A Local Authority v JB (Rev1) [2021] UKSC 52 (24 November 2021)
Citation: A Local Authority v JB (Rev1) [2021] UKSC 52 (24 November 2021).
Subjects invoked: 99. 'Health services'.
Rule of thumb:Are psychiatrists allowed to put sectioned schizophrenic patients in sexual chastity devices? The Court in this case affirmed that one of these conditions to be set is that psychiatric patients’ sex lives can be controlled by their physician – physicians in the UK can now effectively make all their patients’ sexual choices for them and chastise them.
Background facts:
This case invoked the administrative law subject of ‘medical services’. It invoked the area of mental health where psychiatric patients have been admitted to hospital to be treated by a physician, and must follow certain conditions set by their physician under what is called a ‘compulsory treatment order’, and if they do not follow these conditions they will be arrested.
JB had epilepsy, medical and cognitive problems growing up, & went to a special needs school. JB was still nonetheless able to go to college (which he never completed) & was supposedly well-liked by his carers who met him daily as well as the people who lived with him. However, outside of this environment, as an adult, JB allegedly had an extensive history of sexual offences. JB has never faced the criminal justice system for any of these however, or indeed had a jury assess whether he was criminally insane or not, meaning that none of these sexual offence allegations or his alleged criminal insanity have been proved beyond reasonable doubt.
However, although JB was left alone by the Police, JB was not left alone by the UK authorities. Instead, it was deemed that JB should instead be sent to the lunatic asylum for assessment by doctors/medical personnel. It was deemed that this would be ‘better’ for JB than the criminal justice system. On the balance of probabilities, JB was diagnosed by physicians as being on the autism spectrum with severe Asperger’s syndrome. JB was further diagnosed by physicians as being unable to understand the concept that a woman could not consent to sexual relations, and this was held to be the reason for him carrying out these alleged sexual offences. After these diagnoses of JB, the physician came up with a solution for him. The solution for JB was that JB should be put on a community care order and have a treating physician treat his Asperger’s condition. The physician foresaw that both of these should essentially be done for the entirety of JB’s life. JB was in reality given a life sentence for these unproven allegations. JB in reality had a far, FAR more extreme sentence imposed on him for these unproven allegation by his physicians than anything the criminal justice system would have been able to impose on him if they had been proven there.
JB allegedly began saying to his treating physician that he needed a woman and would settle for any woman. At the chaperoned social events JB would go to with his carer he allegedly began targeting very vulnerable women with severe learning problems. JB was then alleged to have entered into communications with one of them, then supposedly agreed to meet them in a toilet and sexually assaulted them. The police investigated this and decided not to prosecute JB. JB also vehemently denied this. However, despite no police action being taken against JB for this, JB’s physician again decided to take action herself instead. JB’s physician decided to be the prosecutor, Judge and Jury herself. In alleged light of this behaviour by JB, JB’s physician sought a declaration from the Court on whether she could control all his sexual activity in his life. In other words, for allegedly carrying out these criminal offences that were never proven or pursued by Police, JB’s physician now wanted to put JB in a chastity device for life, and asked the Court whether it would be possible in theory for physicians to start doing this to patients.
This local authority argued that 2 legal principles were raised – mentally incapacity and the boundaries of compulsory community care orders for mental health patients, which the physicians wanted to expand beyond their current bounds. Firstly, in terms of mental incapacity, could a person be so bereft of societal understanding that they were actually incapable of knowing whether another woman was not consenting to sexual relations or not? Secondly, if a person was incapable of understanding sexual consent, would chastity controlling their sex-life be within the limits of compulsory community care orders? The local authority firstly argued that some people with severe mental impairment were literally incapable of knowing whether another person was rejecting sexual advances, or was incapable of giving sexual consent. The local authority argued that JB, despite supposedly not being stupid or incapable of working, was incapable of knowing and understanding this. The local authority secondly argued that community care orders should therefore be extended to allow the physician to completely control someone like JB’s sex-life and effectively chastise him.
JB’s representative blanket argued that a psychiatrist should never be able to control someone’s sex life and impose conditions of sexual chastity under a compulsory treatment order. JB’s representative argued that the notion of the Government essentially putting citizens in chastity was an extremely dangerous one, and one which violated the Article 8 Right to Privacy and Family Life. JB’s representatives argued that the Government essentially strapping on leathers & becoming a dominatrix against someone’s choice violated Article 8. JB argued that the bounds of compulsory treatment orders should not extend to this boundary.
Judgment:
The Court by and large upheld the arguments of the local authority. They stated that it was within the realms of the incapacity principle that a person who was severely impaired mentally could be said not to be able to consent to sexual relations. They affirmed that this was possible to be diagnosed for repeat sexual offenders. They stated that this now fell within the boundaries of the The Mental Act 2000 for physicians treating mental health patients. The Court therefore upheld that if a person was without the mental capacity to know when another person was not consenting to sexual relations, or was not capable of knowing that a person was not capable of consenting, their treating physician could make these decisions for them – mental health patients could indeed now be sexually chastised by their physician under a compulsory community care order. Treating mental health physicians are now in theory able to put some of their patients in chastity devices under UK law.
The Court also held that this did not violate patients’ Article 8 rights in theory. The Court held that this was a very significant problem that required a very significant condition in response, meaning that this was not inherently disproportionate. The Court therefore held that Government physicians putting someone in sexual chastity, indeed like a dominatrix, was possible in theory. The Court did stress that this case was only raising a hypothetical scenario. The full facts were not considered and no order or condition for JB was directly approved as such, which mean they did hold up the defence of JB to some degree. They said JB’s case would need to be fully considered before any potential chastity conditions could be imposed on him. The Court did stress that this type of condition would only be expected to be used in extreme and exceptional circumstances like the alleged ones presented to them, and would have to be considered on a case-by-case basis.
Ratio-decidendi:
Lord Stephens Ratio-Decidendi at 122 ‘122. The evaluation of JB’s capacity to make a decision for himself is in relation to “the matter” of his “engaging in” sexual relations. Information relevant to that decision includes the fact that the other person must have the ability to consent to the sexual activity and must in fact consent before and throughout the sexual activity… section 3(1)(c) MCA he should be able to use or to weigh it as part of the decision-making process. Applying the test in section 2(1) MCA… JB is unable to make a decision for himself in relation to that matter because of an autistic impairment of his mind… because this information was not fully considered or analysed during the hearings before the judge, it would not be appropriate to make a final declaration that JB does not have capacity to make a decision to engage in sexual relations. The right course is therefore to remit the matter to the judge for reconsideration in the light of this judgment’.
Warning: This is not professional legal advice. This is not professional legal education advice. Please obtain professional guidance before embarking on any legal course of action. This is just an interpretation of a Judgment by persons of legal insight & varying levels of legal specialism, experience & expertise. Please read the Judgment yourself and form your own interpretation of it with professional assistance.