A Local Authority v JB (by his litigation friend, the Official Solicitor)
| Jurisdiction | England & Wales |
| Judge | Lord Stephens,Lady Rose,Lord Burrows,Lord Briggs,Lady Arden |
| Judgment Date | 24 November 2021 |
| Neutral Citation | [2021] UKSC 52 |
| Year | 2021 |
| Court | Supreme Court |
[2021] UKSC 52
Lord Briggs
Lady Arden
Lord Burrows
Lord Stephens
Lady Rose
Appellant
John McKendrick QC
Ian P Brownhill
Helen Law
(Instructed by Enable Law)
Respondent
Vikram Sachdeva QC
Richard Whittam QC
Alexander Ruck Keene
Fiona Paterson
(Instructed by Wolferstans Solicitors)
1 st Intervener (Respond)
(written submissions only)
Aswini Weereratne QC
Sophy Miles
Mary-Rachel McCabe
Caragh Nimmo
(Instructed by Irwin Mitchell)
2 nd Intervener (Centre for Women's Justice)
(written submissions only)
Victoria Butler-Cole QC
Tim James-Matthews
(Instructed by Centre for Women's Justice)
Heard on 15 July 2021
( with whom Lord Briggs, Lady Arden, Lord Burrows and Lady Rose agree)
This appeal raises issues of profound significance under the Mental Capacity Act 2005 (the “MCA”) for the appellant, JB, and others like him with an impairment of, or a disturbance in the functioning of, the mind or brain which potentially renders them unable to make a decision for themselves in relation to have sexual relations. The central issue is whether the information relevant to JB's decision to have sexual relations includes the fact that the other person must be able to consent and gives and maintains consent throughout. If it does, then for JB to have capacity to make the decision for himself, he must be able to understand that information, retain that information and use and weigh that information. If JB is unable to do so, despite all practicable steps having been taken to help him, with the consequence that he lacks capacity to make a decision for himself to having sexual relations, then he will be deprived of all sexual relations, as no other person may consent on his behalf to him having such relations: section 27(1)(b) MCA.
Proceedings were commenced by the local authority in the Court of Protection seeking declarations as to JB's capacity in various matters. By 15 July 2019, the date of the hearing before Roberts J, the local authority and the Official Solicitor, on behalf of JB as his litigation friend, had reached agreement on the majority of issues about JB's capacity, including that he lacked capacity to conduct the proceedings and to make decisions relating to his residence, care and support, contact with others and as to his use of the internet and social media. There remained the issue, as formulated by the parties, as to whether JB, in order to have the capacity “to consent” to sexual relations, must not only understand that he can give or withhold consent but must also understand that the other person must be able to consent and gives and maintains consent throughout. At the material time it was evident that because of an impairment of, or a disturbance in the functioning of, his mind or brain, JB did not have that understanding in relation to the consent of the other person. The judge identified the fundamental submission made on behalf of JB as being “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” (see para 13, emphasis added). The local authority also formulated the issue in relation to JB's capacity “to consent” but contended that a component of JB's ability to consent was an understanding that the other person must be able to, and must in fact, consent. It was said that if this component was absent then sexual offences might be committed by JB and that to permit such a situation would be a derogation of responsibility by the Court of Protection.
The judge handed down her written judgment on 17 September 2019: [2019] EWCOP 39; [2020] 1 WLR 1. She concluded that the relevant information did not include the fact that the other person was able to, and did in fact, consent. She held that “For the purposes of determining the fundamental capacity of an individual in relation to sexual relations, the information relevant to the decision for the purposes of section 3(1) of the Mental Capacity Act 2005 does not include information that, absent consent of a sexual partner, attempting sexual relations with another person is liable to breach the criminal law” (para 87). She granted a declaration pursuant to section 15 MCA that “JB has capacity to consent to sexual relations”.
The local authority appealed to the Court of Appeal with the leave of King LJ granted on 20 November 2019. Following a hearing on 3 March 2020, the Court of Appeal (Sir Andrew McFarlane, President of the Court of Protection, Singh LJ, and Baker LJ) handed down judgment on 11 June 2020: [2020] EWCA Civ 735; [2021] Fam 37. Baker LJ delivered the lead judgment, with which the other members of the court agreed. He recast the relevant “decision” as being a decision to “ engage in” sexual relations rather than a decision to “ consent to” sexual relations (para 93). Baker LJ held (at para 94) that:
“When the ‘decision’ is expressed in those terms, it becomes clear that the ‘information relevant to the decision’ inevitably includes the fact that any person with whom P engages in sexual activity must be able to consent to such activity and does in fact consent to it. Sexual relations between human beings are mutually consensual. It is one of the many features that makes us unique. A person who does not understand that sexual relations must only take place when, and only for as long as, the other person is consenting is unable to understand a fundamental part of the information relevant to the decision whether or not to engage in such relations.”
Accordingly, the appeal was allowed given that JB did not understand information which was relevant to the decision to engage in sexual relations, namely that the other person must be able to consent and gives and maintains consent throughout. The declaration that JB had capacity to consent to sexual relations was set aside, and an interim declaration was made 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”. The question as to whether a final declaration should be made was remitted to the judge, who, it was anticipated, would consider it appropriate to seek supplemental evidence.
On 11 June 2020, the Court of Appeal dismissed JB's application for permission to appeal to the Supreme Court. On 13 April 2021, a panel of the Supreme Court (Lord Hodge, Lady Arden and Lord Hamblen) granted permission to appeal.
Because of the public importance of the issues, two charities, neither of which had intervened before the Court of Appeal, were given permission to participate in the appeal as interveners by way of written submissions. Their participation, along with that of counsel for the principal parties, greatly assisted the court. The following is a description of each of the interveners.
The first intervener is Respond. Respond is a 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's written submissions provided insight from the perspective of a charity devoted to the support of many individuals with conditions similar to JB's.
The second intervener is the Centre for Women's Justice (“CWJ”) which is a charity established in 2016, whose mission is to challenge, in a number of ways, male violence against women and girls, including by conducting strategic litigation. CWJ's written submissions provided insight from the perspective of a charity devoted to challenging male violence against women and girls.
There have been no final factual findings, though much of the evidence is not disputed. The local authority and the Official Solicitor jointly instructed Dr Susan Thrift, a consultant clinical psychologist, to assess JB's capacity to make decisions as to various matters including consenting to sexual relations. They also jointly instructed another consultant clinical psychologist, Dr Jillian Peters, to provide her expert opinion as to various matters, such as whether JB poses a sexual risk to women or vulnerable women and, if so, the severity of the risk together with advice as to a programme of work that may ameliorate that risk. The summary of JB's personal circumstances which is set out in this section of the judgment is taken from the reports of those two experts and from the judgments at first instance and in the Court of Appeal.
JB is a 38-year-old man. Since May 2014 he has been living in a supported residential placement, funded by the local authority, which he shares with two others. The staff who support JB described him as “likeable”. It is important to JB that he feels liked and popular. Unfortunately, some of his behaviours, especially towards women, at times make him extremely unpopular with others, which causes him to feel “depressed and desperate”.
JB is subject to a comprehensive care plan which imposes significant limitations on his ability to function independently. These include restrictions on his access to the local community, on his contact with third...
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