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

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 court’s 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.