Supreme Court judges uphold ruling on mental capacity for sexual consent

Judges asked to decide whether someone has the mental capacity to engage in sex should assess whether he or she can understand that the other person involved must be able to consent, Supreme Court justices have ruled.

Five justices based in London delivered a ruling on Wednesday, following a Supreme Court hearing.

One Supreme Court judge, Lord Stephens, said the case raised “issues of profound significance” for people whose mental health difficulties potentially render them unable to decide about sex.

The case centred on a 38-year-old man with mental health difficulties who lives in supported accommodation.

Council social services bosses with responsibility for the man’s welfare had wanted a ruling relating to his capacity to consent to sexual relations.

A judge had initially overseen hearings in the Court of Protection, where issues relating to people who might lack the mental capacity to make decisions are considered.

Lawyers representing social services bosses had argued that “a component” of the man’s ability to consent to sex was an understanding that the other person must be able to, and did, consent.

They said if that component was “absent”, the man might commit sexual offences.

Mrs Justice Roberts had concluded that “the relevant information”, for the purposes of the decision she had to make, did not include the fact that “the other person was able to, and did in fact, consent”.

She made a declaration that the man had the “capacity to consent to sexual relations”.

Council social services bosses had successfully challenged Mrs Justice Roberts’ ruling in the Court of Appeal.

Court of Appeal judges concluded that “in deciding whether a person had the capacity to engage in sexual relations”, a judge should “have regard to whether that person can understand that the other person involved must be able to consent and gives and maintains consent”.

Lawyers representing the man had then asked the Supreme Court to consider the case.

But Supreme Court justices have unanimously upheld the Court of Appeal ruling.

Judges have ruled that the man at the centre of the case, who has been referred to as JB in written rulings, cannot be identified in media reports.

Copyright (c) PA Media Ltd. 2021, All Rights Reserved. Picture (c) Fiona Hanson / PA.