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The issue arose in the context of proceedings concerning a year-old man with a complex diagnosis of autistic spectrum disorder combined with impaired cognition. The question before the judge at first instance, and in written submissions presented to this court before the hearing, was couched in different terms, namely whether a person, in order have capacity to consent to such relations, must understand that the other person must consent.

The first instance judge, Roberts J, had held the fact that the man in question, JB, could not understand that fact, did not mean that he lacked capacity to consent. The local authority appealed, and sought to persuade the Court of Appeal that Roberts J had been wrong to exclude this information from the information relevant to the test.

The Court of Appeal, however, took a different course, steered by Baker LJ giving the sole judgment of the court. Baker LJ started by observing that the issue — of great importance to people with learning disabilities or acquired disorders of the brain or mind — required the court to balance three fundamental principles of public interest. The first is the principle of autonomy. This principle lies the heart of the Mental Capacity Act and the case law under that Act.

It underpins the purpose of the UN Convention on the Rights of Persons with Disabilitiesas defined in article The second is the principle that vulnerable people in society must be protected. Striking a balance between the first and second principles is often the most important aspect of decision-making in the Court of Protection.

There is, however, a third principle that arises in this case. They are part of a wider system of law and justice. Sexual relations between two people can only take place with the full and ongoing consent of both parties. This principle has acquired greater recognition in recent years within society at large and within the justice system. The greater recognition has occurred principally in the criminal and family courts, but it must extend across the whole justice system. But as part of the wider system for the administration of justice, it must adhere to general principles of law.

Furthermore, as a public authority, the Court of Protection has an obligation under s. Within the court, that obligation usually arises when considering the human rights of P. But it also extends to the rights of others. To resolve the appeal, Baker LJ had to consider both the Act and the development of the case-law. As he noted, there is only reference to sexual relations in the MCA, namely s. Having set out the rival submissions of the local authority as appellant and the Official Solicitor on behalf of JB, Baker LJ then turned at paragraph 91 to his analysis of the position.

As he then noted:.

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The analysis of capacity with regard to sexual relations in the case law has hitherto been framed almost exclusively in terms of the capacity to consent to sexual relations. But as this case illustrates, giving consent to sexual relations is only part of the decision-making process. The fundamental decision is whether to engage in sexual relations. The focus on the capacity to consent derives, in part, from the judgments delivered by Munby J prior to the implementation of the MCA, which unsurprisingly influenced the analysis in subsequent cases after the Act came into force.

In addition, as pointed out above, the only reference to sexual relations in the MCA is in s. But the list in s. As Baker LJ noted, the earliest caselaw decided by Munby J had framed the analysis by reference both by reference to the question whether someone has the capacity to consent to sexual relations and also by reference to the question whether someone has the ability to choose whether or not to engage in sexual activity.

However, in subsequent cases, the focus had been on the first question to the exclusion of the second. As Baker LJ noted:.

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But in the present case, it is JB who wishes to initiate sexual relations with women. 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.

The Official Solicitor had argued that, even if the decision was expressed in those terms, the relevant information should not include an understanding of the consensuality of sexual relations. However, Baker LJ held that none of the reasons stood up to scrutiny:. I accept that it is important for the test for capacity with regard to sexual relations to be as simple and straightforward as possible but that cannot justify excluding information which is manifestly relevant to the decision.

And if the consensuality of sexual relations is part of the relevant information, it plainly relates to capacity itself rather than the exercise of capacity. But it has never been suggested that decisions are exclusively visceral or instinctive.

It is, of course, true that sexual desire is emotional rather than intellectual, but for human beings the decision whether or not to engage in sexual relations obviously includes a cerebral element. It involves thought as well as instinct. And amongst the matters which every person engaging in sexual relations must think about is whether the other person is consenting. Mr Patel also relies on the point made in earlier judgments that the focus of the MCA is different from that of the criminal law.

It would, however, be wrong and unprincipled to exclude an understanding of the consensuality of sexual relations from the relevant information on the grounds that non-consensual sexual acts should be dealt with by the criminal justice system. As illustrated by the background history to this application, which includes an incident of alleged sexual abuse in respect of which the police decided to take no action, the criminal justice system does not necessarily deal with such cases and there may well be good reason for this, because the police and the prosecution authorities have a discretion whether or not to pursue every potentially available criminal charge and exercise that discretion in the public interest.

But even if it could be guaranteed that such incidents were dealt with by the criminal courts, to leave such matters to the criminal justice system would be an abdication of the fundamental responsibilities of the Court of Protection, which include the duty to protect P from harm. Baker LJ returned to the importance of striking a balance between the principle that vulnerable people in society must be protected and the principle of autonomy is often the most important aspect of decision-making in the Court of Protection.

However, he did:. Insofar as it is a restriction of his autonomy and his rights, it cannot be described as discriminatory because it is a restriction which applies to everybody, regardless of capacity. As social beings, we all accept restrictions on our autonomy that are necessary for the protection of others. No man is an island. This principle is well recognised in the European Convention on Human Rights.

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For example, the rights in Article 8 are not absolute and must be balanced against other interests, including the rights of others. As I said at the outset of this judgment, the Mental Capacity Act and the Court of Protection do not exist in a vacuum. They are part of a system of law and justice in which it is recognised that sexual relations between two people can only take place with the full and ongoing consent of both parties. However, he made clear:. In my judgment, however, it is not inconsistent with the earlier authorities of this Court.

But as already stated, the information which a capacitous individual must take into in deciding whether to engage in sexual relations includes whether or not the other person is consenting. My decision in this case is therefore not inconsistent with earlier decisions of this Court.

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Baker LJ noted that there remained the question whether the information relevant to the decision whether to engage in sexual relations must always include all of the matters identified in the paragraph. In fairness to the judge, I think she was understandably led into this approach by dicta in reported cases and by submissions given to her by counsel, who in turn were influenced by the earlier cases.

What is needed, in my view, is an understanding that you should only have sex with someone who is able to consent and gives and maintains consent throughout. The protection given by such a requirement is not confined to the criminal legal consequences. It protects both participants from serious harm. Secondly, although some capacitous people might struggle to articulate the precise terms of the criminal law in this regard, I do not agree that capacitous people have difficulty understanding that you should only have sex with someone who is able to consent and who gives and maintains consent.

It is something which any person engaging in sexual relations has to consider at all times. There may be occasions, I suppose, where someone genuinely makes a mistake about whether their sexual partner is giving or maintaining consent. But that circumstance, if it ever arises, is very different from the situation where one person does not understand that the other person has to give and maintain consent.

The Court of Appeal therefore set aside the declaration that JB had capacity to consent to sexual relations. However, whilst it could have made its own declaration, Baker LJ held that it was wrong to do on the specific facts of the case, and, in particular, the way in which the issue had been analysed before Roberts J.

He therefore held that the right course was to remit it to her to reconsider in light of the judgment and such further evidence as she would wish to seek. The court therefore remitted the case, making an interim declaration under s. This is an extremely ificant judgment, and it is very likely that the matter will not stop there and is likely to be considered together with the case of Re B.

It responds to the fact that individuals with impaired decision-making capacity are not always as some of the cases could be read as suggesting purely passive recipients of sexual activity initiated by others, but can also be sexual beings wishing to express themselves by initiating sexual activity. One very important consequence of this decision is that — in principle — it opens the way for a court to take the view that it is not bound by s. Would it be possible to say a court and I very specifically say court here, as it would be very challenging for anyone to take steps here without judicial imprimatur can make a best interests decision behalf of someone to engage in sexual relations?

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And, if so, would this be the way in which to resolve the pragmatic but to purists, problematic compromise hammered out in the TZ cases decided by Baker himself to the situation where the person is undoubtedly at risk in some sexual encounters, but not in others? That compromises is to find that the person has capacity to consent to sexual relations but does not have capacity to make decisions as to contact, thereby enabling best interests decisions to be made in relation to contact where it is clear that the contact is for purposes of sex.

Another important consequence is that it clears the way to resolving what was otherwise a very odd potential outcome. By framing the test by reference to consent, it would be possible to find that that a person could not consent solely because they did not understand that their partner needed to consent. But — as we pointed out in our note upon the first instance decision [1] — that could mean that a partner who freely initiated sexual activity with them could face criminal consequences even if there was no suggestion that the partner had any impairment in their decision-making.

The interaction between the MCA and the Sexual Offences Act remains complex and difficult, but this judgment may at least have helped clear the path of some of the more tangled undergrowth. You must be logged in to post a comment. This site uses Akismet to reduce spam. Learn how your comment data is processed. As he then noted: As Baker LJ noted: As Baker LJ then held: However, Baker LJ held that none of the reasons stood up to scrutiny: However, he did: However, he made clear: In summary, therefore: Comment This is an extremely ificant judgment, and it is very likely that the matter will not stop there and is likely to be considered together with the case of Re B.

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Local sex Keene

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Sex and the limits of fluctuating capacity