Engaging in sexual relations: silos and person-specific assessments in the Court of Protection

Bronte Cook Irwin Mitchell

The Court of Protection uses the Mental Capacity Act 2005 to determine a protected party’s (P’s) capacity to make decisions and where P lacks capacity to determine P’s best interests in that area of decision-making. One area subject to significant development recently is where the question is whether P has the capacity to engage in sexual relations. This is a complicated issue and one that deals with potentially difficult care arrangements in the circumstances that P is found to lack capacity.

The authority on this matter is A Local Authority v JB [2021] UKSC 52 and subsequent case law demonstrates that the court and those providing care to P continue to grapple with its application. This article explores the recent case law in this area including discussions relating to person-specific assessments in which P is assessed for their capacity to decide to engage in sexual relations with a specified individual. The concept of "silos" in decision-making and the need to consider interconnected decisions together is highlighted both in relation to sexual relations and across capacity assessments more broadly.