AUGUSTINE LEE
Getting Tested for Sexual Relations: Critiquing the United Kingdom’s Mental Capacity Act 2005 Through
A Local Authority v JB
Submitted for the LLB (Honours) Degree
Faculty of Law
Victoria University of Wellington
2020
If New Zealand adopts the Mental Capacity Act 2005 of the United Kingdom, changes must be made to address its deficiencies in assessing capacity to consent to sexual relations. The test for capacity to consent to sexual relations does not work where the risk of harm is to people other than the protected party. It was designed to deal with situations where the risk of harm was to the protected party and not to others. The novel case of A Local Authority v JB involved a protected party, JB, who did not understand the need for parallel consent before and during sexual relations. The Local Authority was concerned that other people would be at risk of harm if JB could have sexual relations. Namely, others could be vulnerable to rape and sexual violation if they withdrew consent during sexual relations.
The multiple failures resulting from application of the existing test to the novel facts in A Local Authority v JB demonstrated the pressing need for a new test. The recent United Kingdom Court of Appeal decision in Re JB (Capacity: Sexual Relations) was correct in creating a new variation of the test for capacity to consent to sexual relations. The new test protects others from harm, requiring that the protected party understands the need for parallel consent to sexual relations. The existing test will remain to assess capacity to consent to sexual relations where the protected party desires sexual relations and the only risk of harm is to the protected party themselves.
Key Words
Mental Capacity Act 2005; Mental Health Act 1983; A Local Authority v JB; Re JB (Capacity: Sexual Relations); Capacity to Consent to Sexual Relations.
Contents (References - table of contents)
I Introduction... 4
II The Test is Not Designed for the Facts of JB... 6
A The MCA
... 6
B Typical Capacity Questions
... 7
C Sexual Relations
... 9
III Consequences of Applying the Test... 12
A Flawed Reasoning
... 13
1 Distinguishable Precedent
... 13
2 Balancing of Principles
... 15
B Practical Consequences
... 18
1 Unworkable Law
... 19
2 Derogation from Statute
... 21
IV Improving the Test... 23
A Re JB Test
... 23
B Pre-JB Test
... 25
C Additional Comments
... 25
V Conclusion... 26
VI Bibliography... 27
I Introduction
In 2019, the United Kingdom Court of Protection sent shockwaves through the community with the finding in A Local Authority v JB (JB).0F1 JB was found to have capacity to consent to sexual relations amidst controversial circumstances.
The novel case of JB involved a 36-year-old man (JB) with Asperger’s Syndrome and impaired cognitive abilities. JB wanted to go partying and ultimately find a girlfriend with whom he could have sexual relations.1F2 His living arrangements were said to represent unfair and unwarranted limitations on his ability to socialise freely.2F3 The primary purpose of these restrictions was to prevent JB from behaving in a sexually inappropriate manner towards women.
In assessing JB’s capacity to consent to sexual relations, clinical psychologists recorded him as saying:3F4
“If a person gives consent then she’s already given consent and you have to go through with it to the end …. She can’t change her mind if you are already doing it. Cos it’s her fault in the first place for saying yes. Already said yes and you’ve got your chance.”
The issue to be decided was whether the risk of JB harming others ought to be considered in assessing his capacity to consent to sexual relations.4F5 Clinical psychologists described JB as, “visibly shaken at the idea that a partner would be able to withdraw consent”.5F6 If JB does not understand that someone can withdraw consent to sexual relations, then there is a very real risk of him raping or sexually violating women. Such an outcome would also harm JB by exposing him to the rigours of the criminal law.
The case of JB puts the inadequacies of the Mental Capacity Act 2005 (MCA) under the microscope. It begs the question of how the court found that JB had capacity to consent to sexual relations? The primary reason is that the MCA test does not work well for scenarios
1 A Local Authority v JB [2019] EWCOP 39, [2020] 1 WLR 1.
2 At [4].
3 At [3].
4 Re JB (Capacity: Sexual Relations) [2020] EWCA Civ 735 at [14].
5 At [1].
6 At [14].
involving harm to other people. It focuses on keeping the protected party (P) from harm. It was designed for that purpose. Furthermore, the MCA does not provide adequate guidance on how to apply the principles of protection and autonomy to sexual relations. That leads to confused decisions which have adverse practical implications.
The matter is particularly relevant to New Zealand. New Zealand Law Society research scholar Alison Douglass believes that New Zealand should adopt the United Kingdom’s approach to testing capacity.6F7 If New Zealand adopts the United Kingdom’s approach, the fundamental flaws of the MCA must be addressed.
A tour through the history of mental capacity law in Part II demonstrates how its origins are rooted in protecting P from harm. The test in the MCA is that of the common law. It is designed to address typical capacity questions which, at most, consider the risk of harm to P. The test is not designed to address capacity to consent to sexual relations where there may be harm to others.
Part III examines the novel decision of JB where the most salient risk of harm was to others.7F8 JB applied the test for capacity to consent to sexual relations which had been developed to protect P from harm. Forcing that test on the facts of JB produced an unreasonable decision. That decision makes the existing law unworkable and creates even greater confusion on how the law ought to apply in the future.
The Court of Appeal in Re JB did not resolve the practical problems of the decision in JB.
Part IV will explore how the unnecessary distinction drawn in Re JB is the source of the problem. The solution is to have two variants of the test for capacity to consent to sexual relations.
7 Alison Douglass Mental Capacity: Updating New Zealand’s Law and Practice (Report for the New Zealand Law Foundation, Dunedin, July 2016) at [4.63] suggests the adoption of the capacity test in s 3 of the United Kingdom’s Mental Capacity Act 2005.
8 This paper is based on a critique of A Local Authority v JB [2019] EWCOP 39, [2020] 1 WLR 1. Shortly before submission, the Court of Appeal handed down the judgment in Re JB (Capacity: Sexual Relations) [2020] EWCA Civ 735. The latter will be considered where relevant.
II The Test is Not Designed for the Facts of JB
In general, the MCA does little to modify the common law and merely incorporates it into statute.8F9 The universal test of the MCA is found in s 3. It applies to all questions of capacity and is designed to provide a consistent set of rules to be applied “whether the decisions are life-changing events or everyday matters.”9F10 Even so, the first instinct when assessing capacity should be to look to relevant common law. That common law will assist one in applying the test to the facts. The MCA simply aims to clarify and improve upon existing common law principles,10F11 with an additional focus on autonomy.11F12 It also lists specific exceptions – decisions which can never be carried out under the Act.12F13 These decisions largely relate to matters which are either so personal to the individual concerned, or governed by other legislation.13F14
A The MCA
The MCA provides no substantive changes to the common law test for capacity to consent to sexual relations. It merely reiterates the importance of balance between protection and autonomy and adds in s 27 exclusions. Section 27 prohibits a decision being made on behalf of P, “consenting to have sexual relations”.14F15
Before continuing it is useful to lay out the statutory principles of the MCA and the general test for capacity. To find capacity, P must:15F16
(a) Understand the information relevant to the decision;
(b) Retain that information;
(c) Use or weigh that information; AND (d) Communicate their decision.
9 Mental Capacity Act 2005 Code of Practice (3rd edition, The Stationery Office, Norwich, 2007) at [1.6].
10 At [1.1].
11 At [1.6].
12 At [1.2].
13 At [1.10].
14 At [1.9].
15 Mental Capacity Act 2005 (UK), s 27(a)(b).
16 Section 3(1).
Finding capacity is a ‘functional’ test which assesses if P can make a specific decision at a specific point in time.16F17 The critical aspect to the test is emphasised above. Information relevant to the decision is determined by the existing common law with reference to the principles of the MCA. The common law permits a degree of flexibility, allowing judges to ‘adapt’ the test to the particular facts of each case.17F18
The principles of protection and autonomy found in the MCA and common law determine what judges include as relevant information. The balance between these is critical. The MCA’s Code of Practice refers to the importance of balance stating that:18F19
“The Act… aims to balance an individual’s right to make decisions for themselves with their right to be protected from harm if they lack capacity to make decisions to protect themselves.”
The MCA’s focus on autonomy aims to restore balance between autonomy and paternalism. In A Local Authority v H, Hedley J described the Court of Protection (COP) as having an “essential protective jurisdiction”.19F20 The perception of the time was that the courts were excessively paternalistic. To an extent that was true, and it was infringing on the rights of some. The MCA sought to restore balance to the court’s tendencies by greater emphasis of autonomy. In providing balance, the MCA did not perpetuate a “non- paternalistic ethos” as suggested by JB.20F21 It cannot have because autonomy unchecked by paternalism and protection would infringe rights. Equally, allowing one capacity to do something they do not have capacity to do leaves them vulnerable.
B Typical Capacity Questions
The test for capacity to consent to sexual relations will not work, where the risk of harm is to others, because it is not designed for that purpose. The test for capacity to consent to sexual relations is built on typical common law capacity questions. Typical capacity cases are concerned that P will be harmed if they are permitted to make a certain decision. The following cases provide difficult factual situations which demonstrate that the general test is designed to undertake the primary task of evaluating the risk of P being harmed.
17 Mental Capacity Act 2005 (UK), s 2(1).
18 London Borough of Tower Hamlets v NB and another [2019] EWCOP 27, [2019] COPLR 398 at [51].
19 Mental Capacity Act 2005 Code of Practice, above n 9, at [1.4].
20 A Local Authority v H [2012] EWHC 49 (COP), [2012] 1 FCR 590.
21 A Local Authority v JB, above n 1, at [79].
Cambridge University Hospitals NHS Foundation Trust v BF involves a decision on medical treatment.21F22 BF was in her mid-thirties and had paranoid schizophrenia due to the abuse of psychedelic drugs. Her schizophrenia is characterised by relapsing psychotic episodes. She was diagnosed with late stage ovarian cancer with six months to live if left untreated. Treatment required extensive removal of organs including the uterus, cervix, ovaries, fallopian tubes, and possible resection and colostomy. The question arose of whether BF had capacity to consent to medical treatment.
In evaluating information relevant to the decision, MacDonald J cited three important considerations focused on P’s risk of harm. That BF understand she has a tumour, that the cancerous tumour is life threatening, and the urgent need for surgery. These elements are all self-centric and justifiably so. Ultimately, the decision which BF makes produces harms centred on her. If BF rejects treatment, then she is likely to die. BF bears the primary burden of her decision. Additionally, requiring understanding of self-centric factors is consistent with the promotion of autonomy under the MCA. Forgoing consideration of others sets a lower threshold to the understanding requirement. That makes is easier for BF to achieve capacity.
Sheffield City Council v E and another involves a decision on capacity to consent to marry.22F23 E is a young woman of 21 with hydrocephalus and spina bifida. SCC alleges that E functions at the level of a 13-year-old, that she has limited independence skills and that she is very vulnerable to exploitation. Her partner is a 37-year-old with a substantial history of sexually violent crimes including eight years imprisonment for buggery of a minor. E and S met in January 2004, began living together that June and had plans to marry on 18 September 2004. The SCC were concerned that E's relationship with S had become abusive, and that E was at risk of domestic violence and sexual exploitation at S's hands.
Munby J found that there were two elements to information relevant to the decision to marry:23F24
(1) Does he or she understand the nature of the marriage contract?
(2) Does he or she understand the duties and responsibilities that normally attach to marriage?
22 Cambridge University Hospitals NHS Foundation Trust v BF [2016] EWCOP 26, [2016] COPLR 411.
23 Sheffield City Council v E and another [2004] EWHC 2808 (Fam), [2005] 2 WLR 953.
24 At [141].
After an extensive analysis of case law, Munby J summarised the duties and responsibilities of marriage as follows:24F25
Marriage is a contract formally entered into. Parties must live together and love one another to the exclusion of all others. It becomes a relationship of mutual and reciprocal obligations typically involving the sharing of a common home, domestic life, and the right to enjoy each other's society, comfort and assistance.
These elements are focused on a simple degree of understanding required by E. She must understand the obligations she is taking on. There is absolutely no consideration of the harm that E could bring to herself in marrying. In fact, Munby J says, “The test is capacity to understand the nature of the contract of marriage.… not capacity to understand the implications of a particular marriage.”25F26 He continues, “Whether A marries B or marries C, the … nature is the same…. The emotional, social, financial and other implications for A may be very different but the nature of the contract is precisely the same”. That statement, in no unclear terms, dismisses all consideration of harms that could arise to P and to others.26F27
C Sexual Relations
The general test of s 3 provides the skeleton for determining capacity to consent to sexual relations. It is fleshed out by the common law, the principles of the MCA, and the s 27 exceptions of the MCA. However, most of the common law consists of first instance decisions irreconcilable between themselves.27F28 Few are contested to appellate courts because they often achieve the correct result on their facts.28F29 The MCA provides no additional guidance on how to apply the general test to capacity evaluations on consent to sexual relations. That means that the primary source of authority under the MCA remains unhelpfully confused.
Ignoring the fact that the common law is in an unsatisfactory state, it can be said that the current test is not designed to assess capacity to consent to sexual relations where there may be harm to others. Historic cases have only assessed whether P has capacity to consent
25 Sheffield City Council v E and another, above n 23, at [141].
26 At [85].
27 At [85].
28 A Local Authority v H, above n 20, at [18].
29 At [19].
to sexual relations in circumstances where P is at risk of harm. Previous cases apply a low threshold for the test of capacity where the court believes it is acceptable to allow sexual relations to continue. In keeping with a low threshold, consideration of the harm to others was omitted. Therefore, the existing test for capacity to consent to sexual relations cannot be applied to JB because of the material distinction that JB may harm others.
It is useful to explain how the law of capacity to consent to sexual relations evolved. The evolution provides insight into the test’s core focus on harm to P. The existing common law test for capacity to consent to sexual relations originates from Re MB (Medical Treatment).29F30 In that decision, Butler-Sloss LJ coined the test which can be found in s 3 of the MCA.30F31 The case involved P, an intellectually disabled mother, who required a caesarean section to safely deliver her unborn child. The mother kept withdrawing consent at the last instance due to a needle phobia. While the facts involved an unborn child, the court was firm in stating that it “does not have the jurisdiction to take the interests of the foetus into account”.31F32 In stating so, the court only considered P’s understanding of harm.
Consideration was confined to the harm which the mother could endure. The test explicitly did not consider the other life involved.
As the test developed, the courts ruled out deciding capacity to consent to sexual relations on the merits of P’s sexual partner. The Court of Appeal in IM v LM said that the court did not want to conduct a character assessment every time P changed sexual partner.32F33 It also raised the question of whether that was even the role of the court in the first place. To avoid that predicament, they concluded that “capacity to consent to sexual relations can only be assessed on a general and non-[person] specific basis.”33F34
While most people would agree that it is not ideal for the courts to be making character assessments, it is an equally undesirable to omit consideration of the other person necessarily involved in sexual relations. It creates a conceptual problem because, as Baroness Hale of Richmond’s stated:34F35
30 Re MB (Medical Treatment)[1997] 2 FLR 426.
31 At 436.
32 At 440.
33 IM v LM [2014] EWCA Civ 37, [2015] Fam 61 at [77].
34 At [77].
35 R v Cooper (Gary Anthony) [2009] EWCA Crim 2761, [2009] 1 WLR 1786.
“My Lords, it is difficult to think of an activity which is more person – and situation – specific than sexual relations. One does not consent to sex in general. One consents to this act of sex with this person at this time and in this place.”
Baroness Hale’s comment from the criminal law was pushed aside by subsequent COP cases on the basis that there was a distinction between the criminal and civil law.35F36 The criminal law was said to be more retrospective – looking at a specific person at a specific time.36F37 In contrast, the COP is more prospective, contemplating assessment of capacity to consent with both specific individuals and generally.37F38
In 2019, the Court of Appeal in B v A Local Authority reaffirmed the “general and issue specific” approach for slightly different reasons.38F39 They believed that the nature and quality of the act does not vary from person to person. That approach is neatly summarised in Re MM which states that:39F40
“A woman either has capacity to consent to 'normal' penetrative vaginal intercourse, or she does not. It is difficult to see how it can sensibly be said that she has capacity to consent to a particular sexual act with Y whilst at the same time lacking capacity to consent to precisely the same sexual act with Z.”
Prima facie, ruling out consideration by the court of one’s sexual partner could have a profound negative effect on the test for capacity to consent to sexual relations. In cases involving multi-decade-long marriages, P would often fail the test on the truly general capacity to consent to sexual relations threshold. Yet the court would find them capacitous because of their long spousal relationship. Assessing capacity to consent to sexual relations without person-specific consideration would result in the application of a higher threshold to ensure P truly had general capacity. That may preclude many relationships from an ongoing sexual relationship. However, judges got around this troublesome development by the addition of qualifiers to the finding of general capacity.
36 Tower Hamlets London Borough Council v NB (Consent to Sex) [2019] EWCOP 27, [2019] COPLR 398 at [62].
37 At [62].
38 A Local Authority v JB, above n 1, at [15].
39 B v A Local Authority [2019] EWCA Civ 913, [2019] 3 WLR 685 at [49].
40 Re MM; Local Authority X v MM (By the Official Solicitor) and KM [2007] EWHC 2003, [2009] 1 FLR 443 at [87].
Many cases where P was at risk of harm conducted legal gymnastics to find capacity to consent to sexual relations. A paradigm example is Tower Hamlets London Borough Council v NB (NB).40F41 The Court allowed sexual activity to continue between a married couple of 27 years because they deemed the risk of sexual violation as being sufficiently low. Hayden J found that NB had capacity to consent to sexual relations ‘generally’ with person-specific consideration of her individual circumstances. In essence, NB had capacity to consent to sexual relations generally (but only with her husband).
NB demonstrates that the test for capacity to consent to sexual relations was only just workable in situations where P had an existing sexual partner. Applying that same test to situations like JB where there is a risk of harm to others would stretch the test beyond reason. The trouble is that the court is now assessing all matters of capacity to consent to sexual relations in ‘general’. That opens the gateway to saying that the same low threshold applied in NB ought to apply to the facts of JB.
On the surface, it appears that the test in NB can be applied to JB. JB desires truly general capacity to consent to sexual relations and NB undertook what appears to be a general assessment of capacity to consent to sexual relations. However, NB cannot be applied to JB because the low threshold test in NB was not designed to consider the risk of harm to others. Applying a low threshold of understanding to JB will result in a finding of capacity where it ought not to be found. The result will be a very real risk of JB sexually violating others and being exposed to the rigours of the criminal law.
III Consequences of Applying the Test
JB applies the test for capacity to consent to sexual relations which has been developed to protect P from harm. That test was not designed to deal with the novel situation of JB where others were at risk of harm. The reasoning which applied to situations where P is at risk of harm cannot be imported to JB even though they appear to address matters of capacity to consent to sexual relations ‘generally’. By importing the reasoning of previous cases in JB, the COP produced a decision which is fundamentally flawed. The practical result is that the law becomes unworkable and the purpose of the MCA becomes frustrated.
41 Tower Hamlets London Borough Council v NB (Consent to Sex), above n 36.
A Flawed Reasoning
The flawed reasoning in JB occurs because the court wrongly applies past cases on capacity to consent to sexual relations as precedent cases. Past cases cannot be applied because they are distinguishable on the facts, focusing on the risk of harm to P. The focus of harm to P also means that the balance between protection and autonomy, fundamental to the MCA test, becomes dangerously skewed towards autonomy.
1 Distinguishable Precedent
The overarching problem with the precedent cited in JB is that it is largely distinguishable.
The judges in each case twist the test in unusual ways to achieve the correct practical outcome. Each case is essentially decided on its unique facts. Two classic examples were cited in JB: The Court of Appeal in B v A Local Authority, and A Local Authority v H.41F42 B v A Local Authority applied the test to prevent B, a 31-year-old woman with learning difficulties, from achieving capacity to consent to sexual relations. The aim was to stop her relationship with Mr C, a man in his seventies who had been convicted of multiple sexual offences and was subject to a Sexual Harm Prevention Order. The Court’s finding was contrary to that found by medical expert advice on more than one occasion.42F43 The reason for finding incapacity was because they did not want her to live with Mr C and fulfil her desire to have children with him.43F44 They cited vague reasons for incapacity; she did not understand the risk of sexually transmitted infection through unprotected sexual intercourse and the protection against infection provided by the use of a condom.44F45
In A Local Authority v H, the court found that H lacked capacity to consent to sexual relations.45F46 H was a 30 year old with learning difficulties, was highly sexualised and, given her autistic condition, was highly vulnerable.46F47 The judge said, “At least one man had been convicted in respect of a sexual offence against her—attempted rape in 2003—and others were engaging in sexual behaviour which, whilst consented to by her, could have been seen
42 See B v A Local Authority, above n 39. See also A Local Authority v H, above n 20.
43 B v A Local Authority, above n 39, at [61].
44 At [62] – [66].
45 At [57].
46 A Local Authority v H, above n 20.
47 At [8].
as unconventional and exploitative.”47F48 There were vague reasons given as to her lack of capacity.48F49 It was said that H did not adequately understand the health risks associated with unprotected sex although she had suffered from a sexually transmitted disease before. Yet the underlying concern throughout the judgment appeared to be centred on her difficulty in saying no to sexual relations – effectively becoming a victim of rape.49F50
JB is also distinguishable from previous cases because it requires a general finding of capacity to consent to sexual relations. Past cases appear to make general findings of capacity to consent to sexual relations. However, they are not truly general findings of capacity because they find capacity to consent to sexual relations ‘generally’ with person specific qualifiers. They omit elements of the general test to suit the specific factual circumstances of each case.
JB claims that past cases are equally applicable to JB because these are all general assessments of capacity to consent to sexual relations. Roberts J cites the Court of Appeal in IM v LM.50F51 She mentions that IM v LM approved established law that the court does not look at a person specific analysis, rather a “general” one.51F52 While it is correct that the courts start from a general assessment, they also include fact specific qualifiers. The use of fact specific qualifiers, which make a ‘general’ finding of capacity tailored to the facts of that case, was approved by the Court of Appeal in PC v A Local Authority and Re JB.52F53
NB also involved a stereotypical example of the COP appearing to find general capacity to consent to sexual relations but adding fact specific qualifiers.53F54 The case of NB involved NB who had a ‘general global learning difficulty’ who had been married to her husband AU for the last 27 years.54F55 After “a number of remarks made” by NB to her dentist, a
48 A Local Authority v H, above n 20, at [8].
49 At [28] – [31].
50 At [8], [9], [13], [28].
51 A Local Authority v JB, above n 1, at [39].
52 At [39].
53 See PC v A Local Authority [2013] EWCA Civ 478, [2014 Fam 10 at [39]. See also Re JB, above n 4, at [48].
54 Tower Hamlets London Borough Council v NB (Consent to Sex), above n 36. See also IM v LM, above n 33; Re MM, above n 40; Tower Hamlets London Borough Council v NB, above n 36; X City Council v MB [2006] EWHC 168 (fam), [2006] 2 FLR 968; D Borough Council v AB [2011] EWHC 101 (COP), [2012 Fam 36]; A Local Authority v TZ (no2.) [2013] EWHC 2322 (COP), [2013] COPLR 477 for other examples.
55 Tower Hamlets London Borough Council v NB (Consent to Sex) [2019] EWCOP 17 at [3].
safeguarding enquiry was instigated.55F56 The COP was concerned that NB’s husband (AU) may be taking advantage of her. During the investigation AU abstained from sex with his wife NB.56F57
The court ultimately found capacity to consent to sexual relations ‘generally’ even though NB did not understand a core element of the general test – that unprotected sexual intercourse produces a risk of sexually transmitted infections.57F58 In essence, the court found capacity to consent to sexual relations in ‘general’ but with the qualification that the
‘general’ capacity was only with AU. NB did not need to understand the risk of sexually transmitted infections because it was not a salient risk in their monogamous relationship.
Therefore, the finding of capacity is not a truly general capacity to consent to sexual relations. That is significant because it counters the false assertion in JB that NB assesses capacity to consent to sexual relations in general and is therefore applicable on the facts.
The court in JB delivered a decision based on flawed reasoning; applying cases like NB which are distinguishable on the facts. JB becomes dangerous precedent when it applies cases that are not truly general findings of capacity. Applying the true approach of the Court of Appeal in PC v City of York Council and Re JB, JB can only apply past cases which share a similar “factual context”.58F59 JB is a novel situation requiring a truly general finding of capacity to consent to sexual relations without qualifiers. Since no past cases match this specific factual context, none of them ought to apply. The application of past tests to JB would be distinctly inappropriate. It sets the threshold unreasonably low for capacity to consent to sexual relations. That opens the gateway to find capacity in an absolute and unqualified sense leaving people like JB open to charges of rape and sexual violation. It produces a result which contradicts the protective purpose of the COP.
2 Balancing of Principles
The MCA test is heavily influenced by the balance between protection and autonomy.
Curtailing P’s autonomy becomes more justifiable where P is at greater risk of harm.
However, the existing test does not consider harm to others. There is no real risk of harm to JB and so the resulting balance found in JB is unreasonably skewed towards autonomy.
56 Tower Hamlets London Borough Council v NB (Consent to Sex), above n 36, at [4].
57 At [8].
58 At [55].
59 See PC v A Local Authority, above n 53, at [39]. See also Re JB, above n 4, at [48].
The reasoning in JB was flawed because it did not include the risk of harm to others when deciding the balance between protection and autonomy.
It is first useful to go through the principles of autonomy and protection. The primary role of the COP is often described as balancing these two key ideals to maximise rights.59F60 The first principle is individual autonomy. Section 1(2) of the MCA encourages autonomy by establishing a presumption of capacity. The theme of autonomy also rests at the heart of the United Nations Convention on the Rights of Persons with Disabilities 2006 (CRPD).60F61 Article 3 cites the general principles which include, at the top of the list,
“Respect for inherent dignity, individual autonomy including the freedom to make one’s own choices, and independence of persons.”61F62 Hayden J once said in NB that the role of the MCA is to “provide the fullest experience of life and with all its vicissitudes.”62F63 The next principle is that of protection and paternalism. Before the MCA affirmed the principle of protection, the courts understood it was their role to protect individuals from real possibilities of harm.63F64 B v A Local Authority clearly notes the protective role of the court saying, “there is a need to protect individuals and safeguard their interests where their individual qualities or situation place them in a particularly vulnerable situation.”64F65 While the role of the court is to be protective, Hedley J warned against “dressing an incapacitous person in forensic cotton wool”.65F66 The solution to Hedley J’s concern is found in the balance between autonomy and protection.
Sir Brian Leveson P in IM v LM starts his judgment by saying that balance between the principles is important because it determines when it is, “appropriate for society to intervene paternalistically in a decision or decisions that individuals make.”66F67 That decision, which relies on a correct balance,67F68 is significant because it becomes an abuse of state power when decisions are made on behalf of people who are capacitous. The balance
60 Mental Capacity Act 2005 Code of Practice, above n 9, at [2.4].
61 United Nations Convention on the Rights of Persons with Disabilities 2515 UNTS 3 (Signed 30 March 2007, entered into force 25 September 2008).
62 Article 3.
63 Tower Hamlets London Borough Council v NB (Consent to Sex), above n 36, at [56].
64 Re H (Minors) (Sexual Abuse: Standard of Proof) [1996] AC 563 (HL) at 576.
65 B v A Local Authority, above n 39, at [35].
66 Re P (Abortion) [2013] EWHC 50 (COP), [2013] COPLR 405.
67 IM v LM, above n 33, at [1].
68 A Local Authority v JB, above n 1, at [82].
between autonomy and protection is critical under s 3 of the MCA because it determines the information relevant to the decision. Getting the balance wrong will set the threshold for capacity either too high or too low. That will have a material impact on the capacity inquiry; either finding capacity where it does not exist or finding incapacity where capacity does exist.68F69
Viewing the facts of JB as a simple matter of balancing the two principles, the result appears to be the correct one. JB is personally at little risk of harm if it is found that he has capacity to consent to sexual relations. The low risk of harm to JB justifies a greater degree of autonomy and so capacity should be found to maximise the liberties of JB. That was the essence of the reasoning in JB.69F70
Although prima facie the reasoning in JB appears to be correct, it is flawed because the court ought to have considered the risk of harm to others. The Court of Appeal in Re JB affirmed the need for, “coherence between the MCA and the wider system of law and justice.”70F71 Finding JB capacity when there was more than a trivial risk of sexual violation does not assist the wider administration of justice. The COP must consider harm to others.
It is not an acceptable solution to suggest that the harms be dealt with retrospectively by the criminal law.71F72
JB justified its decision to ignore the risk of harm to others with the unreasonable application of the European Convention on Human Rights (ECHR).72F73 Reference is made to Article 8 of the ECHR throughout JB.73F74 Article 8 of the ECHR promotes the right to private and family life.74F75 JB found that the court has no right to get involved in what is, “a primal expression of our humanity and existence as sexual beings.”75F76 The apparent suggestion in JB is that Article 8 is a ‘supreme’ right greater than the rights of others.
However, the Court of Appeal in Re JB rejects this approach. Baker LJ specifically
69 B v A Local Authority, above n 39, at [33].
70 A Local Authority v JB, above n 1, at [81].
71 Re JB, above n 4, at [6].
72 A Local Authority v JB, above n 1, at [83].
73 At [88].
74 At [4], [58], [60], [77], [78], [80], [81], [99], [100].
75 European Convention for the Protection of Human Rights and Fundamental Freedoms 213 ENTS 221 (signed 8 March 1951, entered into force 1953), art 8.
76 A Local Authority v JB, above n 1, at [77].
mentions that, “we all accept restrictions on our autonomy… the rights in Article 8 are not absolute and must be balanced against other interests, including the rights of others.”76F77
B Practical Consequences
The finding that JB had capacity to consent to sexual relations meant that he was to be treated like any other person of full capacity in the matter of sexual relations. That was dangerous because JB did not understand the need for parallel consent. The lack of understanding was likely to result in criminal charges of rape if consent from the other party was withdrawn. The court knew they had to do something to limit JB’s ability to exercise capacity to consent to sexual relations.77F78 However, s 27 of the MCA prohibits such limitations to JB once capacity to consent to sexual relations is found. It meant that the court had to devise some alternative way to prevent JB from using his capacity to consent to sexual relations.
Where capacity is not found, the court can make best interests decisions on behalf of P.78F79 Alternatively, under narrow circumstances, the court may delegate this decision making authority to an appointed deputy.79F80 The court needed to make a best interests decision and restrict JB. To make a best interests decision they had to find JB incapacitous in some matter relating to sexual relations. They decided upon a finding that JB did not have capacity to engage in sexual relations. That finding allowed a best interests decision to keep JB under a comprehensive care plan restricting his ability to access the local community.
The court now has two tests, capacity to consent to sexual relations and capacity to engage in sexual relations. That creates adverse practical consequences. The law of capacity to consent to sexual relations becomes unworkable and the court begins to exercise powers it never was intended to have under the MCA. These concerns remain even after the Court of Appeal decision in Re JB.80F81
77 Re JB, above n 4, at [98].
78 A Local Authority v JB, above n 1, at [96].
79 Mental Capacity act 2005 (UK), s 16(2)(a).
80 Section 16(2)(b).
81 Re JB, above n 4, at [91] – [95].
1 Unworkable Law
Artificial separation of capacity to consent to sexual relations and capacity to engage in sexual relations leaves the law in an extremely confused state. The law becomes almost unworkable because it previously operated on the premise that engage was a subset of consent. The separation of the two principles ruins whatever efficacy remains of the existing case law. Furthermore, separation casts an even hazier shadow on future cases.
The legal test for capacity to consent to sexual relations was built on the premise that engage was a subset of consent. At the heart of past cases is the understanding that a finding of capacity to consent to sexual relations allows one to engage in sexual relations.81F82 That was what made the decision so important in many cases. The court was deciding whether one had capacity so they could continue to engage in sexual relations. That view was somewhat affirmed in the MCA which is largely an attempt to summarise the common law.
Section 27 describes the assessment as, “capacity to consent to have (i.e. engage in) sexual relations”. No case considers whether P has capacity to consent to sexual relations followed by whether they have capacity to engage in it.
JB cites A Local Authority v TZ (No. 1) as authority for the separation of capacity to consent to sexual relations and capacity to engage in sexual relations because Baker J (as he was then) found that TZ could “consent to and engage in sexual relations”.82F83 However, closer inspection of Baker J’s judgment reveals that the complete analysis was focused on capacity to consent to sexual relations.83F84 There was no distinction during the judgment between capacity to consent and capacity to engage. In fact, he referred to the issue as,
“capacity to consent to engage in homo-sexual relations” thereby suggesting their synonymity.84F85 It was only in the final statement that Baker J concluded TZ had the capacity to consent to and engage in sexual relations.85F86 The same mistake was made by the Court of Appeal in Re JB where the Court quotes Munby J in X City Council v MB as separating
82 See list of cases, above n 54.
83 Discussion on capacity to consent begins in A Local Authority v TZ (No 1) [2013] EWHC 2322 (COP), [2013] COPLR 477, at [50]; A Local Authority v JB, above n 1, at [93].
84 See A Local Authority v TZ (No 1) [2013] EWHC 2322 (COP), [2013] COPLR 477.
85 At [28].
86 At [58].
the analysis into two questions.86F87 Again, closer inspection of the case reveals that Munby J only undertook an analysis of capacity to consent to sexual relations.87F88
Drawing a distinction between capacity to consent to sexual relations and capacity to engage in sexual relations ruins the coherence of existing case law. There are three possible scenarios of how historic case law will be affected by the separation undertaken by JB. The first scenario is that the whole line of historic cases is wrong – they should have assessed capacity to engage in sexual relations.88F89 The second scenario is that you need both types of capacity to allow sexual relations. The third scenario is that you need one of either capacity to consent or capacity to engage to find capacity for sexual relations.
It is unlikely that the first scenario is correct. While JB does not elaborate on the test for capacity to engage in sexual relations, the fact JB does not meet this suggests it is a much higher threshold. If the whole line of historic cases were wrong, then they must apply the new test with its higher threshold. However, application of the higher threshold test in capacity to engage in sexual relations would likely prevent a lot of protected parties from sexual relations.89F90 That would go against the principle of autonomy. People like NB would be prevented from sexual relations with her husband because they would not meet the higher threshold.90F91 The unlikelihood of scenario one was confirmed by the Court of Appeal in Re JB. Though Re JB states, “we are moving on from the previous case law” that referred to the fact that a new test was being formed for the novel facts of JB.91F92 The old test was not being eradicated.
The second scenario is also unlikely to be correct because it would mean that past cases only conducted half of the required analysis. Requiring capacity to consent to sexual relations and capacity to engage in sexual relations would mean that all the previous cases allowing sexual relations were incomplete. That is not plausible. It suggests that in those cases, capacity to consent to sexual relations included capacity to engage in sexual relations.
87 Re JB, above n 4, at [26].
88 X City Council v MB, above n 54.
89 Elizabeth Fox “New rules of engagement: capacity to accept sex ... but not to offer it?” (23 June 2020) UK Medical Decision Law Blog <www. ukmedicaldecisionlawblog.co.uk> cites Re JB, above n 4, at [93].
90 See list of cases, above n 54.
91 Tower Hamlets London Borough Council v NB (Consent to Sex), above n 18.
92 Re JB, above n 4, at [99].
The third scenario was the confirmed result of the Court of Appeal in Re JB. One needs either capacity to consent to sexual relations or capacity to engage in sexual relations. Yet it remains unclear in which situation capacity to consent is required as opposed to capacity to engage. The suggestion is that the test for ‘engage’ is required where sexual relations are likely to be initiated by P. Capacity to ‘consent’ is required where sexual relations are likely to be proposed by someone other than P. While this makes sense intellectually, it is likely to cause problems in practice.
In practice the distinctions drawn may be hard to apply.92F93 The test for capacity to consent to sexual relations works well in cases like NB where they are only seeking sexual relations with their spouse.93F94 However, what happens in cases where P is like JB, wanting to engage in more casual sexual relations? Those situations may involve both being prepositioned to and propositioning. There are also additional problems which may arise in the application of the tests. Take the situation of JB where he is found to have capacity to consent to sexual relations, but he does not have capacity to engage in sexual relations. That means someone could approach JB, propose to have sexual relations, and JB could accept. However, what would happen if, during the sexual activities, the other person withdraws their consent? JB could still end up raping the other person. The Court of Appeal did little to clarify how the test would work with such concerns. It is yet to be seen if the case will be appealed to the Supreme Court and what they may do.
2 Derogation from Statute
The artificial separation of capacity to consent to sexual relations and capacity to engage in sexual relations results in a gross derogation from the MCA. It allows the courts to bypass s 27 of the MCA and gives the court the ability to decide on matters relating to P and how they partake in sexual relations. This was intended to be prevented by s 27.
Section 27 of the MCA prevents best interests decisions on P “consenting to have sexual relations”. The aim is to avoid excessive involvement of the state in personal lives.94F95 It presumes a binary decision: P either does or does not have capacity. As JB pointed out, it is simply a matter of having capacity to consent to sexual relations, or being, “potentially
93 Fox “New rules of engagement: capacity to accept sex ... but not to offer it?”, above n 89.
94 Tower Hamlets London Borough Council v NB (Consent to Sex), above n 18.
95 Mental Capacity Act 2005 (UK), s 27(1)(b).
consigned to celibate abstention”.95F96 A finding of capacity should only occur when the judge is satisfied P has the full ability to make all decisions related to having sexual relations. That includes capacity to decide who is a safe partner, and capacity to decide what support P is likely to require when having sexual relations. Once capacity is found, a subsequent best interests decision cannot be made.
The hard line drawn by s 27 of the MCA prevents the state from being unreasonably involved in the personal life of P. The judge can only determine if P has capacity to consent to have sexual relations. If capacity to consent to sexual relations is not found, the court cannot consent on P’s behalf. Effectively, the court cannot make best interest decisions.
Allowing best interests decisions in this personal area would effectively amount to the state deciding when P can and cannot engage in sexual relations. That would be a gross abuse of state power. If the state is deciding, for example, what support P needs before they can consent to have sexual relations they would functionally be deciding when P can partake in sexual relations. That could not have been the intention of the MCA as it would involve the court trying to rationalise decisions in a matter which, “ow[es] more to instinct and emotion than to analysis”.96F97
Effectively, the MCA prohibits the courts from making best interests decisions on P’s capacity to consent to have sexual relations. The decision cannot be delegated to a deputy.97F98 However, by using the word “engage”, the court sidesteps s 27 and can make best interests decisions for P or delegate that power to a deputy or local authority. By separating capacity to consent and capacity to engage in sexual relations into two categories, the court can decide, or delegate decision making to the local authority, in matters concerning capacity to engage in sexual relations. This is a gross derogation from the MCA.
In JB, power to make best interests decisions on P’s capacity to engage in sexual relations was handed on to the Local Authority. After finding that “it is not for this court now to determine whether or not [JB’s] aspirations may ultimately be capable of realisation,”98F99 the court offloads that determination to the Local Authority. It asks them to put in place a proper care and education plan and suggests the lack of understanding can be educated
96 A Local Authority v JB, above n 1, at [78].
97 Tower Hamlets London Borough Council v NB (Consent to Sex), above n 18, at [80].
98 Mental Capacity Act 2005 (UK), s 16(2)(b).
99 A Local Authority v JB, above n 1, at [100].
away.99F100 In essence, it is the responsibility of the Local Authority to educate JB until he understands the concept of parallel consent. Only then can the Local Authority let him have sexual relations. Leaving that decision to the Local Authority is a gross derogation from the MCA.
IV Improving the Test
Creating a conceptually neat legal test for capacity in the complex area of sexual relations is an unenviable task. Not only would such a test need to allow room for the courts to move, but it cannot be as amorphous as it is now. Yet the challenge presented cannot be reason to shy away from the task. The Court of Appeal in Re JB attempted to smooth over the law but practical issues in the application of the test remain.
The solution is to have two variants for the test on capacity to consent to sexual relations.
The first variant can be referred to as the ‘pre-JB’ test. The second variant can be referred to as the Re JB test and will assess capacity to consent to sexual relations in general.100F101 The Re JB test will apply in all scenarios as the default test unless P can justify why the lower threshold pre-JB approach ought to apply.
The Re JB variant will apply the higher threshold requirement that P must understand the need for parallel consent before and during sexual relations. It is effectively the test found in Re JB with slight modifications.101F102 The pre-JB test may apply where allowing a lower threshold promotes the autonomy of P and where it can be demonstrated that it is only P at risk of harm.
A Re JB Test
The Re JB test will require a high threshold of understanding to find capacity to consent to sexual relations in general. The understanding requirement reflects the fact that there may be severe implications to a finding of capacity where capacity to consent to sexual relations does not exist.
100 At [82], [96].
101 Re JB, above n 4, at [93].
102 At [100].
For there to be capacity to engage in (‘engage in’ will later be modified to ‘consent to’) sexual relations the Re JB test requires that P understands all of the following:102F103
(1) the sexual nature and character of the act of sexual intercourse, including the mechanics of the act;
(2) the fact that the other person must have the capacity to consent to the sexual activity and must in fact consent before and throughout the sexual activity;
(3) the fact that P can say yes or no to having sexual relations and is able to decide whether to give or withhold consent;
(4) that a reasonably foreseeable consequence of sexual intercourse between a man and woman is that the woman will become pregnant;
(5) that there are health risks involved, particularly the acquisition of sexually transmitted and transmissible infections, and that the risk of sexually transmitted infection can be reduced by the taking of precautions such as the use of a condom.
The first modification to the Re JB test involves reframing the wording from capacity to engage in sexual relations to capacity to consent to sexual relations. The simple change in wording better reflects the true nature of the test – the pre-JB and Re JB tests are essentially two variants of the same capacity assessment. They both assess capacity to consent to sexual relations. The word engage should be removed to avoid any unnecessary confusion and to prevent the court from sidestepping s 27 of the MCA.
Keeping the two tests as variants of the same assessment on capacity to consent to sexual relations prevents the court from making best interests decisions which abuse state power.
For reasons previously explained, reverting to the word ‘consent’ prohibits the courts from making best interests decisions for P “consenting to have sexual relations.”103F104 It prevents the courts from making decisions for P which are far too personal.104F105 Reverting to the wording ‘consent’ prevents both the courts and appointed deputies from a power they were never intended to have.
The second modification is the removal of the unnecessary distinction between sexual relations being initiated by P and sexual relations being prepositioned to P. Instead, the Re JB test will become the default test for capacity to consent to sexual relations. Recall that the case of Re JB suggested that the pre-JB test would apply where sexual relations were proposed by someone else and that it would apply the Re JB test where P wishes to initiate
103 Re JB, above n 4, at [100].
104 Mental Capacity Act 2005 (UK), s 27(1)(b).
105 Mental Capacity Act 2005 Code of Practice, above n 9, at [1.9].
sexual relations with others.105F106 That distinction would create problems in its application.
Setting the Re JB test as the default test for capacity to consent to sexual relations avoids these complexities.
B Pre-JB Test
The pre-JB test is essentially the Re JB test without the requirement of parallel consent found in (2). Unlike the Re JB test which requires understanding of all five elements for there to be capacity to consent to sexual relations in general, the pre-JB test may be able to include person specific context to the test’s application.106F107 For example in Re TZ, a case involving homosexual relations, Baker J (as he was then) suggested there may not be a need to consider an understanding of the risks of pregnancy.107F108
Having proposed improvements for the Re JB test, it is worth mentioning an improvement for the pre-JB test. The pre-JB test should be more transparent in its approach and acknowledge that there is a person-specific consideration. While the overall focus remains on P’s protection, the courts are conducting something between a truly general assessment and a person specific assessment. To the extent required to ascertain whether P will be at risk of harm, the court will look at the other person engaged in sexual relations with P.
They are considering the qualities of the other person involved (who is not P) but are not undertaking a refined analysis with a defined test. Although this is getting close to a person specific assessment, it best reflects the true nature of sexual relations.
C Additional Comments
An additional point worth noting is the possibility, glossed over in JB, that the protection of others falls more aptly under the Mental Health Act 1983 (MHA) than the MCA.108F109 The question of sexual relations in JB is a difficult one which sits somewhere between the MCA and MHA. On the facts of JB, it appears more appropriate to deal with the matter under the MCA as a question of capacity. Sectioning under the MHA would appear to be an unnecessary depravation of liberty to people like JB.
106 Re JB, above n 4, at [93].
107 Tower Hamlets London Borough Council v NB (Consent to Sex), above n 18, at [48].
108 Re JB, above n 4, at [102].
109 A Local Authority v JB, above n 1, at [88].
V Conclusion
The decision in JB demonstrates the desperate need for a new test for capacity to consent to sexual relations where the risk of harm is to others. The pre-JB variation, which the court in JB tried to apply, was not designed to consider the risk of protected parties harming others. It was built off the common law capacity test which was designed to keep the protected party safe from harm. Using the pre-JB variation of the test created a law with unworkable distinctions. Furthermore, it opened up the dangerous possibility that a court, or an appointed deputy, could make a best interests decision for P on their capacity to engage in sexual relations.
The court in Re JB attempted to remedy the situation by creating a new variation of the test for capacity to consent to sexual relations. This Re JB test, with a few modifications, ought to serve as the default test in assessing capacity to consent to sexual relations. It will apply a higher threshold and require all five elements to be satisfied before capacity is found. The pre-JB test for capacity to consent to sexual relations may be invoked in cases where only P is vulnerable to harm and it can be justified that allowing a lower threshold is best for P.
New Zealand’s Legislature must expressly address these issues in statute if it adopts the MCA and its capacity test. Decisions on capacity to consent to sexual relations are critical.
It is imperative that the test is designed to produce the correct decision so that the autonomy of protected parties is preserved, and harm does not occur.
VI Bibliography
A Legislation 1 United Kingdom Mental Capacity Act 2005 Mental Health Act 1983 2 United Nations
United Nations Convention on the Rights of Persons with Disabilities 2515 UNTS 3 (Signed 30 March 2007, entered into force 25 September 2008).
3 European Union
European Convention for the Protection of Human Rights and Fundamental Freedoms 213 ENTS 221 (signed 8 March 1951, entered into force 1953).
B Cases
1 United Kingdom
A Local Authority v H [2012] EWHC 49 (COP), [2012] 1 FCR 590.
A Local Authority v JB [2019] EWCOP 39, [2020] 1 WLR 1.
A Local Authority v TZ (No 1) [2013] EWHC 2322 (COP), [2013] COPLR 477.
A Local Authority v TZ (no2.) [2013] EWHC 2322 (COP), [2013] COPLR 477.
B v A Local Authority [2019] EWCA Civ 913, [2019] 3 WLR 685.
Cambridge University Hospitals NHS Foundation Trust v BF [2016] EWCOP 26, [2016]
COPLR 411.
D Borough Council v AB [2011] EWHC 101 (COP), [2012 Fam 36].
IM v LM [2014] EWCA Civ 37, [2015] Fam 61.
London Borough of Tower Hamlets v NB and another [2019] EWCOP 27, [2019] COPLR 398.
PC v A Local Authority [2013] EWCA Civ 478, [2014 Fam 1039].
R v Cooper (Gary Anthony) [2009] EWCA Crim 2761, [2009] 1 WLR 1786.
Re H (Minors) (Sexual Abuse: Standard of Proof) [1996] AC 563 (HL).
Re JB (Capacity: Sexual Relations) [2020] EWCA Civ 735.
Re MB (Medical Treatment) [1997] 2 FLR 426.
Re MM; Local Authority X v MM (By the Official Solicitor) and KM [2007] EWHC 2003, [2009] 1 FLR 443.
Re P (Abortion) [2013] EWHC 50 (COP), [2013] COPLR 405.
Sheffield City Council v E and another [2004] EWHC 2808 (Fam), [2005] 2 WLR 953.
Tower Hamlets London Borough Council v NB (Consent to Sex) [2019] EWCOP 17.
Tower Hamlets London Borough Council v NB (Consent to Sex) [2019] EWCOP 27, [2019]
COPLR 398.
X City Council v MB [2006] EWHC 168 (fam), [2006] 2 FLR 968.
C Journal Articles and Unpublished Articles
Alison Douglass Mental Capacity: Updating New Zealand’s Law and Practice (Report for the New Zealand Law Foundation, Dunedin, July 2016).
Elizabeth Fox “New rules of engagement: capacity to accept sex ... but not to offer it?” (23 June 2020) UK Medical Decision Law Blog <www. ukmedicaldecisionlawblog.co.uk>.
D Government Publications
Mental Capacity Act 2005 Code of Practice (3rd edition, The Stationery Office, Norwich, 2007).
Word count
The text of this paper (excluding table of contents, footnotes, and bibliography) comprises approximately 7,989 words.
