The question of capacity to consent to sexual relations is both sensitive and difficult. It has potential wide ranging implications, not only for the individual lacking capacity and those responsible for their care, but also for those who have sexual relationships with them. Any express consent by someone lacking capacity may be void, leaving the sexual partner at risk of conviction for a serious offence under the Sexual Offences Act 2003. The right to engage in sexual relations is safeguarded by article 8 of the European Convention on Human Rights (ECHR) which protects the right to a private and family life. However, this right must be balanced with a need to protect vulnerable adults.
In my earlier blog ‘Does my relative have capacity to marry or enter into a civil partnership and what can I do to protect them? ‘ I explained the test applied when assessing mental capacity and that it is necessary to consider whether someone has capacity to make a specific decision at a particular time, on a case by case basis.
Is it relevant to consider whether my relative has capacity to have sex in general or capacity to have sex with a particular person?
The capacity to consent to sexual relations was previously thought to be assessed by reference to the nature of the sexual activity rather than to the identity of the sexual partner. However, in the case of Re Cooper  All ER (d) 33 (mar) Baroness Hale commented:
“It is difficult to think of an activity which is more person (and situation) specific than sexual relations. One does not consent to sex in general, one consents to this act for sex with this person at this time and in this place.”
The judges of the Court of Protection have, by contrast, repeatedly emphasised the practical difficulties that will arise if a person’s capacity to consent to sex has to be re-assessed with each new partner, and perhaps even on each occasion when sex is considered. If too high a test is imposed this would prevent many adults with cognitive impairments from enjoying sexual relationships. This would amount to a huge infringement of their right to respect for private and family life.
Court of Protection judges have also been anxious to ensure that those who lack capacity are not subject to an overly paternalistic approach, or required to show that they have approached the decision with greater consideration and analysis than other adults. Often there is little or no such rational analysis when other adults make decisions about sex.
The leading case on capacity to consent to sexual relations is IM v LM & Others  EWCA Civ 37 where the Court of Appeal attempted to clarify this are of law. The main question for the court was whether capacity to consent to sexual relations was ‘act-specific’ or ‘person-specific’; whether a person needs to have capacity to consent to sex in general, or capacity to consent to sex with a particular proposed partner.
The Court of Appeal concluded that there was no conflict between what Baroness Hale had said in Re Cooper above and the approach taken by the judges in the Court of Protection cases. He emphasised that Baroness Hale’s comments had been made in the context of a criminal prosecution act, which had already taken place, whereas the decisions made by the Court of Protection judges relate to acts that may occur in the future. The court accepted that it would ‘totally unworkable’ for social workers or the court to be asked to conduct a capacity assessment each time an adult whose capacity had been questioned wanted to have sex. The court agreed that the test for capacity to consent to sex should not be overly demanding and it endorsed the approach of the Court of Protection judges to protect the autonomy and right to respect for private life of adults with learning disabilities or other cognitive impairments. The court would be reluctant to make any declaration in the case of a person who can demonstrate:
- An understanding of basic information about sex;
- What it involves physically;
- The fact that there may be health risks;
- And the fact that some forms of sex between a man and a woman can lead to pregnancy.
How can my vulnerable relative be protected if they lack capacity to have sex?
The Court of Protection has the power to make declarations as to whether or not a person has the required capacity to consent to sexual relations.
How can my vulnerable relative be protected if they have capacity to consent to sexual relations?
Even if your vulnerable relative is considered to have capacity to consent to sexual relations, protection may still be available. S 30 of Sexual Offences Act 2003 provides for the offence of engaging in sexual activity with a person with a mental disorder impeding choice.
When determining whether an alleged victim of the above offence had the capacity to make that choice, a jury can consider the identity, characteristics and behaviour of the defendant. This is in contrast to determining capacity to consent to sexual relations in the Court of Protection which is not assessed in a ‘person specific way’ even if the identity and risks of the potential partner are known.
It may also be possible to restrict contact with a specific person through a welfare deputyship order.
If a vulnerable person and/or their child is at risk of harm or suffering harm the police should be called to see whether they will take any action to protect. If a crime has been committed, and they have grounds to arrest the perpetrator, the police may impose bail conditions, preventing the perpetrator from contacting the vulnerable person (and their child) and preventing the perpetrator from coming within in a specific radius of their property. If the police are unwilling to take any action, an application for a non-molestation order and/or an occupation order may be appropriate.