DY, Re

DY, Re

DY has capacity to decide to engage in sexual relations on a general non-specific basis because she understands and can weigh all relevant information required by law. The local authority's concerns about her capacity when unsettled or distressed are speculative and unsupported by evidence. Any risks can be managed through care and contact arrangements under the MCA 2005, not by a prospective declaration of incapacity.

Parties
Applicant: A Local Authority; Respondent: A Mother; Respondent: A Father; Respondent: DY (by her litigation friend, the Official Solicitor)
Jurisdiction
England and Wales
Judgment Date
10 May 2021
Procedural Posture
Court of Protection Application / Final Judgment
Outcome
Application dismissed; declaration of capacity made
Legal Topics
Capacity to Consent to Sexual Relations, Best Interests, Vulnerable Adults, Deprivation of Liberty
Mental Capacity Law Family Law Capacity to Consent to Sexual Relations Best Interests Vulnerable Adults Deprivation of Liberty

Case Brief

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Parties

A Local Authority

Applicant

A Mother

Respondent

A Father

Respondent

DY (by her litigation friend, the Official Solicitor)

Respondent

Procedural Posture

Court of Protection Application / Final Judgment

Legal Issues

  1. 1 Whether DY has capacity to decide to engage in sexual relations on a general non-specific basis
  2. 2 Whether a prospective declaration of incapacity should be made in circumstances where DY is unsettled or distressed

Ratio Decidendi

DY has capacity to decide to engage in sexual relations on a general non-specific basis because she understands and can weigh all relevant information required by law. The local authority's concerns about her capacity when unsettled or distressed are speculative and unsupported by evidence. Any risks can be managed through care and contact arrangements under the MCA 2005, not by a prospective declaration of incapacity.

Court Disposition

Application dismissed; declaration of capacity made

Orders

  • Final declaration that DY has capacity to decide to engage in sexual relations
  • Local authority directed to prepare a care plan to facilitate this and reduce risk