JUDGMENT OF DOUGLAS A KINLOCH IN CAUSA WEST LOTHIAN COUNCIL A LOCAL AUTHORITY INCORPORATED UNDER THE LOGAL GOVERNMENT SCOTLAND ACT 1994 IN RESPECT OF L.Y. THE ADULT [2014] ScotSC 20 (23 June 2014)

JUDGMENT OF DOUGLAS A KINLOCH IN CAUSA WEST LOTHIAN COUNCIL A LOCAL AUTHORITY INCORPORATED UNDER THE LOGAL GOVERNMENT SCOTLAND ACT 1994 IN RESPECT OF L.Y. THE ADULT [2014] ScotSC 20 (23 June 2014)

The court held that, as a matter of law, the Chief Social Work Officer cannot lawfully allow the adult, who is assessed as lacking capacity to consent to sexual relations, to have a sexual relationship, as this would risk condoning or facilitating the crime of rape under the Sexual Offences (Scotland) Act 2009. The court cannot give directions that would condone a criminal offence or aiding and abetting such an offence. The guardian cannot consent to sexual relations on behalf of the adult.

Citation
[2014] ScotSC 20
Parties
Pursuer: West Lothian Council; Adult/respondent: LY
Jurisdiction
Scotland
Judgment Date
23 June 2014
Procedural Posture
Summary Application for Directions Under Adults With Incapacity (scotland) Act 2000 / Judgment on Application for Directions and Subsequent Hearing; No Further Order Made
Outcome
Application for directions answered: question (i) answered in the negative, question (ii) in the affirmative; no further order made after subsequent hearing.
Legal Topics
Guardianship, Capacity to Consent to Sexual Relations, Sexual Offences, Welfare Powers, Reporting Duties
Mental Capacity Law Adult Protection Criminal Law Guardianship Capacity to Consent to Sexual Relations Sexual Offences Welfare Powers Reporting Duties

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Parties

West Lothian Council

Pursuer

LY

Adult/respondent

Procedural Posture

Summary Application for Directions Under Adults With Incapacity (scotland) Act 2000 / Judgment on Application for Directions and Subsequent Hearing; No Further Order Made

Legal Issues

  1. 1 Whether the Chief Social Work Officer can lawfully allow an adult lacking capacity to consent to sexual relations to have a sexual relationship
  2. 2 Whether such allowance is a proportionate balance of rights and risks under the law
  3. 3 Whether the guardian or court can consent to sexual relations on behalf of an incapable adult

Ratio Decidendi

The court held that, as a matter of law, the Chief Social Work Officer cannot lawfully allow the adult, who is assessed as lacking capacity to consent to sexual relations, to have a sexual relationship, as this would risk condoning or facilitating the crime of rape under the Sexual Offences (Scotland) Act 2009. The court cannot give directions that would condone a criminal offence or aiding and abetting such an offence. The guardian cannot consent to sexual relations on behalf of the adult.

Court Disposition

Application for directions answered: question (i) answered in the negative, question (ii) in the affirmative; no further order made after subsequent hearing.

Orders

  • No directions given permitting the adult to have a sexual relationship while lacking capacity to consent.
  • No further order made after hearing on 30 May 2014.