A Local Authority v JB (by his litigation friend, the Official Solicitor) [2020] EWCA Civ 735, 2020 WL 03086047

The case: The issue arising on this appeal is whether a person, in order to have capacity to decide to have sexual relations with another person, needs to understand that the other person must at all times be consenting to sexual relations. The issue arises in proceedings in the Court of Protection concerning a 36-year-old man with a complex diagnosis of autistic spectrum disorder combined with impaired cognition. The question before the judge at first instance, and in written submissions presented to this court before the hearing, was couched in different terms, namely whether a person, in order have capacity to consent to such relations, must understand that the other person must consent. Those are the terms in which the issue of capacity and sexual relations have been discussed in all reported cases up to now. None of those cases, however, directly concerned the specific issue arising in this case. The issue is of great importance to people with learning disabilities or acquired disorders of the brain or mind. It requires the court to balance three fundamental principles of public interest.

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