On appeal from:  EWCA Civ 735
The Respondent commenced proceedings in the Court of Protection seeking declarations under the Mental Capacity Act 2005 as to the Appellant’s capacity to consent to sexual relations. A question arose as to whether the judge should have regard to whether they had capacity to understand that the other person involved must give consent, and did in fact give and maintain consent throughout the act. The judge found that this was not relevant information for the purposes of determining if an individual had capacity to consent to sexual relations under the Act.
The Respondent appealed to the Court of Appeal. The Court of Appeal recast the relevant matter as whether the Appellant had the capacity “to engage in” rather than “consent to”, sexual relations. The Court of Appeal found 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 give and maintain consent. The Respondent’s appeal was therefore allowed. The Appellant, by his Litigation Friend, the Official Solicitor, appealed to the Supreme Court on several grounds.
HELD – Appeal dismissed.
The Appellant argued that it was wrong to recast the relevant matter as whether he had capacity to “engage in” sexual relations because section 27(1)(b) of the Act, which sets out those decisions which cannot be made on behalf of a person, refers to “consenting to have sexual relations”. The Appellant argued that this section should be read as controlling the scope of section 2(1) of the Act.
The Court rejected this interpretation of the statutory scheme and found that the wording of section 2(1) of the Act is broad and flexible.
The Appellant argued that it was not relevant to look at whether a person understood that the other person must be able to consent and maintain consent throughout the act. The Appellant argued that this interpretation of the Act inappropriately extended its purpose to protecting the general public, and moreover created an impermissibly “person-specific” test for capacity.
The Court rejected these submissions. First, the Court found that it was correct that the Court of Protection should have regard to the aim of protecting members of the public, as well as the person who may lack capacity. Second, the Court found that the test in section 2(1) was decision-specific, not person-specific.
The Appellant argued that to have regard to whether a person had capacity to understand that the other person must be able to consent and must in fact consent before and throughout the sexual relations creates an impermissible difference between the civil and criminal law.
The Court found that no impermissible difference arose, and that there were strong policy justifications for any higher standard in the civil law test for consent.
The Court refused permission to raise a ground relating to compatibility with Article 8 ECHR, but nevertheless found the operation of the Act to be compatible.
The Appellant argued that the Court of Appeal’s test for capacity to engage in sexual relations was inconsistent with article 12(2) of the United Nations Convention on the Rights of Persons with Disabilities, which provides for recognition that persons with disabilities enjoy legal capacity on an equal basis with others in all aspects of life.
The Court rejected this argument as there is no separate standard for persons with disabilities.
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