JB (Capacity: Consent To Sexual Relations And Contact With Others) [2019] EWCOP 39

​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 MCA 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.

The P has a complex diagnosis of autism combined with impaired cognition. Since May 2014 he has been living in a supported residential placement where he is subject to a comprehensive care plan which imposes significant limitations on his ability to function independently. In particular, there are restrictions on his access to the local community where he lives, his contact with third parties, and his access to social media and the internet. The principal issue at this stage is whether he has capacity to consent to sexual relations. The case for the LA was:

"The critical point is that, unless an understanding that the other person must be able to and must in fact consent is required for capacity in relation to sex, the criminal law would not be sufficient to protect P; and that, if the criminal law is left to regulate such conduct, it will mean that sexual offences will be committed by incapacitated people (assuming they have criminal responsibility) before the law will intervene to prevent such damaging conduct by the imposition of criminal restrictions. To permit such a situation to continue would be a derogation of responsibility by the Court of Protection."

The court ruled that the perceived risk is to the 'safety' of those women with whom the P may attempt to have sexual relations. That risk flows from the present formulation of the law that there is no requirement within information relevant to the decision within section 3(1) of the MCA 2005 that P must specifically understand that, absent consent, attempting sexual relations with another person is likely to breach the criminal law.

Read the full text of the judgment on Bailii