The Supreme Court has agreed to hear a case on whether, to have capacity to decide to have sexual relations with another person, a person needs to understand 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.
In A Local Authority (Respondent) v JB (by his Litigation Friend, the Official Solicitor) (AP) (Appellant), UKSC 2020/0133 the appellant, JB, is a 37 year-old single man with a complex diagnosis of autistic spectrum disorder combined with impaired cognition.
JB has expressed a strong desire to have a girlfriend and engage in sexual relations. However, his previous behaviour towards women has led the respondent local authority to conclude that he cannot safely have unsupervised contact with them.
The local authority filed an application in the Court of Protection seeking declarations as to JB’s capacity in various areas, including his capacity to consent to sexual relations.
The expert evidence was that JB understands that mechanics of sexual acts and the risks of pregnancy and sexually transmitted disease, but his “understanding of consent is lacking”.
In the Court of Protection, the judge held that it was not necessary for a person to understand the need for their sexual partner’s consent and declared that JB has capacity to consent to sexual relations.
In A Local Authority v JB (Rev 2)  EWCA Civ 735 the Court of Appeal disagreed. It held that, to have capacity to engage in sexual relations, a person needs to understand that their sexual partner must have the capacity to consent to the sexual activity and must in fact consent before and during the sexual activity.
JB appealed to the Supreme Court. A Supreme Court panel comprising Lord Hodge, Lady Arden and Lord Hamblen granted permission on 13 April 2021.