Article summary

Local Government analysis: The Supreme Court (SC) has for the first time looked in detail at what it means to have or lack capacity to make a decision, and has done so in a very high-stakes context: that of sexual relations. The factual background to the case is set out in some detail in the judgment of the SC, although, as Lord Stephens emphasised (para [9]), there have been no final factual findings, even if much of the evidence is not disputed. For present purposes, of most importance is the fact that the expert evidence relating to the person at the heart of the case, JB, was to the effect that he could not understand or weigh the concept of consent by another sexual partner, and could not do so in consequence of an impairment of his mind (autism). As Lord Stephens identified (at para [36]), if the relevant information for purposes of the capacity test included the need for such consent, then JB would not satisfy the test. No one could therefore make a decision on his behalf to engage in sexual relations by virtue of the ban in section 27(1)(b) of the Mental Capacity Act 2005 (MCA 2005). Alexander Ruck Keene, barrister, of 39 Essex Chambers comments on the judgement. Sign in or take a trial to read the full analysis.