Consent to engage in sex: A Local Authority v JB…

The judgment handed down today in A Local Authority v JB (by his litigation friend the Official Solicitor) [2020] EWCA Civ 735 will probably not be the last word in the difficult question as to whether individuals with learning difficulties have the capacity to engage in sexual relations, but it is a welcome clarification on an important issue in this difficult area.

The key question in the case was whether a person needed to understand that sexual relationships should only occur in circumstances where both parties give consent in order to have capacity to engage in sexual activity. At first instance, Lambert J had been persuaded that a person with learning difficulties did not need to understand that the other person had also to be a willing participant in the sexual act before having the capacity to engage in sexual relations. That decision, to say the least, raised eyebrows amongst practitioners who regularly wrestle with these difficult problems in the Court of Protection.

That approach has been firmly quashed by the impressive and well-reasoned judgment by Baker LJ in JB. In summary, the Court of Appeal unanimously (The President, Baker and Singh LJs) decided that the relevant information which a person needs to be able to understand in order to have the capacity to engage in sexual relations includes an understanding that “you should only have sex with someone who is able to consent and gives and maintains consent throughout”. This is plainly sensible and appropriate guidance.

At paragraph 100, Baker LJ who gave the only substantive judgment, summarised the information which was likely to be relevant to any decision to engage in sexual relations as follows:

“(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”.

However, importantly, the Judge did not determine the question as to whether all of this information needs to be understood before any person could engage in sexual relations in any circumstances. But is plainly correct because, for example, a woman beyond childbearing years does not have to be concerned with the risk of pregnancy, and equally there is no risk of pregnancy in same-sex relationships. However, the judgment is welcome in emphasising the importance of understanding the rights of the other person in any capacity to engage in sexual relations.

The Court drew heavily on the reasoning in the 2019 decision, B v A Local Authority [2019] EWCA Civ 913. That case is the subject of an application to appeal to the Supreme Court which has been stayed pending final resolution of the capacity issues. However, permission may well be given and thus these issues may be ventilated before the Supreme Court in the coming months. Nonetheless, the decision in JB appears sensible, balanced and should be welcomed by those acting in this difficult area.

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David Lock QC

David Lock QC appeared for the successful local authority appellant in B v A Local Authority [2019] EWCA Civ 913.