D Borough Council v AB (Rev 1)

D Borough Council v AB (Rev 1)

Alan does not presently have the capacity to consent to sexual relations, as he lacks sufficient understanding of the mechanics, health risks, and consequences of sexual activity. The test for capacity remains act-specific and requires only a low level of understanding, consistent with Munby J's approach. Declarations should be interim, and sex education should be provided to attempt to raise capacity, with review after nine months.

Parties
Applicant: D Borough Council; Respondent: AB
Jurisdiction
England and Wales
Judgment Date
28 January 2011
Procedural Posture
Court of Protection / Judgment
Outcome
Interim declaration that Alan lacks capacity to consent to sexual relations; order for sex education; review after nine months; permission to appeal granted.
Legal Topics
Capacity to Consent to Sexual Relations, Sex Education for Persons With Learning Disabilities, Deprivation of Liberty, Best Interests, Mental Capacity Act 2005
Mental Capacity Family Law Human Rights Capacity to Consent to Sexual Relations Sex Education for Persons With Learning Disabilities Deprivation of Liberty Best Interests Mental Capacity Act 2005

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Parties

D Borough Council

Applicant

AB

Respondent

Procedural Posture

Court of Protection / Judgment

Legal Issues

  1. 1 What is the legal test for capacity to consent to sexual relations?
  2. 2 Should declarations regarding capacity be interim or final?
  3. 3 Should sex education be provided to attempt to raise capacity?

Ratio Decidendi

Alan does not presently have the capacity to consent to sexual relations, as he lacks sufficient understanding of the mechanics, health risks, and consequences of sexual activity. The test for capacity remains act-specific and requires only a low level of understanding, consistent with Munby J's approach. Declarations should be interim, and sex education should be provided to attempt to raise capacity, with review after nine months.

Court Disposition

Interim declaration that Alan lacks capacity to consent to sexual relations; order for sex education; review after nine months; permission to appeal granted.

Orders

  • Declarations of incapacity are interim.
  • Local authority to provide Alan with sex education.