Supreme Court considers test for capacity to engage in sexual relations (A Local Authority v JB)

Table of contents

• The MCA 2005 and the concept of capacity
• Comment

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...