Mental health—Capacity—Sexual relations

Mental health—Capacity—Sexual relations

D Borough Council v AB [2011] EWHC 101 (COP), [2011] All ER (D) 71 (Feb)
Court of Protection, Mostyn J, 28 Jan 2011

The test for determining whether a person has capacity to engage in sexual relations is whether the person has sufficient rudimentary knowledge of what the act comprises and of its sexual character to enable him or her to decide whether to give or withhold consent.

Joseph O’Brien (instructed by the local authority solicitor) for the authority. Vikram Sachdeva for A.

The proceedings concerned A. He was aged 41 and was seriously challenged in all aspects of his mental function. Prior to the commencement of proceedings, he had shared a home with K, in accommodation provided by the local authority. He had a vigorous sex drive and at some point was reported to have  had a sexual relationship with K. Following reports of him behaving inappropriately towards children, the authority issued proceedings seeking a declaration that