The test for capacity to consent to sexual relations must be the same in its essentials as the test in the criminal law; more importantly ‘a woman either has capacity, for example, to consent to ‘normal’ penetrative vaginal intercourse, or she does not . . Put shortly, capacity to consent to sexual relations is issue specific; it is not person (partner) specific.’
Munby J observed: ‘The fact is that all life involves risk, and the young, the elderly and the vulnerable, are exposed to additional risks and to risks they are less well equipped than others to cope with. But just as wise parents resist the temptation to keep their children metaphorically wrapped up in cotton wool, so too we must avoid the temptation always to put the physical health and safety of the elderly and the vulnerable before everything else. Often it will be appropriate to do so, but not always. Physical health and safety can sometimes be bought at too high a price in happiness and emotional welfare. The emphasis must be on sensible risk appraisal, not striving to avoid all risk, whatever the price, but instead seeking a proper balance and being willing to tolerate manageable or acceptable risks as the price appropriately to be paid in order to achieve some other good – in particular to achieve the vital good of the elderly or vulnerable person’s happiness. What good is it making someone safer if it merely makes them miserable?’
Judges:
Munby J
Citations:
[2007] EWHC 2003 (Fam), [2009] 1 FLR 443, [2008] Fam Law 213, (2008) 11 CCL Rep 119, [2008] 3 FCR 788
Links:
Statutes:
Jurisdiction:
England and Wales
Citing:
Cited – X City Council v MB and others; re MAB FD 13-Feb-2006
The adult patient was autistic. The doctors said that he lacked capacity, and the authority sought to prevent his return to Pakistan with, they thought, a view to being married. . .
Cited by:
See Also – Local Authority X v MM and Another (No. 2) FD 16-Nov-2007
. .
Applied – C, Regina v CACD 2008
The defendant appealed against his conviction for sexual assault on a female when she suffered a mental condition which prevented her indicating her refusal of the touching.
Held: The complainant’s irrational fear due to her mental disorder . .
Cited – Regina v C HL 30-Jul-2009
Consent to Sex Requires Capacity
The prosecution appealed against the reversal of the defendant’s conviction for a sexual assault of a woman said to be unable to communicate her refusal to sex because of her mental disorder.
Held: The appeal was allowed, and the conviction . .
Cited – G v E and Others CoP 26-Mar-2010
E Was born with and still suffered severe learning difficulties. The court was asked as to the extent of his capacity to make decisions, and as to where he should live, with a family member, the carer or with the local authority, which had removed . .
Cited – PC and Another v City of York Council CA 1-May-2013
It had been decided that PC, a 43 year old woman, had capacity to marry, but the LA now argued that she did not have the capacity to decide to live with her partner, a man who had old convictions for serious sexual assault.
Held: Decisions as . .
Lists of cited by and citing cases may be incomplete.
Health
Updated: 03 February 2022; Ref: scu.262185
