The Supreme Court handed down its Judgment yesterday in A Local Authority v JB. The Court considered whether, in order for a person to have capacity to engage in sexual relations with another person, that person must be able to understand that the other person must be able to consent to the sexual activity and must in fact consent before and throughout the sexual activity.
The Court held that this question ought to be answered in the affirmative, as the Court of Appeal had held. The appeal was unanimously dismissed on a number of grounds.
The Local Authority commenced proceedings in the Court of Protection seeking declarations under the Mental Capacity Act 2005 as to the JB’s capacity to consent to sexual relations. A question arose as to whether the judge should have regard to whether they had capacity to understand that the other person involved must give consent, and did in fact give and maintain consent throughout the act. The judge in the Court of Protection found that this was not relevant information for the purposes of determining if an individual had capacity to consent to sexual relations under the Act.
The Local Authority appealed to the Court of Appeal. The Court of Appeal recast the relevant matter as whether JB had the capacity “to engage in” rather than “consent to”, sexual relations. The Court of Appeal found that in deciding whether a person had the capacity to engage in sexual relations, a judge should have regard to whether that person can understand that the other person involved must be able to consent and give and maintain consent. The Local Authority’s appeal was therefore allowed. JB, by his Litigation Friend, the Official Solicitor, appealed to the Supreme Court on several grounds.
Helen Law was instructed by Enable Law and the Official Solicitor on behalf of the appellant JB.
Tim James-Matthews appeared for the intervener, the Centre for Women’s Justice.
Richard Whittam QC was instructed by Wolferstans Solicitors on behalf of The Local Authority.