In a previous case note[1] dated 6th March 2023, Mr Qu contended that the Supreme Court’s reformulation of the test for capacity to engage in sexual relations in A Local Authority v JB[2] introduces a higher threshold for individuals who lack capacity (‘P’), or ‘who [are] alleged to lack capacity’ under the Mental Capacity Act 2005 (‘MCA’),[3] to pursue their autonomy — for example, sexual freedoms. Under the MCA, an individual lacks capacity in relation to a matter if they are ‘at the material time’ unable to make a decision for themself due to an ‘impairment of, or a disturbance in the functioning of’ the mind or brain.[4] Hence, Mr Qu argues, although the new test for sexual capacity provides an equal standard for everyone in society, it is not an equitable standard for P.
I concur with Mr Qu’s overarching concern: Capacity law should better facilitate P’s pursuit of autonomy and sexual freedoms instead of imposing restrictions that constrain P’s autonomy. However, there are two areas of contention I wish to address. Contra Mr Qu, I submit that the Supreme Court’s decision in JB does not inherently produce an inequitable result for P. This will be accomplished by examining why (a) the Court of Protection’s (CoP) consideration of P’s autonomy must include the rights of others, and (b) maintaining the civil and criminal distinction for the test for sexual capacity better guarantees P’s best interests. Then, in concurrence with Mr Qu, I argue the following: In light of the Supreme Court’s decision, in situations where P is found to lack capacity, caretakers and relevant decision-makers — for example, local authorities — for P should practically advance a supported decision-making framework in place of the current substituted decision-making framework to better promote P’s autonomy.
Inequity Is Not Inherent in JB
(a) P’s autonomy and the autonomy of others:
Contra Mr Qu, it is submitted that the Supreme Court has not inherently restricted P’s right to exercise their freedoms. Rather, their affirmation of the Court of Appeal’s choice of the term ‘engage in’ points to the notion that sexual relations are predicated upon mutual, ongoing consent. Moreover, as noted by Lord Stephens, this reformulation is consistent with previous lower court decisions concerning sexual capacity.[5] Hence, the Court noted that ‘the capacity to “engage in” sexual relations encompasses both P as the initiator of those relations and P as the person consenting to sexual relations initiated by another’.[6] As such, understanding the reciprocal nature of consent between sexual partners is relevant information for P to understand, retain, and weigh under section 3(1) of the MCA. Applying this to the facts of JB, this meant that JB did not satisfy the test, as he was unable to understand or weigh the consent of another person. Such a restriction applies equally towards everyone in society regardless of any feature or characteristic they have: No one is entitled towards sex with another. This view is best encapsulated by Baker LJ:
‘I do not accept the argument that including an understanding of the consensuality of sexual relations as part of the information relevant to the decision about the capacity regarding sexual relations amounts to an unwarranted infringement of JB’s personal autonomy or of his rights. Insofar as it is a restriction of his autonomy and his rights, it cannot be described as discriminatory because it is a restriction which applies to everybody, regardless of capacity. As social beings, we all accept restrictions on our autonomy that are necessary for the protection of others.’ [emphasis added][7]
Similar to Baker LJ’s reasoning above, Mr Qu is correct in observing that the decision in JB promotes negative autonomy (the right to not be sexually assaulted), as one function of the CoP is to protect P from abuse and from abusing others[8]. Mr Qu argues the test in JB should be changed to promote positive autonomy, chiefly the right to private life, instead of the right to not be sexually assaulted, which is an instance of negative autonomy.[9] There are significant grounds for this reframing, since, as argued by Mr Qu, it facilitates P’s exercise of their fundamental right to freely engage in sexual relations. Borrowing Mr Qu’s analysis of positive and negative autonomy in the JB test, it is submitted that an equally valid and complementary interpretation of the Court’s decision is that it promotes positive autonomy, namely the right to decide who is entitled to a person’s body: You have a right to grant and withdraw consent from another person — for example, your sexual partner. With this being the case, you have a right to grant and withdraw consent at any point in time (positive autonomy) and that entails the right to not be sexually assaulted by another (negative autonomy), because that would be a violation of your right to grant and withdraw consent.
This formulation best expresses the test outlined in JB: For the CoP to deem P to have capacity to engage in sexual relations, they must find that P is able to understand and weigh it as relevant information, both as the initiator of, or the one consenting to sexual relations initiated by another.[10] If P is in the latter situation, the CoP can apply the test to protect P from possible instances of abuse; if in the former, P’s inability to understand and weigh this relevant information means they pose a threat towards their sexual partner. Hence, the implications of positive and negative autonomy as described above are relevant factors towards the CoP’s consideration of ‘reasonably foreseeable adverse consequences for P and for members of the public’.[11] When one considers the question of an individual’s personal autonomy in relation to engaging in sexual relations, it is necessarily the case that this also includes factoring their sexual partner’s autonomy. Only considering the rights of one individual fails to capture the actual nature of sexual relationships. As such, reformulating the test for sexual capacity to engaging in sexual relations best captures the reality that sexual relations are a reciprocal matter as described above.[12] Thus, in recognising the complementarity of positive and negative autonomy, the Court acknowledged that the CoP’s obligation must necessarily extend to both P and any of their potential sexual partners within the general public.
(b) The civil and criminal distinction, and P’s best interests:
Mr Qu has argued that civil and criminal law should adopt a similar approach for sexual capacity to better promote consistency, equality, and equity.[13] However, it is submitted that this could, in actuality, restrict P’s autonomy and inhibit their best interests — this is the opposite of what Mr Qu argues for. Before I present my arguments against his point, it is useful to summarise the Court’s observations on the separation between civil and criminal law within this context.
Lord Stephens noted that while the civil and criminal tests serve ‘the same function in this context of protecting the vulnerable from abuse and exploitation’, there exists an important distinction regarding ‘the different purposes of the civil and criminal law and the different ways in which they carry out their functions’.[14] He stressed that, within the civil context, a key function of the CoP is to promote P’s autonomy and to protect them from harm while maintaining their obligation as a public authority in regards to the rights of others.[15] Hence, the distinction between a civil and criminal context is a crucial element for the CoP as it allows them to implement decisions that are least restrictive for P.[16] Applying this distinction thus allowed the Court’s implementation of consent in JB to ‘[protect] the individual from the serious consequences that follow from criminal prosecution for sexual assault, rape, or other offences under the Sexual Offences Act 2003’ without requiring P to ‘[understand] all of the possible criminal implications of sexual contact’.[17]
A further observation made by the Court in JB is that the forward-looking nature of civil law is a critical element for the CoP’s ability to assess capacity. Lord Stephen noted that ‘a court assessing capacity to engage in sexual relations under the MCA ordinarily needs to make a general, prospective evaluation which is not tied down to a particular time’.[18] By contrast, criminal law is backwards-looking in nature, which means an individual’s capacity is assessed retrospectively at the time of an alleged offence.[19] This has to do with its primary purpose, which is ‘the prosecution of behaviour that is classified as criminal and the punishment of offenders by the state’.[20] However, punishment is not the purview or aim of the CoP. Hence, despite possessing similar functions, maintaining a distinction between the civil and criminal tests for sexual capacity better demarcates two critical functions of the CoP: (a) Ensuring the Court’s ability to facilitate the development of P’s autonomy in their best interests, and (b) Ensuring the prevention of harm towards P and/or preventing P from potentially harming others. The latter is an especially important point to bear, as ‘many cases on sexual capacity that reach the CoP are fundamentally about allegations of abuse’.[21] Returning to the test outlined in JB, there is, thus, a clear need to maintain the civil/criminal distinction. As stated previously, changing the test to ‘engaging in’ sexual relations allows us to consider the two prospective situations where P may be the initiator of, or the one who wants to consent to sexual relations. 1) If, similar to JB, P wants to initiate sexual relations but is held to lack capacity, the CoP can prevent P from potentially experiencing severe restrictions to their autonomy from criminal prosecution under the SOA. 2) If P wants to consent to sexual relations, the CoP can assess whether or not there are any potential instances of abuse towards P. Both instances require a forward-looking, prospective assessment in order for the CoP to weigh and meet P’s best interests.
A relevant illustration of the second situation can be found in Hull City Council v KF, which concerned KF’s application for ‘a declaration that it is in her best interests to have a short period, including overnight, of unsupervised contact with KW’, who had previously severely sexually and physically assaulted her.[22] KF had a learning disability that impacted her capacity to make decisions for herself.[23] It was expressed by KF that in addition to spending time with KW, she hoped that period of unsupervised contact would lead to sexual relations with KW.[24] Poole J observed that from the facts and application, the case concerned ‘a person-specific decision about sexual relations’.[25] The CoP ruled that KF lacked capacity to ‘have unsupervised contact, including overnight, with KW and to decide to have sexual relations with KW’.[26] In making this decision, Poole J was careful not to go against s 1(4) of the MCA, noting that ‘a person may make unwise decisions and yet have capacity to make them’.[27] Hence, the CoP’s decision was in part influenced by their finding that KF was unable to understand and weigh the relevant information of the ‘risk of harm to her from KW including during sexual intimacy with KW’, and that ‘there are no adequate means of ensuring KF is kept safe without, at least some form of supervision of contact’.[28] The CoP therefore made the prospective assessment that it would only be in KF’s best interests if her contact with KW was supervised and took place in public spaces.[29] From this, one can observe that the forward-looking element of the civil test for sexual capacity allowed the CoP to fulfil their aforementioned critical functions: (a) Balancing the desires of an individual who lacked capacity whilst maintaining her best interests, and (b) Preventing any abuse towards her.
Towards a Practical Solution That Best Promotes P’s Autonomy
In response to Mr Qu’s concern about the current practice of substituted decision-making, and his proposed solution, I argue that caretakers and relevant decision-makers — for example, local authorities — should base their care plan on a supported decision-making framework in order to best promote P’s autonomy. I begin by examining his concern regarding the potential restrictiveness of substituted decision-making towards P’s autonomy. While the Court in JB focused on the question of sexual capacity and not best interests, the latter is a relevant factor for consideration in discussions about P’s autonomy. One might argue that restrictions to P’s autonomy and private life are necessary in order to protect the valid interests of both P and (in some circumstances) others. But one must equally acknowledge that this would ignore P’s personal wishes and, in some cases, go against them. Caretakers and decision-makers’ determination of P’s best interests may not always match up with what P has expressed their wishes to be. One might also raise the issue that the current approach towards sexual capacity places an overemphasis on treating and analysing sexual relations as a medical issue that either neglects to, or fails to, place sufficient weight on ‘the social dimensions of sex’ and how it might pertain to P in terms of facilitating their capability to understand and weigh it.[30] If this is the case, then one can raise the charge that the current use of substituted decision-making in their intervention — that is, through their determination of P’s best interests — ignores P’s personal wishes. Taking this into account, I extend Mr Qu’s concern about substituted decision-making to include the following: It is not necessarily the case that what caretakers and decision-makers determine as P’s best interests would always assist P in developing the ability to make decisions that would allow them to engage in sexual relations. Rather, what would likely follow for P from medical and state intervention(s) are profound restrictions to their life. This seems in direct contradiction to what the MCA’s Code of Practice states as its core aim: To ‘empower people to make decisions for themselves wherever possible and protect people who lack capacity by providing a flexible framework that places individuals at the very heart of the decision-making process’.[31]
Before I turn to Mr Qu’s proposed solution to substituted decision-making then, I shall briefly examine how the CoP practically approaches the determination of P’s best interest and how they give weight to the wishes of P. Doing so will illustrate how the CoP broadly considers P’s autonomy and best interests in practice, thus providing the necessary context to motivate the argument that P’s caretakers should adopt a care plan in accordance with a support-decision making framework.
In an article considering forty-three CoP cases concerning best interest decisions from 2015 to 2020, Keene and Friedman tentatively concluded that, ‘at a minimum … the Judges of the Court of Protection are seeking to take seriously the wishes and feelings of the subject of the proceedings where those wishes and feelings are identifiable’.[32] In instances where judges overrode P’s personal wishes, they did so as P’s ‘wishes and feelings could properly be seen as sitting in tension with each other’.[33] Other instances concerned decisions related to P’s living arrangements, which illustrated the practical limitations in which the CoP could implement s 4 of the MCA due to factors such as public funding decisions.[34] Regardless of the facts of the cases presented to them, the judges recognised that any determination of P’s best interests against their personal wishes required them ‘to give a proper justification for doing so’.[35] The CoP’s approach to best interests is well summarised by HHJ Marshall QC, who remarked that the overarching goal of the MCA is to ascertain what P wants regardless of whether they have the capacity to achieve it.[36] Hence, if P expresses a reasonable desire that can be practically implemented, then it ‘effectively gives rise to a presumption in favour of implementing those wishes’.[37]
The practical realities of considering P’s best interests are complex to navigate. Hence, a solution to substituted decision-making that gives the appropriate weighting to P’s personal wishes must (1) not diminish the importance of medical or other expertise within the court process, and (2) acknowledge that there are instances in which P’s personal wishes are mutually exclusive or ‘so harmful for [P] that the court cannot countenance it’.[38] Simply put, where appropriate, P’s caretakers and decision-makers must be able to yield to practical limitations.
Mr Qu’s solution is for caretakers and decision-makers to utilise a supported decision-making framework.[39] Per Mr Qu, this approach advocates supporting P in their decision-making in order to ‘enable them to make their own decisions’.[40] This strikingly reflects the Law Commission’s views in their report on mental capacity law in the 1990s (which eventually became the MCA 2005).[41] In particular, the Commission’s approach towards determining best interests placed weight on ascertaining what P personally felt.[42] Furthermore, it expected that P would be able to, when needed and when possible, be involved in the court process to express their views directly.[43] This suggests two things. First, there are historical grounds to motivate Mr Qu’s solution. Second, the current framework of substituting decision-making for P, which often results in profound intervention and limitations to P’s life, can, and ought, to be modified to accommodate a supported decision-making framework which focuses on developing P’s decision-making capabilities. That P is currently deemed to lack capacity is not necessarily permanent — it is a fluid property that ‘may fluctuate over time, so that a person may have capacity at one time but not at another’.[44]
If one were to practically advance a supported decision-making framework, one might consider Lindsay and Harding’s ‘capabilities approach’.[45] Briefly, the capabilities approach argues that caretakers and decision-makers should primarily assist and affirm the right for P to be supported in their development of certain capabilities in order to best facilitate their autonomy.[46] One benefit of this approach is that it provides a practical solution to the problem of upholding the interest of others to the detriment of P due to the high threshold of the sexual capacity test: It reframes the existing professional support provided to P by observing P’s functioning and assisting P to develop the requisite skills needed to exercise functions, such as sexual relations.[47] This approach does not diminish the importance of medical analysis within the court process — for example, bodily health or the understanding of pregnancy and STIs.[48] Rather, it provides an important linkage between the importance of understanding both the medical and social dimension of sexual relations that would provide P with a more holistic and practical basis from which they can develop the requisite capabilities needed to exercise their autonomy. Furthermore, it does not remove or undermine the importance of professional support or intervention when practically required, as it argues that we should preferably seek to support P’s development under the MCA.
The Post-JB Landscape
The question then, is whether a capabilities approach is viable post-JB. The recent case of A Local Authority v H provides us with a relevant outlook.[49] Although its focus is not on sexual capacity, it is nonetheless useful to examine as it grapples with the tension between P’s autonomy, the interest of others, and the Court’s role in determining P’s capacity. Before I proceed to the analysis of this case in relation to a capabilities approach, the facts and findings of this case are as follows.
Facts:
H is a young adult who now identifies as a female.[50] H had a traumatic childhood in which she was subject to parental neglect and sexual abuse at a very young age.[51] H also experienced an abrupt end to a foster placement and subsequently had five changes of placement. Her present home has good professional support, which the Court noted was a contributing factor towards her ability to achieve progress.[52]
H ‘faces very complex psychological and psychiatric challenges’ that include multiple mental disorders and psychiatric conditions, and, ‘when “dysregulated”’, H’s behaviour has been extreme and presents harm, both to herself and others’.[53] H has expressed a sexual interest in pre-pubescent children, towards which she experiences ‘a very strong sense of self-loathing’.[54] Despite the positive progress she has achieved, she poses a real risk of sexual harm to children if she is not continuously supervised.
H’s liberty is heavily restricted: She is under supervision both within and outside her home. Her access to the internet and electronic items is allowed only under supervision, and she is restricted from the use of dangerous items. There is internal CCTV installed inside her home. As part of her living arrangements, H is supported by a multi-disciplinary team that provides a stable, trusting and therapeutic environment for her. Under such a ‘profoundly restrictive regime’, there has been a significant reduction in H’s incidents of violent behaviour.[55] However, both the Court and medical opinion expressed serious concern that H would regard such restrictions as ‘integral to her safety and security’.[56] Additionally, there was a recent incident where H became dysregulated and assaulted a staff member.[57]
Findings:
The CoP was asked to consider H’s capacity to make decisions in four areas:
- regarding the restrictions placed upon her current living arrangements;
- care and support;
- contact with others (both adults and children), and;
- the use of the internet and social media.
In his judgment, Hayden J affirmed the decision in JB by acknowledging that ‘primary evaluation of capacity requires not only identification of the decision itself… but also, the relevant information which informs the decision. This will be both fact and person specific’.[58] Critically, he noted the importance of not equating what professionals may regard as relevant information with P’s own views, noting that a ‘paternalistic approach’ would ultimately fail P.[59] Of particular interest was how all parties involved made considerable efforts to include and accommodate H within the court process. H followed the court proceedings closely and gave oral evidence. Hayden J noted that having met H at her request, he found H ‘to be articulate, well-mannered and funny’ and that he ‘enjoyed meeting with her’, further noting she ‘covered a broad range of topics with, what [he] considered to be, a high level of candour’. While the CoP ultimately ruled that H did not have capacity in the aforementioned four areas it was asked to consider, the evidence presented to the court prompted the local authority to amend their care plan ‘to focus upon developing H’s sense of agency… enabling H to develop her own autonomy.’[60] Promisingly, this recent decision seems to suggest an alignment with a supported decision-making framework following the capabilities approach, as it acknowledges that, while H poses a risk to others, it should not detract from her right to develop capabilities that would allow her to best exercise her autonomy in the future.
Conclusion
In JB, the Supreme Court had the weighty task of negotiating an approach to capacity that both upholds the principles of autonomy and the protection of vulnerable persons promoted by the MCA. Ultimately, the Court was correct in their approach to sexual capacity. Their reformulation captures the reciprocal nature of sexual relations, protects both P and their potential sexual partners, upholds the principles of autonomy and the protection of vulnerable persons promoted by the MCA, and clearly articulates the obligations the CoP has as a public authority. However, to fully substitute P’s decision-making within their private lives runs the risk of justifying controlling P’s autonomy on grounds of moral desert: That P is deserving of such treatment by virtue of a disability they possess. This has the unwelcome implication that the state is justified in making such intrusive decisions for P, thereby excluding them from their ability to exercise certain rights for the reason that their possessing of a certain disability is a result of an ‘inequality in the distribution of luck’.[61] Such an approach fundamentally makes ‘demeaning and intrusive judgments of [P’s] capacities to exercise responsibility and effectively dictates to them the appropriate uses of their freedom’.[62] Thus, in agreement with Mr Qu, I have argued that supported decision-making via the capabilities approach is the more equitable and equalising framework, as it seeks to assist P in developing the capabilities that would allow them to best exercise the rights that we all have.
[1] Derek Qu, ‘Equity or Equality before the law? What A Local Authority v JB means for Persons who are Unable to Understand what Sexual Consent is’ (LSE Law Review Blog, 6 March 2023) <https://blog.lselawreview.com/2023/03/06/equity-or-equality-before-the-law-what-a-local-authority-v-jb-means-for-persons-who-are-unable-to-understand-what-sexual-consent-is/> accessed 11 November 2023.
[2] A Local Authority v JB [2021] UKSC 52, [2022] AC 1322.
[3] JB UKSC (n 2) [47]
[4] Mental Capacity Act 2005, s 2(1).
[5] JB UKSC (n 2) [90].
[6] JB UKSC (n 2) [112].
[7] A Local Authority v JB [2020] EWCA Civ 735 [98], [2021] Fam 37.
[8] Qu (n 1).
[9] ibid.
[10] JB UKSC (n 2) [112].
[11] JB UKSC (n 2) [92].
[12] JB UKSC (n 2) [90].
[13] Qu (n 1).
[14] JB UKSC (n 2) [107].
[15] ibid.
[16] Mental Capacity Act 2005, s 4.
[17] Jaime Lindsey and Rosie Harding, ‘Capabilities, Capacity, and Consent: Sexual Intimacy in the Court of Protection’ (2021) 48 Journal of Law and Society 60, 71.
[18] JB UKSC (n 2) [101].
[19] Alex Ruck Keene, ‘Capacity, consent and sexual relations – the Supreme Court decides’ (Mental Capacity Law and Policy, 24 November 2021) <https://www.mentalcapacitylawandpolicy.org.uk/capacity-consent-and-sexual-
relations-the-supreme-court-decides/> accessed 11 November 2023.
[20] JB UKSC (n 2) [107].
[21] Jaime Lindsey and Rosie Harding (n 17) 71.
[22] Hull City Council v KF [2022] EWCOP 33 [8], [2022] COPLR 540.
[23] Hull City Council (n 22) [1].
[24] Hull City Council (n 22) [8].
[25] Hull City Council (n 22) [24].
[26] Hull City Council (n 22) [25].
[27] Hull City Council (n 22) [34].
[28] Hull City Council (n 22) [30].
[29] Hull City Council (n 22) [35].
[30] Lindsey and Harding (n 17) 61.
[31] Department for Constitutional Affairs, Mental Capacity 2005 Code of Practice, Foreword.
[32] Keene and Friedman, ‘Best interests, wishes and feelings and the Court of Protection 2015-2020’ (2021) Journal of Elder Law and Capacity, 46.
[33] Keene and Friedman (n 32) 41.
[34] Keene and Friedman (n 32) 45.
[35] Keene and Friedman (n 32) 46.
[36] Re S (Protected Person) [2010] 1 WLR 1082 (COP) [55]-[57].
[37] ibid.
[38] Alex Ruck Keene and Michal Friedman (n 32) 46.
[39] Qu (n 1).
[40] Law Commission, Mental Capacity and Deprivation of Liberty (Law Com Consultation Paper No 222, 2015) para 3.20.
[41] Peter Bartlett, ‘Re-thinking the Mental Capacity Act 2005: Towards the Next Generation of Law’ (2023) 86 Modern Law Review 659.
[42] Bartlett (n 41) 662.
[43] Bartlett (n 41) 675.
[44]JB UKSC (n 2) [64]
[45] Lindsey and Harding (n 17) 60.
[46] Lindsey and Harding (n 17) 76.
[47] Lindsey and Harding (n 17) 79.
[48] Lindsey and Harding (n 17) 79.
[49] A Local Authority v H [2023] EWCOP 4, (2023) 192 BMLR 1.
[50] A Local Authority v H (n 49) ibid [1].
[51] ibid.
[52] ibid.
[53] A Local Authority v H (n 49) ibid [2].
[54] A Local Authority v H (n 49) ibid [27].
[55] A Local Authority v H (n 49) ibid [3].
[56] A Local Authority v H (n 49) ibid [5].
[57] A Local Authority v H (n 49) ibid [6].
[58] A Local Authority v H (n 49) ibid [21].
[59] A Local Authority v H (n 49) ibid [25].
[60] A Local Authority v H (n 49) ibid [30].
[61] Elizabeth S Anderson, ‘What Is the Point of Equality?’ (1999) 109 Ethics 287, 289.
[62] ibid.
Sebastian Ching
BSc Philosophy, Logic and Scientific Method (LSE) ’24 and Notes Editor of the LSE Law Review Editorial Board 2023-24