S1 of the Mental Capacity Act 2005 states that a person lacks mental capacity if ‘he is unable to make a specific decision for himself in relation to the matter because of an impairment of, or a disturbance in the functioning of, the mind or brain.’
The test for mental capacity is therefore what has been called ‘decision-specific’; the inability to make a decision ‘in relation to the matter’. A person may not be capable of deciding where they wish to live, and therefore lack the capacity to make that decision. However, that same person may have the capacity to decide upon other issues, such as whether to receive medical treatment, or what they would like to eat.
There has been much debate in case law, however, as to whether capacity to consent to sexual relations is person specific;
The issue was considered in the recent Court of Appeal case of IM v LM & Ors  EWCA Civ 37.
The case concerned a 37-year-old woman (P) with a history of drug and alcoholism. Following treatment in hospital for these issues, P suffered cardiac arrest, leading to brain injury. Restrictions were subsequently placed upon Ps contact with her partner. P had lived with her partner for several years before the incident.
Her partner made an application to the Court of Protection for a declaration that it was in Ps best interests for her to have contact with him.
The Court of Protection decided that P lacked the mental capacity to make decisions concerning residence, care and contact, however P did have the mental capacity to decide whether to engage in sexual relations.
However, Ps mother appealed the decision on the basis that there was a person-specific element to be considered when assessing capacity to consent to sexual relations, and the Court failed to consider this element before making their determination.
There was a significant differing of opinion between the judges in the Court of Appeal as to whether the identity of the sexual partner was an issue to be considered when applying the capacity test.
The Court considered the view of Baroness Hale as indicated in previous cases, quoting:
“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 of sex with this person at this time and in this place.”
Alternative views were also quoted:
“There is also a very considerable practical problem in allowing a partner-specific dimension into the test. Consider this case. Is the local authority supposed to vet every proposed sexual partner of Alan to gauge if Alan has the capacity to consent with him or her?”
On conclusion of the case, the Court agreed that for the assessment of capacity to have a person-specific element would be “totally unworkable”, stating that:
“the fact that a person either does or does not consent to sexual activity with a particular person at a fixed point in time, or does not have capacity to give such consent, does not mean that it is impossible, or legally impermissible, for a court assessing capacity to make a general evaluation which is not tied down to a particular partner, time and place.” And went on to state that: “On a pragmatic basis, if for no other reason, capacity to consent to future sexual relations can only be assessed on a general and non-specific basis.”
After much debate, the appeal was therefore dismissed. Applying the test generally, without taking a person specific element into account, P did have the mental capacity to consent to sexual relations.
By Sophie Maloney, Court of Protection disputes team
The Court of Protection is a specialist Court safeguarding the rights of those who lack mental capacity or are vulnerable in making decisions. If you require advice in respect of any issues which may require the Court of Protection to intervene, then our team is able to provide specialist legal advice, representation and guidance through this process.