Capabilities, capacity and consent: sexual intimacy in the court of protection
Research output: Contribution to journal › Article › peer-review
Colleges, School and Institutes
- University of Essex
This paper considers the legal approach to capacity to consent to sex in the English Court of Protection and uses the capabilities theory of justice to argue for the provision of support to those adults who might not yet have a full understanding of sexual intimacy. The paper uses original qualitative data from observational research at the Court of Protection to explore capacity to consent to sex in practice. It argues that the approach under the Mental Capacity Act 2005, as it has developed in practice in the Court of Protection, fails to place appropriate focus on consent as central to understanding capacity to consent to sexual relations and developing a capability for intimacy. The capabilities approach is then used to demonstrate the limitations of this approach to capacity to consent to sex, and to argue that the protective focus of the legal test would be better centred on the social risks resulting from non-consensual sex and exploitation. Finally, the paper argues that, rather than focusing on a medicalised approach to understanding sexual relations, a capabilities analysis provides conceptual tools to support arguments for additional resources to help disabled people realise their rights to sexual intimacy.
Not yet published as of 12/01/2021.
|Journal||Journal of Law and Society|
|Publication status||Accepted/In press - 15 Jul 2020|