A Local Authority v JB [2021] UKSC 52
Capacity and sexual relations The joint expert described JB's number one priority as "to get" a woman as a sexual partner, with the sole goal being physical and sexual contact with a woman and any woman, and that JB lacked understanding of concepts of consent by the other person and so posed a risk of sexual offending to women. The Supreme Court (dismissing the Official Solicitor's appeal) decided that in assessing JB's capacity "the matter" was his "engaging in" (rather than consenting to) sexual relations, and that information relevant to that decision includes the fact that the other person must have the ability to consent to the sexual activity and must in fact consent before and throughout the sexual activity. The Supreme Court reiterated that capacity assessments should first ask whether the person is "unable to make a decision for himself in relation to the matter" (which involves formulating "the matter" and consequently identifying "the information relevant to the decision" which includes information about the reasonably foreseeable consequences to the patient and others) and secondly ask whether that inability is "because of" an impairment of, or a disturbance in the functioning of, the mind or brain. In relation to sexual relations "the matter" will ordinarily be formulated in a non-specific way: in this case JB's wishes were non-specific, but in another case "the matter" might be person-specific (e.g. sex between a long-standing couple where one person had a relevant impairment, or between two mutually-attracted people both with relevant impairments). The question of JB's capacity was remitted to the original judge for reconsideration.
Essex
This case has been summarised on page 3 of 39 Essex Chambers, 'Mental Capacity Report' (issue 118, December 2021).
Essex search
This case's neutral citation number appears in the following newsletters:- 39 Essex Chambers, 'Mental Capacity Report' (issue 125, September 2022)
- 39 Essex Chambers, 'Mental Capacity Report' (issue 127, November 2022)
- 39 Essex Chambers, 'Mental Capacity Report' (issue 130, March 2023)
- 39 Essex Chambers, 'Mental Capacity Report' (issue 131, May 2023)
- 39 Essex Chambers, 'Mental Capacity Report' (issue 132, June 2023)
- 39 Essex Chambers, 'Mental Capacity Report' (issue 135B, November 2023)
External links
- Supreme Court: Case page - including videos of the hearing and an "easy read" summary
Full judgment: BAILII
Subject(s):
- Sex and marriage cases🔍
Date: 24/11/21🔍
Court: Supreme Court🔍
Judicial history:
Judge(s):
Parties:
Citation number(s):
What links here:- Capacity to consent to sexual relations
- A Local Authority v JB [2020] EWCA Civ 735
- A Local Authority v JB [2019] EWCOP 39
- 39 Essex Chambers, 'Mental Capacity Report' (issue 118, December 2021)
Published: 25/11/21 22:49
Cached: 2024-11-21 16:24:20
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