The question of capacity to consent to sexual relations is both sensitive and complex. It has potential wide-ranging implications, not only for the individual lacking capacity and those responsible for their care, but also for those who have sexual relationships with them. Any express consent by someone lacking capacity may be void, leaving the sexual partner at risk of conviction for a serious offence under the Sexual Offences Act 2003. The right to engage in sexual relations is safeguarded by article 8 of the European Convention on Human Rights (ECHR), which protects the right to a private and family life. However, this right must be balanced with a need to protect vulnerable adults. If too high a test is imposed this would prevent many adults with cognitive impairments from enjoying sexual relationships, which would amount to a huge infringement of their right to respect for private and family life.
Court of Protection judges have sought to ensure that those who lack capacity are not subject to an overly paternalistic approach or required to show that they have approached the decision with greater consideration and analysis than other adults. Often there is little or no such rational analysis when other adults make decisions about sex.
The recent Court of Appeal case of A Local Authority v JB [2020] EWCA Civ 735 reviewed the test to be applied when assessing a vulnerable person's capacity to have sexual relations. The case involved a 36-year-old man with a complex diagnosis of autistic spectrum disorder combined with impaired cognition. The court was invited to consider whether it was a necessary component of having capacity to consent to such relations, that the vulnerable person understands that the other person must consent. The judge who initially decided the case concluded that the man in question could not understand that fact, and this did not mean that he lacked capacity to consent to sexual relations. The local authority appealed and sought to persuade the Court of Appeal that the judge had been wrong to exclude this information from the information relevant to the test. The Court of Appeal, however, took a different view.
When considering whether, as a result of an impairment of, or disturbance in the functioning of the mind or brain, a person is unable to understand, retain, or use or weigh information relevant to a decision whether to engage in sexual relations, the Court of Appeal concluded that it will be relevant to consider whether they understand the following:
(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 they 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 sexually transmitted infections, and that the risk of such infections can be reduced by the taking of precautions such as the use of a condom.
It is unclear from the judgement in A Local Authority v JB whether the Court of Appeal felt it necessary for the vulnerable person to understand all of the factors above, or only some of them, to have capacity to engage in sexual relations.
The view of the Court of Appeal was that:
"It is unnecessary and inappropriate to consider whether a full and complete understanding of consent in terms recognised by the criminal law is an essential component of capacity to have sexual relations. What is needed, is an understanding that you should only have sex with someone who is able to consent and gives and maintains consent throughout...... "
The Court of Appeal set aside the declaration that JB in the case above had capacity to consent to sexual relations, as a result of his failure to understand that the other person had to give and maintain consent. The Court therefore referred the case back to the original judge to reconsider the issue and request further evidence on capacity, if required.
How can my vulnerable relative be protected if they lack capacity to have sex?
The Court of Protection has the power to make declarations as to whether or not a person has the required capacity to consent to sexual relations.
How can my vulnerable relative be protected if they have capacity to consent to sexual relations?
Even if your vulnerable relative is considered to have capacity to consent to sexual relations, protection may still be available. S 30 of Sexual Offences Act 2003 provides for the offence of engaging in sexual activity with a person with a mental disorder impeding choice.
When determining whether an alleged victim of the above offence had the capacity to make that choice, a jury can consider the identity, characteristics and behaviour of the defendant. This is in contrast to determining capacity to consent to sexual relations in the Court of Protection which is not assessed in a 'person specific way' even if the identity and risks of the potential partner are known.
It may also be possible to restrict contact with a specific person through a welfare deputyship order. Alternatively, protection may be available through a referral to the police or social services or injunction proceedings may be appropriate.
Nicola Gunn is a partner in the Family and Court of Protection departments. If you require assistance please contact Nicola on 0207 940 4057 or nicola.gunn@anthonygold.co.uk.
*Disclaimer: The information on the Anthony Gold website is for general information only and reflects the position at the date of publication. It does not constitute legal advice and should not be treated as such. It is provided without any representations or warranties, express or implied.*
Originally published July 7, 2020.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
