Capabilities, capacity and consent: sexual intimacy in the court of protection

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  • 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.

Bibliographic note

Not yet published as of 12/01/2021.


Original languageEnglish
JournalJournal of Law and Society
Publication statusAccepted/In press - 15 Jul 2020