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Court of Protection considers criteria for determining vulnerable adult’s capacity to have sex

Mostyn J declares that 41 year old does not have capacity

Mr Justice Mostyn, sitting in the Court of Protection, has declared in D Borough Council v AB [2011] EWHC 101 COP that a 41 year old man who was in a sexual relationship with a male cohabitant did not have capacity to consent to sex. It ordered that he remain under local authority supervision.

The 41 year old male, known as A, has a learning disability in the 'moderate' range, and is described as seriously challenged in all aspects of his mental functionality. He has received constant supervision in a local authority placement.  A developed a sexual relationship with his male cohabitant. The local authority applied to the court seeking a declaration that A lacked capacity to consent to sexual relations and an order restricting contact between A and his cohabitant.

Mostyn J considered recent case law on the issue, in particular a trio of cases in which Munby J (as he then was) had set out that capacity to consent to sexual relations was directed to the nature of the activity rather than to the identity of the sexual partner. Mostyn J considered whether the position had changed since the coming into force of the Mental Capacity Act 2005 and the recent House of Lords judgment in R v Cooper [2009] UKHL 42, in which the reasoning of Munby J had been doubted by Baroness Hale.

Mostyn J concluded that the capacity to consent to sex was act-specific rather than partner-specific. He then considered the criteria to be applied in order to determine whether there was capacity to consent to sex. Since it was accepted that A failed on the necessary criteria, he made a declaration that he did not have capacity to consent to and engage in sexual relations, and ordered a continuance of his supervision.

The declaration was made on an interim basis in order that the local authority could provide A with sex education in the hope that he gained capacity. This would satisfy the provision of s.1(3) MCA 2005 which required that "all practicable steps" should be taken to help a person make a decision before concluding that they could not.

For a fuller summary of the case by Gillon Cameron, click here.