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Insights / News
Acting for JB’s litigation friend, the Official Solicitor, John appealed the decision of the Court of Appeal that JB was required to understand that his potential sexual partners must consent to have sexual relations with him.
The Supreme Court noted the appeal ‘raises issues of profound significance’ but went on to reject the grounds of appeal advanced. It summarised its findings, holding that:
‘The evaluation of JB’s capacity to make a decision for himself is in relation to “the matter” of his “engaging in” sexual relations. Information relevant to that decision includes the fact that the other person must have the ability to consent to the sexual activity and must in fact consent before and throughout the sexual activity. Under section 3(1)(a) MCA JB should be able to understand that information and under section 3(1)(c) MCA JB he should be able to use or to weigh it as part of the decision-making process. Applying the test in section 2(1) MCA on the available information, JB is unable to make a decision for himself in relation to that matter because of an autistic impairment of his mind.’
The Court rejected the previous case law that the civil and criminal law should apply the same substantive test for capacity to consent to sexual relations and concluded the civil law could impose a higher test for policy reasons.
The matter has been returned to Roberts J for further determination of JB’s capacity in respect of the clarified test.
The decision can be read here and press commentary can be read here.
John McKendrick QC is a leading practitioner before the Court of Protection and practises in the fields of public and commercial law.
News 25 Nov, 2021
Call: 1999 Silk: 2016
