Consent to sexual relations by mentally incapacitated people

Victoria Butler-Cole (pictured) on why a local authority must allow a couple to have unsupervised contact despite their mental health issues


What is the case about?

The recent case of local authority X v MM and KM explains what the legal test is for assessing mental capacity to consent to sexual relations.

Who are MM and KM?

MM is an adult with paranoid schizophrenia and a moderate learning disability. KM is her partner of 15 years. KM has in the past been diagnosed with a psychopathic personality disorder and alcohol misuse, and has been violent towards MM.

Why was the case taken to court?

The local authority wanted to obtain a best interests declaration that MM lacked capacity to decide where she should live and with whom she should have contact. The local authority did not want MM to have any unsupervised contact with KM.

What did the court say about capacity to consent to sexual relations?

Whether someone has capacity to consent to sexual relations is a simple question: either they have capacity or they don’t. You cannot say that someone has capacity to consent to sexual relations with person A but not with person B. The important question is whether the individual understands the nature of sexual intercourse and its foreseeable consequences, not who the person’s partner is. This is not a difficult test to meet.

In MM’s case, she did have capacity to consent to sexual relations, but she did not have capacity to decide whether she had contact with KM. This was because decisions about contact were more complicated – there were more implications and risks for MM to understand. However, the two issues were related. When the court was deciding what arrangements were in MM’s best interests on contact, it would have to consider the fact that MM had capacity to consent to sexual relations with KM and should be able to exercise this choice.

How did MM’s human rights affect the court’s decision?

The judge said it was important to ensure that MM’s human rights were protected, especially her right to respect for her private and family life. The court can intervene even in consensual sexual acts in private, but it should only do this where there is a need to protect a vulnerable adult from abuse.

Local authorities should not seek to avoid all risk, but to balance risks. Otherwise, there might be a risk of “social engineering”, or a risk that people would be safer but more miserable. The wishes of the person concerned are extremely important, even if that person lacks capacity.

What was the outcome for MM?

The judge decided that MM should live in a residential home, not with KM. However, the local authority would have to ensure that KM and MM could have unsupervised contact and could continue their longstanding sexual relationship.

What does it mean for practitioners working with vulnerable adults?

Practitioners should be aware that the test for capacity to consent to sexual relations is very easy to meet, and that even people who cannot make decisions about residence and contact may still be able to consent to sexual relations. If a local authority is providing residential accommodation or restricting contact arrangements in the best interests of an individual, it will be important to check whether the individual has capacity for the purposes of consenting to sexual ­relations, and if the answer is yes, to make arrangements to ensure that the individual is not prevented from continuing a private relationship.

Victoria Butler-Cole is a barrister at London-based chambers 39 Essex Street