Before I joined BIHR as a Human Rights Officer, I worked in a Mental Capacity Act (MCA) Service at a local authority in the north of England. The Mental Capacity Act is a law in England and Wales which empowers people to make decisions for themselves, and protects people who lack capacity to make decisions by providing a framework which puts the person at the centre of the decision-making process.

In my previous job, I completed capacity assessments with people of all ages, backgrounds and circumstances, and in relation to a variety of different decisions. Where to live, what kind of support to receive, whether to spend money on bills or something much more fun. Out of all the decisions to be made in life, I found that the capacity assessments which gave rise to the most ethical tensions were those relating to sex.

With this in mind, I, like many with an interest in mental capacity law and human rights, have been keenly following a particular legal case since 2019 where the matter of capacity assessments and sexual relations has been put under the microscope in the courts.

A Local Authority v JB

The legal case is known as a Local Authority v JB. JB is a man in his late 30s with severe epilepsy and Asperger’s syndrome. He gets support from the Local Authority and is supervised by a support worker when he goes out. JB wants to have romantic and sexual relationships, but the Local Authority is concerned that JB does not understand the fact that a sexual partner must be able to, and does consent to the sexual activity before and throughout. They think if JB was not supervised as he currently is, it is likely that he would commit a sexual assault.

The courts had previously decided that for a person to have capacity to consent to sex, the relevant information they needed to be able to understand, retain, and use or weigh, included:

  1. The mechanics of the act;
  2. That sex between a man and a woman may result in the woman becoming pregnant;
  3. That they can say yes or no to having sex;
  4. That there are health risks, i.e. getting a sexually transmitted disease;
  5. That the risk of getting a sexually transmitted diseased can be reduced by taking precautions such as using a condom.

If someone is unable to understand, retain or use or weigh any of the above points due to a ‘impairment of, or a disturbance in the functioning of, the mind of brain’, then they would be assessed as lacking capacity to consent to sex.

The Local Authority had assessed JB’s capacity and determined that he understood the above points. However, they believed that JB must also have an understanding of his sexual partner’s consent as part of the capacity assessment. The Local Authority therefore asked the Court of Protection, a court which looks at issues relating to mental capacity, to think about the relevant information again.

The judge in the Court of Protection said the additional information about a sexual partner’s ability to consent was not relevant, and as a result, that JB had capacity to consent to sexual relations. The Local Authority appealed this decision and the Court of Appeal, a higher court, looked at it again. The Court of Appeal decided that the other person’s consent was relevant to decisions about sex. JB’s legal representatives appealed this decision again, and finally this year the Supreme Court, the highest court in the UK, was asked to examine the matter of mental capacity and sexual relations.

We talked about this case in our Explainer on mental capacity and sexual relations, as well as other key case law in this area. Click here or click the image below to read it.

The Supreme Court itself wrote a plain language summary of the events of this case leading up to the most recent hearing which took place in July 2021. You can read it here.

What did the Supreme Court say?

On 24 November 2021, the Supreme Court handed down its judgment on this case, and it agreed with what the Court of Appeal had decided.

The key points of the judgment were:

  • For a person to have capacity to make decisions about sexual relations, they must understand that their chosen sexual partner must have the ability to consent to the sexual activity, and that they do consent to it both before and during the activity. They must understand these things in addition to the list of relevant information highlighted above.
  • Sexual relations must be seen as consensual; that both people agree to have sex and continue to agree to having sex throughout. The question used to be ‘can the person consent to sexual relations?’ but now it’s ‘can the person make the decision to engage in sexual relations?’ This is a significant shift in seeing the person who may lack capacity as an active participant in sex, rather than a passive recipient.
  • The ‘test’ for decisions around sex has tended to be ‘decision-specific’, that is to say, general and not necessarily taking into account the specifics of each and every sexual partner someone may engage in sexual activity with. However, this judgment tells us that in some circumstances the relevant information has to be considered on a more person-specific basis, taking into account the individual facts of the people involved. An example of where tailoring the relevant information may happen is offered in the judgment: ‘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’.
  • The ‘test’ for capacity to engage in sexual relations in civil law now sets a higher bar than it does in criminal law. However, the Supreme Court said that there is no problem with this if it is in the interests of protecting the public.
  • Perhaps most controversially, the Supreme Court said that the Court of Protection must consider all relevant information, including information that helps protect the public, as well as the person who may lack capacity. The Judgment held that:

In this way the court as a public authority, in determining what information is relevant to the decision, must include reasonably foreseeable adverse consequences for P and for members of the public. In practice, by doing so, the court under the MCA protects members of the public.

This means JB’s appeal was unsuccessful and he can’t appeal again. The judgment does mention a 'programme of work' aiming to reduce the risk JB poses to women. If JB can be supported to understand these key questions about the consent of potential sexual partners, he may gain capacity to make decisions about engaging in sexual relations in future.

This Supreme Court judgment has wide implications. It introduces additional information considered relevant to decisions about sex and as a result, there may be more people who are found to lack capacity to engage in sexual relations. It may well be that other legal cases are brought before the Courts which test out this case law.

What did the Supreme Court say about human rights?

The HRA legal duty

The Supreme Court and all the other courts involved in this legal case are public bodies in the eyes of the Human Rights Act. This means they have a legal duty to respect, protect and fulfil human rights when considering legal cases, including this one. I observed the hearing and the judges were quick to acknowledge that it is not only JB’s human rights that they have to consider, but the rights of everyone who may be impacted by the judgment. This means also considering JB’s potential sexual partners who could be harmed by his inability to understand the consensual nature of sex. This is one of the underpinning principles of this judgment, that the application of the Mental Capacity Act in this case must not only consider the reasonably foreseeable consequences of the decision for JB himself, but also for members of the public.

The Right to Respect for Private and Family Life, Home and Correspondence (Article 8 HRA)

JB’s legal representatives had raised concerns about JB’s right to respect for private and family life (Article 8 HRA), but the Supreme Court did not allow this argument as it hadn’t been raised before either in the Court of Protection or the Court of Appeal.

Lord Stephens, the Supreme Court Justice who wrote most of the judgment, said:

“section 1(3) MCA provides that 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 which ensures that the interference with article 8, if it is engaged, is proportionate. I consider that the operation of the MCA is compatible with article 8.”

 The UN Convention on the Rights of Persons with Disabilities (UNCRPD)

JB’s legal representatives had argued that including the other person’s consent as relevant information would create a separate test for capacity for people with disabilities, and that this would be incompatible with Article 12 of the UNCRPD which states that people with disabilities should have equal recognition before the law. Lord Stephens did not agree with this, stating that the additional information are facts which everyone in society must consider.

Taking a human rights approach

In this important legal case, the Supreme Court has looked mainly at how the Mental Capacity Act is applied where someone may lack capacity to engage in sexual relations.

Crucially, though, the Human Rights Act and the duties it puts on public bodies have not changed. The Human Rights Act operates as a foundation law. This means that other laws, regulations and guidance should be applied compatibly with human rights. The Mental Capacity Act should always be applied through the lens of the Human Rights Act.

Being involved in decisions that affect us, forming relationships with others, and having a family life are important to all of us, and they are all protected by our right to respect for private and family life, home and correspondence (Article 8 of the Human Rights Act). There is a legal duty on public bodies to protect this right, which includes supporting people to make decisions about their lives.

This is a non-absolute right, meaning it can sometimes be limited by public bodies under certain circumstances as long as a three-stage test has been met. Restrictions on non-absolute rights must be:

Lawful

There must be a law which allows public officials to take that action or decision. This may be the Mental Capacity Act, or a different law.

Legitimate

The restriction has to be for a reason set out in the law. This is often about protecting the individual from harm, or others from harm – which is particularly relevant in this case.

Proportionate

The government or public body must have thought about other things they could do, but there is no other way to protect you or other people. In other words, it must be the least restrictive option. Blanket restrictions that apply regardless of individual circumstances cannot be proportionate.

What people in public bodies, or staff who are delivering a public function, must remember when taking a human rights approach to supporting people who want to have sex and/or form relationships, is that an individualised approach must be taken. There is no one-size-fits-all approach when it comes to these deeply personal matters. However, the Human Rights Act gives us the tools to explore these complexities, examine the impact of any decisions, actions or policies which may restrict people’s rights, and establish a way forward that is respectful of people’s rights.

Where can I find more information?

Image source: Unsplash