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Capacity to engage in sexual relations

A bedroom with a double bed.

Capacity to engage in sexual relations is an area that is not often discussed in the realm of mental capacity. In this blog we highlight the key case law that guides the assessment of capacity to engage in sexual relations alongside two separate but interrelated forms of capacity: Contact Capacity and Contraception Capacity.

Rethinking the terminology

In recent years there has been a shift in the way that the law views sexual relations and capacity. In Local Authority v JB (2020) EWCA 735 the judgement highlights the need to shift from capacity to consent to sexual relations to capacity to engage in sexual relations. This is an important distinction and reflects the fact that sexual consent is a two-way process. It’s not just about one’s own consent, but also the consent of the other person.

Here, the judges explain their rationale:

  1. The analysis of capacity with regard to sexual relations in the case law has hitherto been framed almost exclusively in terms of the capacity to consent to sexual relations. But as this case illustrates, giving consent to sexual relations is only part of the decision-making process. The fundamental decision is whether to engage in sexual relations. The focus on the capacity to consent derives, in part, from the judgments delivered by Munby J prior to the implementation of the MCA, which unsurprisingly influenced the analysis in subsequent cases after the Act came into force. In addition, as pointed out above, the only reference to sexual relations in the MCA is in s.27 where the list of ‘excluded decisions’ which cannot be made on behalf of a person lacking capacity includes ‘consenting to have sexual relations’. But the list in s.27 does not purport to be a comprehensive list of the decisions in respect of which issues as to capacity will arise.
Local Authority v JB (2020) EWCA 735

…

  1. I recognise that, by recasting the decision as the decision to engage in sexual relations, and by including an understanding of the consensuality of sexual relations as part of the information relevant to the decision, we are moving on from the previous case law. But that is because the issues arising in this case and the arguments presented to us have not been considered by this Court before. In my judgment, however, it is not inconsistent with the earlier authorities of this Court. As recognised by this Court in B v A Local Authority, ‘what comprises relevant information for determining an individual’s capacity to consent to sexual relations has developed and become more comprehensive over time.’ That development has continued in this case. The Court in IM v LM stressed that ‘the notional process of using and weighing information attributed to the protected person should not involve a refined analysis of the sort which does not typically inform the decision to consent to sexual relations made by a person of full capacity’. But as already stated, the information which a capacitous individual must take into account in deciding whether to engage in sexual relations includes whether or not the other person is consenting. My decision in this case is therefore not inconsistent with earlier decisions of this Court. As for the decisions at first instance, I respectfully disagree with the contrary observations of Parker J in London Borough of Southwark v KA and Mostyn J in D Borough Council v B.
Local Authority v JB (2020) EWCA 735

Salient information required

Building on the above, A Local Authority v JB (2021) UKSC 52 summarises the salient information required for making a decision to engage in sexual relations. This information is as follows:

  1. The sexual nature and character of the act of sexual intercourse, including the mechanics of the act.
  2. The fact that the other person must be able to consent to the sexual activity and must in fact consent before and throughout the sexual activity.
  3. The fact that P can say yes or no to having sexual relations and is able to decide whether to give or withhold consent.
  4. That a reasonably foreseeable consequence of sexual intercourse between a man and woman is that the woman will become pregnant.
  5. That there are health risks involved, particularly the acquisition of sexually transmitted and transmissible infections, and that the risk of sexually transmitted infection can be reduced by taking precautions such as the use of a condom.

Further reading

There is a growing range of case law in this area, with many different resources available. This includes, but is not limited to:

Training, assessments and support

For support with Mental Capacity, including the issues discussed in this blog, please contact us for a quote and case discussion. We can provide training for your team, and can also conduct mental capacity assessments on your behalf.

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