I had the privilege to speak to an audience of professional deputies from across the country at the recent Court of Protection Masterclass hosted by my colleagues from our Court of Protection Costs Team. I spoke about capacity to marry and enter into sexual relations, a topic which came to mind after these issues arose on two of our Deputyship cases recently.
During the talk, we looked at the case of Joan Blass and considered the legal test for capacity to marry that has been established through well documented cases. I will refer to the person who was subject to the proceedings in the following cases as “P”.
In Sheffield City Council v E & Anr  EWHC 2808 (Fam) it was held that the correct questions to be determined when considering capacity to marry are:
- Whether the person concerned has capacity to marry, not, does the person have capacity to marry a particular individual – the test is act specific not person specific.
- Does the person concerned understand the nature of the marriage contract?
- Does the person understand the duties and responsibilities that normally attach to marriage?
In London Borough of Southwark v KA  EWCOP 20, Parker, J, held that, “The test for capacity to marry is a simple one:
a) Marriage is status specific not person specific;
b) the wisdom of the marriage is irrelevant;
c) P must understand the broad nature of the marriage contract;
d) P must understand the duties and responsibilities that normally attach to marriage, including that there may be financial consequences and that spouses have a particular status and connection with regard to each other;
e) the essence of marriage is for two people to live together and to love one another; and
f) P must not lack capacity to enter into sexual relations.
This led us to consider what the legal test is for capacity to consent to sexual relations. The legislation (for civil matters) in found in the Mental Capacity Act 2005.
Section 27 of the Mental Capacity Act specifically excludes the making of best interest decisions regarding sexual relationships. If there is any doubt about a person’s capacity to consent to sexual relations, the matter must be determined by the Court of Protection.
The Court can determine:
- whether or not an individual has capacity to consent to sexual relations; and
- if a person lacks capacity, the courts can decide whether orders are required to safeguard that person.
Returning to the case of Sheffield City Council v E & Anr, Munby, J also considered capacity to have sexual relations. He concluded that capacity to consent to sexual relations is issue specific, not person specific.
The person must have sufficient knowledge and understanding of the issue relating to consent to sexual activity, rather than considering it solely in relation to the person with whom they are going to have sexual relations.
He concluded, “Capacity to consent to sexual relations is … a question directed to the nature of the activity rather than to the identity of the sexual partner.”
In D Borough Council v AB  EWHC 101, a case came before the Court of Protection to consider what the legal test was for determining whether a party had the mental capacity to consent to sexual relations.
It was held that capacity to consent to sexual relations requires an understanding and awareness of:
- The mechanics of the act;
- that there are health risks involved, particularly the transmission of STIs; and
- (if contemplating heterosexual sexual activity) that sexual relations between a man and a woman may result in the woman becoming pregnant.
In addition, for a person to have capacity to consent to sexual relations, they must understand that they have a choice and can refuse to consent (LB Tower Hamlets v TB & Other  EWCOP 53).
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