DY, Re [2021] EWCOP 28

This matter involved an application by the local authority to deprive the Protected Party (P) of certain liberties. The liberty in question related to the consent of sexual relations when she was unsettled or distressed.

At a hearing relating to the same issue, it was agreed that Dr Smith would carry out a medical assessment. The assessment was carried out and, whilst the Official Solicitor (who was representing P) agreed with many of the findings of Dr Smith, they disputed the finding that P did not have capacity to consent to sexual relations when unsettled or distressed.

The Official Solicitor contended that Dr Smith set the bar too high in relation to P’s understanding of the distinction between consenting to sexual relations within and outside a relationship.

In making their decision, Justice Knowles considered Sections 1-4 of the Mental Capacity Act and the case of Local Authority -v- JB [2020] regarding the test for capacity as well as the case of LAX -v- mm [2007] which emphasised that the capacity test should specifically relate to the activity rather than a specific partner.

Upon consideration of the evidence, Justice Knowles concluded that there was no evidence that P had difficulty in understanding that the other party must consent and she could say no in the context of her current partner.

Justice Knowles confirmed he was happy that P understood and was able to weigh up all relevant information and had capacity to decide whether to engage in sexual relations on a non-specific basis.

The full judgment can be read here

If you have any questions regarding this summary case law please contact Karl Robson here

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