Avoiding a dangerous precedent for the application of the Mental Capacity Act
A recent letter from Glynis Murphy, published in Guardian, started a flurry of discussion in the NDTi research team office. It's written in response to the Guardian's report of Justice Robert's ruling in the case of JB, a young man with autism and cognitive impairment who wants the opportunity to develop a sexual relationship. Whilst we agree with some points raised in this letter, as a team, we strongly argue that for Justice Roberts to have ruled otherwise would have set a dangerous precedent for the application of the Mental Capacity Act (MCA) 2005 and the Human Rights Act 1998.
JB is a man with autism and cognitive impairment who wants to find a girlfriend with whom he can develop a sexual relationship. The local authority supporting JB, brought a case to the Court of Protection to principally rule on whether he had the capacity to consent to sexual relations; as well as his capacity to make decisions about the support he will need to have such a relationship. The court was not asked to consider the capacity of JBs potential sexual partners. However, the local authority who supports him asked the court to expand their capacity test to include the ability to understand the need for consent from the other party.
Justice Roberts ruled that to incorporate this requirement would mean JB had to understand criminal law in order to have capacity and would therefore impose upon him requirements not imposed upon most other individuals. This ruling does not support a ‘male entitlement to sex’ as Murphy argues, but instead responds to the case brought to the court as the law currently stands.
Justice Roberts was also careful to embed her ruling in wider recommendations that have not been reported in the original article. For example, she is clear that whilst JB may be held capacitous in relation to the decision to have sexual relations with others, this does not preclude a subsequent 'best interests' decision that he lacks capacity to decide whether this partner is safe or consents (a best interests meeting is scheduled for JB later this year). Furthermore, contrary to Murphy’s letter, importantly Roberts already states that education for JB will play a critical role in allowing him to achieve capacity around his sexual relationships.
We feel this ruling is to be applauded and we support Justice Robert’s clear response to the case brought to her. She acknowledges JB as a man who, at the time of the case, had committed no offence and merely wished for a relationship; something most of us yearn for, and a wish echoed by the many people with learning disabilities who were interviewed for our “Rights to a Relationship” research. Justice Roberts, does not impose an extra sanction upon JB because he has autism and a cognitive impairment, but simply acknowledges that in order for him to exercise his capacity he will need support and education.
Surely to have ruled otherwise would have placed an unnecessary burden upon JB and would have opened the legal floodgates to increasing the ‘information relevant to the decision’ (s.3(1) MCA 2005) in all ‘act specific’ capacity assessments; a decision which could have seen large numbers of adults with learning disabilities being discriminated against by a piece of legislation designed to protect their entitlement to exercise their human rights?
Dr Victoria Mason-Angelow is the Research and Evaluation Consultant at the National Development Team for Inclusion (NDTi)
NDTi is an organisation that promotes equal and inclusive lives for people in their communities, particularly where ageing or disability are issues
Dr Victoria Mason-Angelow's blog is a personal opinion and does not necessarily reflect the views of the NDTi.