TORONTO -- The U.K. Court of Protection, a superior court created under the 2005 Mental Health Act with jurisdiction over the welfare of people who lack mental capacity to make decisions for themselves, has ruled that a man who cannot understand consent must be allowed to pursue sexual relationships as it is a “fundamental” human right.
The man, a 36-year-old dubbed “JB” in the judge’s ruling, has complex diagnoses of autism combined with impaired cognition, and currently resides in a supported residential placement with a “comprehensive care plan which imposes significant limitations on his ability to function independently,” according to the ruling.
Justice Jennifer Roberts said in a ruling dated September 17 that requiring JB to demonstrate that he understands consent would limit him in a way that “a capacitous individual may not share.”
Roberts said, that while not having knowledge of consent could potentially expose JB “to the risk of criminal prosecution,” he was “entitled to make the same mistakes which all human beings can, and do, make in the course of a lifetime.”
Roberts ruled it would be “inappropriate” to not allow JB “a fundamental and basic human right to participate in sexual relations.”
Roberts acknowledged that the restrictions on JB were to stop him from “behaving in a sexually inappropriate manner towards women,” and that JB “lacks the insight or ability” to communicate in an appropriate manner towards women that he finds attractive.
“There is a concern that his behaviour, if unrestrained, may result in his exposure to the criminal justice system and risk to potentially vulnerable females,” the ruling said.
The lawyer arguing on behalf of the local authority in charge of JB’s welfare, Vikram Sachdeva, accused the court of “derogation of responsibility” if they permitted JB to be released from the restrictions imposed on him.
The local authority wanted the comprehensive care plan with its restrictions and legal precedent under the 2005 Mental Health Act to stay in place as protection for both JB and any potential sexual partners, but Roberts said in her ruling that JB “is anxious to have a sexual partner and believes that the current restrictions represent an unfair and unwarranted interference in his basic rights to a private and family life” citing Article 8 of the European Convention on Human Rights.
A past capacity assessment of JB by a clinical psychologist found that he “represented a moderate risk of sexual offending to women,” and in the report, listed the “most likely…form of sexual harassment” would be “repeated, unwanted sexually explicit messages to females” either by telephone, social media or dating sites.
The clinical psychologist also noted that JB had “limited social boundaries around women,” and he acknowledges that he is unable “to judge women’s reactions to him…and is unwilling to directly ask for clarification of these issues,” and that there is a risk of JB touching women in a sexual manner without consent.
The report warned that vulnerable women “who do not have the capacity to consent to sexual relations,” are at risk from JB “not recognizing or respecting this fact, resulting in the potential for rape to occur,” the assessment concluded.
It is understood that the local authority plans to appeal the judge’s ruling, according to local reports.