage in sexual relations broadens the requirement for P under the MCA to ‘understand the information relevant to the decision’ and to ‘use or weigh that information as part of process of making the decision’.30 More specifically, requiring P to understand that the other party ‘must have the ability to consent to the sexual activity and must in fact consent before and throughout the sexual activity’ has heightened the threshold.31 Notably, this requirement departs from a long line of established cases ranging from IM v LM and others32 to Re AA which formerly reinforced a minimal interventionist attitude from the judiciary.33 Before JB, the general judicial consensus was that the test for capacity to engage in sexual relations was ‘issue specific’ and should be applied on a ‘general and non-specific’ basis.34 Perhaps most importantly, the court in IM recognised that ‘the extent of judicial inquiry’ into P’s ability to use or weigh the relevant information does not require ‘a refined analysis’ requiring substantial scrutiny of the subjective facets of a particular case. Rather, it is a ‘more straightforward decision’, antonymous to ‘complex decision(s)’ such as ‘consent to medical treatment’.35 This case note argues that this subtle, but vital distinction has been blurred in JB. IM corresponds with the court’s opinion in LBL v RYJ wherein the High Court held that ‘it is not always necessary for a person to comprehend all peripheral details’.36 In light of this minimalist trajectory, the JB test introduces a new cerebral requirement that increases the likelihood of a judgment declaring P as lacking capacity to engage in sexual relations. The significance of this change was recognised by Cobb J in Re HD37 concerning whether a woman and her partner had the capacity to engage in sexual relations with each other. Interestingly, the judge acknowledged that had the case been listed ‘several months earlier … [he] would probably have reached the opposite conclusion’.38 Thus, the new test presents an even higher hurdle, making it harder for persons with impairments to pursue their autonomy and sexual freedoms.
Lord Stephens justifies this hurdle by examining how consideration of another’s consent is ‘amongst the matters every person engaging in sexual relations must think about…’ (emphasis added).39 This introduces the normative issue of what should be included in the ‘relevant information’ that must be used and weighed by P. Clearly, the Supreme Court in JB prefers a more equality-focused approach which establishes a clear standard of consent expected from everyone (regardless of their circumstances). Prior to JB, the courts favoured a more simplistic and equitable approach that focused on only the ‘salient information’, since requiring too much information increases the likelihood of P not being able to process it.40 This piece argues that the JB test has decidedly tipped the scales towards equality, despite the clear implications for persons judged to lack capacity. This approach somewhat severs the test from one of the ‘fundamental principles’ of the MCA — which promoted the autonomous decision-making of P.41
However, for the other person’s consent to exist in the test, it must be held to the high standard of section 3(1)(c) requiring P to use and weigh the information in their decision-making. The contrary would render the test ‘hollow’, and only a mere acknowledgement.42 This response argues that such a requirement may be too onerous and demanding. Notably, in Re HD, such concepts were ‘too abstract for her to learn’ and simply ‘beyond her ability’.43 Although it is desirable for the law to treat all persons equally, this principle does not exist in solidarity or without consequences. Tipping the scales too far in one direction encourages the law to ignore the unique circumstances of certain individuals to establish uniform standards. Thus, the normative solution to the issue is inextricably linked to Parliament’s will and the MCA’s purpose.
The MCA and its purpose
Current case law suggests that Parliament’s primary will in enacting the MCA is ‘not to pamper or to nursemaid the incapacitous, rather it is to provide the fullest experience of life and with all its vicissitudes’.44 This also includes the jurisdiction of the courts wherein they must make decisions by standing ‘in the shoes of the person who is unable to make the decision […] [and make] the decision for him’.45 Additionally, it has been suggested that the MCA is framed within two broader social principles: ‘recognition of the right of every individual to dignity and self-determination’ and ‘to protect individuals and safeguard their interests where their individual qualities or situations place them in a particularly vulnerable situation’.46
However, Lord Stephens formalised in JB that the purpose of the MCA is not ‘solely confined to the protection of P’.47 Lincolnshire City Council was concerned with the care worker or P’s potential criminal liability in accessing the services of a sex worker.48 JB has extended this protection to other members of the public at large in the civil context.
It is argued that such an extension proposed by Lord Stephens unnecessarily conflates the MCA’s purpose. One of the MCA’s core principles is that ‘a person is not to be treated as unable to make a decision merely because he makes an unwise decision.’49 This upholds the purpose of maintaining the parity between mentally impaired and non-mentally impaired persons.50 Re AA recognised that the court must not ‘adopt a protective stance’ notwithstanding that P is ‘very likely to make an unwise or risky decision’.51 Persons outside the MCA’s ambit are allowed to make decisions regarding sexual relations with no state intervention until an offence is committed and brought before the criminal court. The ability and freedom to make mistakes should be common to all. Protection of P is only one desideratum in the MCA’s competing interests. It would be dubious for the law, in its pursuit for equality or equity, to establish a state-of-affairs where protecting P means paternalising the role of the courts to the extent that it limits P’s freedom to exercise rudimentary facets of life.
However, this is not to say that the minimisation of harm is a worthless pursuit in of itself. Rather, the current state of the law favours the minimisation of harm over the other purposes of the MCA. The test should be modified to present a more balanced approach. However, before a solution can be formulated, the relationship between capacity in the civil and criminal law must be considered.
Engaging in sexual relations in the civil and criminal contexts
The capacity to engage in sexual relations is governed by different rules in civil and criminal law. Whereas this case note has been concerned with consent and capacity in civil law, criminal law regulates this through the Sexual Offences Act 2003 (‘SOA’).52 Where the civil law prefers an issue–specific test, the criminal law test employs a person–specific situational analysis. Importantly, in criminal law the State must prove that the accused ‘does not reasonably believe that B (the victim) consents,’53 which can be analysed with regard to ‘all the circumstances’.54
However, despite judicial preference for a generalised approach in civil law, courts have changed what is considered relevant information to the decision. In A Local Authority v TZ, Baker LJ observed that in some circumstances, the relevant information must be tailored to the facts of the case.55 This was cited approvingly in JB,56 and was acknowledged as a recognised exception in Re HD.57 This may suggest that difference in the standard of inquest demanded by the civil and criminal tests have somewhat diminished. Nonetheless, Macur LJ in R v GA stated ‘the difference in definition of capacity in the civil and criminal jurisprudence is a difference without distinction’.58 Put simply, their substantive differences are immaterial given that they pursue contrasting, yet complementary normative ends. Where ‘[t]he criminal law bites only retrospectively’, the civil law ‘requires prospective assessment’ that is forward–looking.59 Nonetheless, it does not follow that a difference in promise always necessitates a difference in focus. Idealistically, the civil law test should always be person–specific as that allows the greatest assurance of achieving the right balance for the situation at hand. However, the court in IM has recognised that would require local authorities to conduct a person–specific assessment every time P wanted to engage in sexual relations.60 Thus, the courts must bow to practical limitations.
Yet, the new test in JB introduces a new element that is not found in the SOA. Lord Stephens observed that as a complainant, the legal analysis is not concerned with matters relevant to ‘the autonomy of the alleged perpetrator’.61 As the accused, section 1(1)(c) SOA requires the prosecution to prove that ‘A (the accused) does not reasonably believe that B (the victim) consents’.62 Lord Stephens finds that ‘[a]n accused may have a reasonable belief that the complainant was consenting’63 and in that same situation, they would inevitably have the requisite understanding of information required by the MCA. In short, this new element implicitly exists in the criminal test of sexual consent. It is important to recognise that such an issue was considered in R v B (MA),64 where the Court considered a potential case where the accused had an inability to recognise social cues. The Court ruled that whether this information would be relevant ‘must await a decision on specific facts’.65
It is submitted that there is no disadvantage and that there is ‘obvious desirability that civil and criminal jurisdictions’ should adopt similar tests for capacity in sexual relations.66 This would promote consistency in the law, by equalising the standard applied to persons who stand before the criminal and court of protection, promoting equity (in the sense of fairness) and equality.
Equality and Equity: A shift in focus
Accordingly, the case note proposes a solution focusing on maximising equity and equality within the legal tests for capacity to engage in sexual relations. Firstly, there must be more acknowledgement of the visceral qualities of the issue at hand. Sexual relations are ‘intensely personal interactions’ that are driven ‘as much by instinct and emotion as by rational choice’.67 By denying persons the ability and freedom to engage in sexual relations would be to deprive them of a ‘fundamental human right’.68 Thus, there exist grounds to reframe the test in order to promote positive autonomy (right to private life) rather than negative autonomy (the right not to be sexually assaulted).
Further, a balanced test limits the possibility of the unilateral imposition of State intervention in our private lives. Reliance on protective State intervention should give way to promoting the State facilitating and enhancing vulnerable persons’ autonomy and equality of life. As Justice Mostyn put it,
‘The state is obliged to secure the human dignity of the disabled by recognising that “their situation is significantly different from that of the able-bodied”. Thus measures should be taken “to ameliorate and compensate for [those] disabilities.”’69
Secondly, it is recommended that the courts should uphold the use of a supported decision-making scheme rather than the current substituted decision-making framework. Where substituted decision-making ‘involves someone making decisions on behalf of someone else’, ‘[s]upported decision-making is a process of providing support … to enable them to make their own decisions’.70 A House of Lords Select Committee on the MCA commented that ‘[s]upported decision-making, and the adjustments required to enable it, are not well embedded’ in the legislation.71 Consequently, the Committee argued that ‘[a] fundamental change of attitudes among professionals is needed in order to move from protection and paternalism to enablement and empowerment’.72 This case note argues that more than just a ‘change of attitudes’ needs to be done.73 This right to supported decision-making must be formalised in the letter and spirit of the MCA.
Thirdly, a provision in section 1 of the MCA should be included which guarantees supported decision-making, as it holds substantial normative weight. Munjaz v United Kingdom ruled that when a person’s autonomy is already restricted, ‘greater scrutiny [should] be given to measures which remove the little personal autonomy that is left’.74 Though a matter of ECHR law, this case note argues English common law should aspire to uphold this aim. Lady Hale in Cheshire observed that it is ‘axiomatic that people with disabilities, both mental and physical, have the same human rights as the rest of the human race’.75 This case note argues the Supreme Court erroneously extrapolated JB’s interests in his private life to encompass other people’s best interests. Lady Hale in Aintree University Hospitals NHS Foundation Trust v James held that ‘the preferences of the person concerned are an important component in deciding where his best interests lie’.76 Yet, the law does not currently specify how much weight should be accorded to their wishes and preferences.
The draft Disabled People (Community Inclusion) Bill 2015 (‘LB Bill’) proposed that a requirement should be introduced to section 4 to ‘treat the disabled person’s wishes, feelings and preferences as a primary consideration’77 in best interest decisions. It is argued that the LB Bill erred in limiting the wishes and interests of P to section 4, which only concerns orders of deprivations of liberty. Rather, a provision should be included in section 1 (the MCA’s main principles), thus enshrining the primacy of P’s interests at the heart of the legislation. This will help shift the law’s current climate, where ‘clinical judgments or resource-led decision-making predominate’,78 to one that values and respects P as an equal individual alongside their peers. Naturally, such a principle would be limited to instances that are ‘not irrational … not impracticable … and… not irresponsible’.79
Lastly, the court should grant care workers of P the ability to facilitate their sexual freedom by vetting or establishing consent themselves with potential sexual partners. Series postulates that the MCA’s support principles are framed in the ‘passive voice’ where ‘it is not obvious who must provide this support and what the support should look like’, leaving the clinical assessments or decisions to be made by a professional ‘who has little knowledge of the individual’.80 Thus, greater decision-making power should be given to the care-workers that work with their patients daily. Undoubtedly, such a process would be severely limited to practical considerations. However, non-profit organisations such as ‘The Outsiders Trust’ are peer support and dating clubs that are run by and made for impaired persons.
Further, this would require a change in criminal law. Secretary of State for Justice v A Local Authority examined whether it was legal for P’s care worker to help P access the services of a sex worker. 81 The court ultimately held that pursuant to section 39 of the SOA, care workers would ‘clearly be at risk’ of committing a criminal offence. However, the court considered that care workers who ‘arrange contact between a mentally disordered person and spouse or partner aware that sexual activity may take place would more naturally be creating the circumstances for that activity rather than causing it in a legal sense’.82 Admittedly JB did not have a spouse or partner, but giving JB a chance at pursuing sexual relations through the aforementioned process is more palatable than completely restricting the prospect of sexual relations. Additionally, persons such as HD, who are in relationships, will no longer be deterred from pursuing sexual relations with their partner. If the law were to proceed unchanged, persons like JB will nonetheless have 24-hour supervision by a care worker. The difference is that the care worker’s aim will be to promote negative autonomy rather than positive autonomy.
III. Concluding Remarks
Ultimately, the proposed solution is an opportunity to revisit and reconsider the current state of the law for persons like JB. To the extent that the MCA exists as the law’s best attempt at parity, the courts have adopted an invasive approach that encroaches on rudimentary facets of P’s life. Equity and equality under the law may sometimes exist as competing ideals which result in divergent approaches. However, this case note has established that through practical changes and a change in focus, the law is able to pursue a route that assimilates both standards. As demonstrated, this involves a reconfiguration of the JB test, realignment of the MCA and its purposes, consideration of the civil and criminal laws and changes in the practical application of the MCA. Nonetheless, what is certain is that a concentrated effort can achieve greater equality and equity for all. Lady Hale famously stated that ‘[i]f it would be a deprivation of my liberty […] then it must also be a deprivation of the liberty of a disabled person’.83 So, equity or equality before the law? This case note questions: why not have both?
[1] A Local Authority v JB [2021] UKSC 52.
[2] A Local Authority v JB [2019] EWCOP 39, [2020] 1 W.L.R. 1 [81].
[3] JB UKSC (n 1) [120].
[4] P v Cheshire West and Chester Council and P v Surrey County Council [2014] UKSC 19, [2014] AC 896 [45].
[5] Mental Capacity Act 2005 s 1(2-5) (MCA).
[6] MCA s 2(1).
[7] MCA s 3(1)(a).
[8] MCA s 3(1)(b)-(d).
[9] MCA s 1(5).
[10] JB UKSC (n 1) [14].
[11] ibid [15].
[12] ibid [15].
[13] ibid [21].
[14] ibid [21].
[15] ibid [21].
[16] ibid [23].
[17] ibid [24].
[18] ibid [25].
[19] ibid [33].
[20] MCA s 2(1).
[21] ibid.
[22] JB EWCOP (n 2) [13].
[23] ibid [87].
[24] Re JB (Capacity: Sexual Relations) [2020] EWCA Civ 735 [93].
[25] ibid [110], emphasis added.
[26] JB UKSC (n 1) [90].
[27] JB UKSC (n 1) [83].
[28] ibid [92].
[29] ibid [98].
[30] MCA (n 3) s 3(1)(a)(c).
[31] JB UKSC (n 1) [92].
[32] IM v LM and others [2014] EWCA Civ 37.
[33] A Local Authority v AA [2020] EWCOP 66.
[34] JB EWCA (n 24) [77].
[35] ibid [71].
[36] LBL v RYJ [2010] EWHC 2665 (FAM) [24].
[37] Re HD [2021] EWCOP 15.
[38] ibid [27].
[39] JB UKSC (n 1) [96].
[40] ‘A Local Authority v JB’ (39 Essex Chambers, 24 November 2021) <https://www.39essex.com/cop_cases/a-local-authority-v-jb-3/> accessed 12 July 2022.
[41] London Borough of Tower Hamlets v NB & AU [2019] EWCOP 27 [27].
[42] IM (n 32) [25].
[43] Re HD (n 37) [29], [26].
[44] B v A Local Authority [2019] EWCA Civ 913 [56].
[45] N v ACCG [2017] UKSC 22 [1].
[46] B v A Local Authority [2019] EWCA Civ 913 [35].
[47] JB UKSC (n 1) [92].
[48] Lincolnshire City Council v Mr AB [2019] EWCOP 43 [9].
[49] MCA s 1(4).
[50] Cheshire (n 4) [45].
[51] Re AA (n 33) [47].
[52] Sexual Offences Act 2003 (SOA).
[53] ibid s 4(1)(d).
[54] ibid s 4(2).
[55] A Local Authority v TZ [2013] EWHC 2322 (COP) [55].
[56] JB UKSC (n 1) [84].
[57] Re HD (n 37) [28].
[58] R v GA [2014] EWC Crim 299 [25].
[59] IM (n 32) [48].
[60] ibid [45].
[61] JB UKSC (n 1) [112].
[62] SOA (n 52) s 1(1)(c).
[63] JB UKSC (n 1) [114].
[64] R v B [2013] EWCA Crim 3.
[65] ibid [41].
[66] R v GA (n 58) [18].
[67] Tower Hamlets (n 41) [28].
[68] JB EWCOP (n 2) [81].
[69] London Borough of Tower Hamlets v TB and others [2014] EWCOP 53 [57].
[70] Law Commission, Mental Capacity and Deprivation of Liberty, (Law Com No 222, 2015) para 3.20.
[71] Select Committee on the Mental Capacity Act 2005, Mental Capacity Act 2005: post-legislative scrutiny (HL 2013-2014, 139) para 104.
[72] ibid para 108.
[73] ibid.
[74] Munjaz v United Kingdom [2012] ECHR 1704 (App No 2913/06) [80].
[75] Cheshire (n 4) [45].
[76] Aintree University Hospitals NHS Foundation Trust v James [2013] UKSC 67 [24].
[77] Disabled People (Community Inclusion) Bill 2015 LB Bill cl 4(2).
[78] Select Committee on the Mental Capacity Act (n 71) para 104.
[79] Re S and S; C v C [2008] EWHC B16 (Fam), [2010] WLR 1082 [57].
[80] Lucy Series, ‘Relationships, Autonomy and Legal Capacity: Mental Capacity and Support Paradigms (2015). This article is unpublished but quoted by the Law Commission in their report (n 70).
[81] Secretary of State for Justice v A Local Authority [2021] EWCA Civ 1527.
[82] ibid [49].
[83] Cheshire (n 4) [46].
Derek Qu
LLB (LSE) ’24 and Notes Editor of the LSE Law Review Summer 2022 and 2022-23