A Local Authority v JB

Factual and Procedural Background

The Appellant is a 38-year-old man with autism, epilepsy-related brain damage and associated cognitive and social impairments. He lives in a supported residential placement under a restrictive care plan that limits his unsupervised interactions, particularly with women.

The Respondent, a local authority, applied to the Court of Protection for declarations on the Appellant’s capacity in several areas. By July 2019 the parties agreed that he lacked capacity in relation to residence, care, internet use and other matters. The outstanding dispute concerned his capacity regarding sexual relations.

At first instance, Judge [Last Name] (Court of Protection) held that the Appellant had capacity to consent to sexual relations because the “relevant information” for capacity purposes did not include understanding that the other person must be able to, and actually does, consent ([2019] EWCOP 39).

The Respondent successfully appealed. The Court of Appeal (Sir Judge [Last Name] P, Judge [Last Name] LJ and Judge [Last Name] LJ) recast the decision as whether to “engage in” rather than “consent to” sexual relations and ruled that understanding the partner’s ability and continuing agreement to consent is essential information ([2020] EWCA Civ 735). It set aside the declaration of capacity and made an interim declaration that there was reason to believe the Appellant lacked capacity.

The Supreme Court granted permission to appeal in April 2021. Two charities—Charity A and Charity B—were permitted to intervene by written submissions.

Legal Issues Presented

1. Whether, for the purposes of sections 2–3 of the Mental Capacity Act 2005, the “information relevant” to a decision to engage in sexual relations includes that the other person must be able to consent, must give consent, and must maintain consent throughout the activity.
2. If such information is required, whether the Appellant’s inability to understand, retain, and use or weigh that information means he lacks capacity to decide to engage in sexual relations.

Arguments of the Parties

Appellant’s Arguments

• The partner’s consent is not part of the information relevant to the Appellant’s personal decision-making; therefore, inability to grasp that concept should not vitiate capacity.
• Requiring comprehension of the partner’s consent risks imposing an unduly high, overly paternalistic threshold that would deny sexual autonomy to those with cognitive impairments.

Respondent’s Arguments

• Understanding that any partner must be able to, and actually does, consent is fundamental to the decision to engage in sexual relations.
• Failure to include this element would expose both the Appellant and potential partners to risk of sexual offences and would represent a “derogation of responsibility” by the Court of Protection.

Table of Precedents Cited

Court's Reasoning and Analysis

The judgment reviews the Mental Capacity Act 2005 in detail, stressing five guiding principles (presumption of capacity, requirement to take all practicable steps, respect for unwise decisions, best interests, and least restriction). It explores three traditional approaches to capacity—“outcome,” “status,” and “functional”—and adopts the functional test embedded in sections 2–3 MCA, which focuses on the individual’s ability to understand, retain, and use or weigh information and to communicate a decision.

The Court notes that the Appellant demonstrably grasped the mechanics of sex and could give or withhold his own consent, but persistently failed to appreciate that a partner must consent and may withdraw consent. Expert evidence indicated this failure arises from autistic impairments affecting his social cognition and decision-making.

Risk assessments showed a moderate to high risk of sexual assault if the Appellant were left unsupported, reinforcing the importance of including the partner’s consent within the “information relevant” to the decision under section 3(1)(a) MCA. The Court also considered whether the Respondent had taken “all practicable steps” (section 1(3) MCA) to help the Appellant reach a decision; ongoing therapeutic work was noted, but experts doubted meaningful improvement without increased insight and motivation.

Holding and Implications

The final disposition of the appeal is not included in the excerpt provided. Consequently, the precise holding and its legal implications cannot be summarised.