Supreme Court hands down landmark judgment on capacity to engage in sex

The Supreme Court has today handed down judgment in A Local Authority v JB (by his litigation friend, the Official Solicitor) [2021] UKSC 52.

The landmark case is the first time the Supreme Court has considered the concept of mental capacity under the Mental Capacity Act 2005, specifically what ‘relevant information’ a protected party (‘P’) should be able to understand when assessing whether they have capacity to have sex.   

At the heart of the case is JB, a 38 year-old single man who has autistic spectrum disorder together with impaired cognition.  JB would like to have a girlfriend and a sexual relationship, but on the basis of his alleged previous behaviour towards women, the respondent local authority has concluded that he cannot have unsupervised contact with them.

The Court of Protection initially held that JB has capacity to consent to sexual relations. The Court of Appeal disagreed with this and held that, in order to have capacity to engage in sex under the Mental Capacity Act 2005, the relevant information that a person needs to understand includes that “their partner must have the capacity to consent to sexual activity and must in fact consent before and during the sexual activity”. JB was not able to understand this, and so the Court of Appeal concluded that he lacks capacity to engage in sex.

JB (by his litigation friend, the Official Solicitor) appealed this decision to the Supreme Court.

The Supreme Court unanimously dismissed JB’s appeal. The court confirmed that a person will only have capacity to engage in sex with another person if they can understand, retain and use or weigh that their partner must “have the ability to consent to the sexual activity” and “must in fact consent before and throughout the sexual activity” (para 121).

Aswini Weereratne QC, Sophy Miles, Mary-Rachel McCabe and Caragh Nimmo, instructed by Irwin Mitchell, acted for the first intervener, Respond. Respond is a national charity which provides therapeutic and support services to children, young people and adults with learning disabilities and/or autism. Its work includes providing psychoeducational support to those with disabilities to enable them to have the same opportunity to enjoy safe and fulfilling intimate relationships as their non-disabled peers.

Respond supported JB’s argument that, by including in the relevant information for capacity to  engage in sex the fact that the other person must have the capacity to consent to the sexual activity and must in fact consent, the Court of Appeal had set JB and others like him up to fail. Respond submitted that a less abstract, more situation-specific test, and one that is less complex, would be more likely to preserve P’s right to a sexual life.

The court acknowledged that Respond’s written submissions “provided insight from the perspective of a charity devoted to the support of many individuals with conditions similar to JB’s” (para 7).