Capabilities, capacity, and consent: sexual intimacy in the Court of Protection

DOIhttp://doi.org/10.1111/jols.12278
Published date01 March 2021
Date01 March 2021
AuthorROSIE HARDING,JAIME LINDSEY
DOI: ./j ols.
ARTICLE
Capabilities, capacity, and consent: sexual
intimacy in the Court of Protection
JAIME LINDSEY1ROSIE HARDING2
School of Law, University of Essex,
Wivenhoe Park, Colchester, CO SQ,
England
Birmingham Law School, University of
Birmingham, Edgbaston, Birmingham,
B TT, England
Correspondingauthor
JaimeLindsey, School of Law,University
ofEssex, Wivenhoe Park, Colchester, CO
SQ,England
Email:j.t.lindsey@essex.ac.uk
Abstract
This article uses original data from research at the Court
of Protection to explore capacity to consent to sex in
practice. It argues that the approach under the Men-
tal Capacity Act  fails to place appropriate focus on
consent as central to understanding sexual capacity.The
capabilities approach to justice is then used to demon-
strate the limitations of the existing legal approach to
capacity to consent to sex, and to argue that the protec-
tive focus of the legal test would be better centred on
the social risks resulting from non-consensual sex and
exploitation. Finally, the article argues that, rather than
focusing on a medicalized approach to understanding
sexual intimacy,an analysis based on capabilities theory
provides conceptual tools to support arguments for addi-
tional resources to help disabled people to realize their
rights to sexual intimacy.
 INTRODUCTION
Sexuality and intimacy in the context of cognitive disability present a range of challenging social
and legal issues. Whereas in the past disabled people were routinely and actively prevented from
engaging in sexual activity,orsterilized without consent to avoid unwanted pregnancy,contem-
porary approaches to intimacy for disabled adults require a more nuanced approach. This article
This is an open access article under the terms of the Creative Commons Attribution-NonCommercialLicense, which permits use, distribu-
tion and reproduction in any medium, provided the original workis properly cited and is not used for commercial purposes.
©  The Authors. Journal of Law and Society published by John Wiley & Sons Ltd on behalf of CardiffUniversity (CU).
R. Sandland, ‘Sex and Capacity: The Management of Monsters?’ ()  Modern Law Rev. .
Re F (Mental Patient Sterilisation) []  AC .
 wileyonlinelibrary.com/journal/jols J.Law Soc. ;:–.

focuses on how the Court of Protection (CoP) deals with capacity to consent to sex for disabled
people, particularly those with cognitive disabilities, dementia, and mental health difficulties.
Recent years have seen increasing attention to these issues within academic literature and CoP
practice.Disabled people’s rights to develop loving and sexual relationships, and to engage in
consensual intimacy, are protected by the UN Convention on the Rights of Persons with Disabil-
ities (CRPD). However, as Arstein-Kerslake and Flynn state, ‘[t]he right to sexual agency has not
perfectly found its place in human rights law’.
English law allows for adults who are assessed to lack the mental capacity to consent to sex to
be prevented from engaging in sexual relations. The Mental Capacity Act  (MCA) applies to
those whose capacity is limited as a result of ‘an impairment of,or a disturbance in the functioning
of, the mind or brain’.TheMCA uses a functional test, which requires the person to understand,
retain, use, and weigh information relevant to the decision, including the reasonably foreseeable
consequences, and to communicate their decision.Through analysis of how sexuality and inti-
macy are dealt with in CoP practice, we argue that the dominant approachto capacity to consent to
sex fails to capture the essence of sexual activity as a social practice, and more specifically the cen-
tral importance of understanding consent. Instead, we show that the CoP medicalizes sex, despite
consent having been articulated to form part of the relevant information for assessing capacity
to consent to sex since at least .We demonstrate, through original observational data and
case file analysis, that in practice, pregnancy and sexually transmitted infections (STIs) remain at
the centre of a biologically focused, medicalized approach to capacity. Medicalization is the pro-
cess by which ‘natural’ life experiences or events are defined as a medical issue.We argue that
the medicalized approach allows the CoP to sidestep the social dimensions of sex, particularly a
person’s understanding that sex is a choice, and one to which either party can sayno.
We build upon the conceptual framework provided by the capabilities approach to justiceto
explore how the CoP engages with sexual intimacy in practice. The capabilities approach focuses
on improving human welfare and development and can be used to identify if individuals in soci-
ety are being treated justly and, as a result, how resources should be allocated. The function of the
mental capacity approach is to protect individuals who are unable to make decisions for them-
selves. The function of the capabilities approach is to provide individuals with an entitlement to
support to enable them to develop the capabilities needed for human flourishing. This distinc-
tion will be explored to show what difference a capabilities approach can add to understanding
See, for example, J. Herring, ‘Mental Disability and Capacity to Consent to Sex: A Local Authority v. H[] EWHC 
(COP)’ ()  J.of Social Welfare and Family Law ; B. Clough, ‘Vulnerability and Capacity to Consent to Sex: Asking
the Right Questions?’ ()  Child and Family Law Q. ; J.Herring and J. Wall, ‘Capacity to Consent to Sex’ ()
 Medical Law Rev. ; L. Series, ‘Sex, Capacity and Forensic Cotton Wool: IM v. LM [] EWCA Civ ’ () J.
of Social Welfare and Family Law ;A. Arstein-Kerslake and E. Flynn, ‘Legislating Consent: Creating an Empowering
Definition of Consent to Sex that Is Inclusive of People with Cognitive Disabilities’ ()  Social & Legal Studies .
Arstein-Kerslake and Flynn, id., p. .
MCA, s. ().
MCA, s. .
See A Local Authority v. H[] EWHC ; The London Borough of TowerHamlets v. TB and SA [] EWCOP .
P.Conrad, The Medicalization of Society: On the Transformation of Human Conditions into Treatable Disorders ().
A. Sen, Commoditiesand Capabilities ();A. Sen, Inequality Reexamined (); A. Sen, Development as Freedom ();
A. Sen, The Idea of Justice (); M. C. Nussbaum, Frontiers of Justice: Disability, Nationality,Species Membership ();
M. C. Nussbaum, Creating Capabilities: The Human Development Approach () ; M. C. Nussbaum, ‘Women and
Equality: The Capabilities Approach’ ()  International Labor Rev. ; M. C. Nussbaum, Women and Human Devel-
opment: The Capabilities Approach ().

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