Re JB 
In Re JB, Baker LJ appears to have hit the reset button on the test of capacity to have sexual relations. While previous decisions, he argues, are still relevant and compatible, Baker LJ has created the foundation for a new consolidated test by reframing how capacity is established in this area of law.
In the first instance of Re JB, judge Roberts J held that the 36-year-old man with autism in question, JB, had capacity to have sexual relations without the need to understand that the other person had to consent. The local authority appealed.
Baker LJ agreed with the local authority and held that a person needed to understand that the other person had to consent to engage in sexual relations. Baker LJ further stated that, based on the principles of autonomy and safeguarding vulnerable people in the context of both the civil and criminal law, the long-standing analysis of capacity, which had been almost exclusively framed in terms of capacity to consent to sexual relations, was wrong and needed to be reframed.
The previous test
The question was whether a person had capacity to consent. As such, the relevant information that someone had to understand, retain, and weigh in order to demonstrate capacity to consent was:
- The nature and mechanics of the act;
- The possibility of pregnancy (in heterosexual sex); and
- That there are health risks involved, particularly sexually transmitted diseases, and that the risks can be reduced by taking precautions, such as the use of condoms.
The new test
Baker LJ’s judgment has reframed the test of capacity from (a) being able to consent, to (b) being able to decide to engage in sexual activity.
The change arises out of the argument that the fundamental decision to look at is whether a person is able to decide whether to engage in sexual relations, and so giving consent is part of the process of making this decision.
By shifting the focus to engaging in sexual relations, a person must now also be able to understand, retain, and weigh that his or her partner (or potential partner) is:
- able to consent; and
- in fact, giving and maintaining consent throughout the act.
The new test therefore involves the same relevant information as before, with two additional considerations:
- The nature and mechanics of the act;
- The possibility of pregnancy (in heterosexual sex);
- That there are health risks involved, particularly sexually transmitted diseases, and that the risks can be reduced by taking precautions, such as the use of condoms;
- That they can say yes or no to sex;
- That their partner is able to consent; and
- That their partner is, in fact, giving and maintaining consent throughout the act.
Baker LJ qualified these additional requirements (underlined above) by stating that, although some capacitous people might struggle to articulate the precise terms of the criminal law, a capacitous person would not need to carry out a nuanced analysis to decide whether they could (or should) engage in sexual relations. It was therefore not necessary for 'P' (the person who is the subject of the Court of Protection proceedings) to have an understanding of the other person’s consent in the full terms of the criminal law, but rather that “they should only have sex with someone who is able to consent and gives and maintains consent throughout”.
Effects of the new test
The first, and most obvious, effect of this decision is that the threshold for capacity in relation to sexual relations has become higher.
By adding additional information regarding the partner’s consent, 'P' is now subjected to a stricter test and is may be likely to be found to have capacity. Health and social care professionals will be required to take note of this decision and ensure they test the new information fairly and in line with s3 MCA 2005.
For example, it is yet to be clarified what this new information will mean for long-term couples or marriages in which one partner no longer understands that another person has to be consenting, and yet there is no doubt that both partners would be consenting if they were to engage in sexual relations.
Another interesting potential impact of this decision is that s.27 MCA 2005 prohibits anyone from making best interests decisions on behalf of another person if they lack capacity to consent to sexual relations. By framing the question differently, as Baker LJ has done, does this mean that a court could make a best interests decision on 'P’s behalf to engage in sexual relations?
It may take some time for this issue to be clarified by the court, but it will be interesting to see whether we will begin to see best interests decisions regarding sexual relations in the future.
Finally, it is worth mentioning that an indirect and humanising effect of Baker LJ’s decision is that 'P', who has traditionally been viewed as a passive recipient of sexual advances in terms of consent, has been brought to the forefront of the decision-making process as a sexually active person in their community.
Oscar Sotiriou Martinez
Posted on Tuesday, 23rd June 2020