Capacity to consent to sexual relations and the Mental Capacity Act 2005

DOIhttps://doi.org/10.1108/AMHID-12-2016-0046
Pages40-46
Date06 March 2017
Published date06 March 2017
AuthorVictoria Butler-Cole
Subject MatterHealth & social care,Learning & intellectual disabilities
Capacity to consent to sexual relations
Victoria Butler-Cole
Abstract
Purpose The purpose of this paper is to outline the current state of the Court of Protection case law on
capacity to consent to sexual relations and identifies a number of difficulties with the present position.
Design/methodology/approach This paper reviews and summarises the current case law.
Findings This paper identifies problems arising with the courts approach to assessing capacity to consent
to sexual relations, in particular the problems caused by treating decisions about sexual relations as generic,
but decisions about contact with other people as specific.
Originality/value This paper is a comprehensive summary of the current state of the application of the
Mental Capacity Act 2005 in this sensitive area.
Keywords Law, Capacity, Court of Protection, Incapacity, Mental Capacity Act 2005, Sexual relations
Paper type General review
Introduction
The Mental Capacity Act 2005 (MCA 2005) which applies in England and Wales contains a
presumption that people aged 16 and over have capacity to make their own decisions (s.1(2)
MCA 2005). It also provides a statutory test for incapacity which has two related components:
the existence of a mental impairment or disorder which causes an inability to do one of five
things understand, retain, use or weigh information relevant to the decision, or communicate a
decision (ss.2 and 3 MCA 2005)[1]. The statutory test reflects the previous common law, and
does not differentiate between types of decision.
One area of decision making to which the MCA has been applied, as was the common law
before it, concerns consent to sexual relations. This is a particularly sensitive matter and one
which the courts are often hesitant to address, since the consequences of deciding that a person
lacks capacity to give consent to sexual relations are significant. There is no power to consent to
sexual relations on behalf of an incapacitated person (s.27(1)(b) MCA 2005). In other spheres of
decision making, it is possible to make best interestsdecisions on behalf of an incapacitated
person. But if capacity to consent is lacking, then any sexual activity with that person will be a
criminal offence. Accordingly, care plans developed by statutory authorities for people who lack
capacity in this area are likely to be very restrictive, involving one-to-one support at all times, to
eliminate the possibility of sexual assault. Further, there capacity to consent to sexual relations is
lacking, an inability to consent to marriage (and probably to co-habitation) will follow, and it may
also be the case that the individual is judged to lack capacity to make decisions about
relationships generally.
The Court of Appeal has underlined the significance of a finding that someone lacks capacity to
consent to sexual relations (IM v. LM, 2014, EWCA Civ 37 at paragraph 1):
When is it appropriate for society to intervene paternalistically in a decision or decisions that individuals
make as to their sexual relations? At different levels, the question can be approached medically,
sociologically and philosophically: the answers will not necessarily be the same. Seeking to identify the
balance that our society, expressed through Parliament, has mandated, the Mental Capacity
Received 21 December 2016
Revised 3 February 2017
Accepted 6 April 2017
Victoria Butler-Cole is a
Barrister at 39 Essex
Chambers, London, UK.
PAGE40
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VOL. 11 NO. 2 2017, pp.40-46, © Emerald Publishing Limited, ISSN 2044-1282 DOI 10.1108/AMHID-12-2016-0046

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