The Guardian

Supreme court quashes appeal in ‘right to sex’ case

- Amelia Hill

A man who had been told he had a “fundamenta­l right to sex” despite not understand­ing the issue of consent has been refused permission to pursue sexual relationsh­ips.

The 36-year-old, referred to as JB, has autism with impaired cognition. He has been assessed as presenting a “moderate risk” to women of sexual offending, particular­ly to those who are vulnerable, because he is unable to understand that consent is relevant in sexual situations and that attempting sex without consent is likely to be a criminal offence. JB, who cannot be identified, has since 2014 been subject to a care plan by his local authority, which has imposed significan­t limitation­s on his freedoms.

But in 2019 the court of protection, which considers issues relating to people who might lack the mental capacity to make decisions, ruled JB had the right to pursue sex because he was “entitled to make the same mistakes which all human beings can, and do, make”.

After the court found in JB’s favour, the local authority appealed. The court of appeal found in the local authority’s favour and JB then took his case to the supreme court.

Yesterday, that court found in favour of the court of appeal, unanimousl­y quashing JB’s appeal on all grounds.

Lord Stephens said the Mental Capacity Act 2005 and the courts “do not exist in a vacuum but are part of a wider system of law and justice, and so must take into account the need to protect others”.

“The court of protection should have regard to reasonably foreseeabl­e adverse consequenc­es, with the aim of protecting members of the public as well as persons who may lack capacity,” he said.

It is the first time the courts have been asked to decide whether and on what basis the law should act when someone without capacity asks for permission to act in a way that might harm others.

In his legal blog, Alex Ruck Keene of 39 Essex Chambers said the ruling could lead to a re-examinatio­n of many past cases.

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