JB (Capacity: Consent To Sexual Relations And Contact With Others)

JB (Capacity: Consent To Sexual Relations And Contact With Others)

For the purposes of determining capacity to consent to sexual relations under section 3(1) of the Mental Capacity Act 2005, the information relevant to the decision does not include the requirement that the other person engaged in sexual activity must be able to, and does in fact, consent. The test remains act-specific and focuses on the individual's own understanding, choice, and ability to consent or refuse. Expansion of the test to include criminal law concepts or partner-specific consent is rejected as an impermissible inroad into autonomy and discriminatory against vulnerable adults.

Parties
Applicant: A Local Authority; Respondent: JB; Litigation Friend: Official Solicitor
Jurisdiction
England and Wales
Judgment Date
17 September 2019
Procedural Posture
Court of Protection Proceedings / Judgment on Legal Issues (split Hearing, First Stage)
Outcome
Declaration that the information relevant to capacity to consent to sexual relations does not include understanding of the other party's consent or criminal law consequences; test remains act-specific and focused on the individual's own capacity.
Legal Topics
Capacity to Consent to Sexual Relations, Consent, Autonomy, Best Interests, Care Planning, Criminal Law Overlap
Mental Capacity Human Rights Family Law Capacity to Consent to Sexual Relations Consent Autonomy Best Interests Care Planning +1 more

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Parties

A Local Authority

Applicant

JB

Respondent

Official Solicitor

Litigation Friend

Procedural Posture

Court of Protection Proceedings / Judgment on Legal Issues (split Hearing, First Stage)

Legal Issues

  1. 1 Does the information relevant to the decision under section 3(1) of the Mental Capacity Act 2005 include the requirement that the other person engaged in sexual activity must be able to, and does in fact, consent?
  2. 2 Should the test for capacity to consent to sexual relations be expanded to include an understanding of criminal law consequences?
  3. 3 What is the correct approach to capacity regarding contact with others and support needed when JB is in the company of someone to whom he feels sexually attracted?

Ratio Decidendi

For the purposes of determining capacity to consent to sexual relations under section 3(1) of the Mental Capacity Act 2005, the information relevant to the decision does not include the requirement that the other person engaged in sexual activity must be able to, and does in fact, consent. The test remains act-specific and focuses on the individual's own understanding, choice, and ability to consent or refuse. Expansion of the test to include criminal law concepts or partner-specific consent is rejected as an impermissible inroad into autonomy and discriminatory against vulnerable adults.

Court Disposition

Declaration that the information relevant to capacity to consent to sexual relations does not include understanding of the other party's consent or criminal law consequences; test remains act-specific and focused on the individual's own capacity.

Orders

  • The capacity test for sexual relations is not expanded to include understanding of the other party's consent.
  • Further issues regarding contact with others and support for JB will be determined at the October hearing.