British Journal of

Learning Disabilities
The Official Journal of the British Institute of Learning Disabilities

ORIGINAL ARTICLE

Consent and sex in vulnerable

adults: a review of case law
Martin Curtice and Jonathan Mayo Juniper Centre, Moseley Hall Hospital, Alcester Road,
Birmingham, B13 8JL, UK (E-mail: mjrc68@doctors.org.uk); Juli Crocombe South Staffordshire and
Shropshire NHS Foundation Trust, The Flanagan Centre, St George’s Hospital, Corporation Street,
Stafford, ST16 3AG, UK

Accessible summary  People with learning disabilities may not know about sexual relationships.
 People with learning disabilities may need education about sexual relationships.
 People with learning disabilities may need education about contraception.

Summary The introduction of the Mental Capacity Act 2005 has brought to the fore issues
regarding capacity in various clinical settings. One important area where capacity
assessment is often vital is regarding vulnerable people being able to consent to
sexual relations. Case law from courts has evolved with regard to this sometimes
complex and emotive issue both before and after the implementation of the Mental
Capacity Act 2005. This article describes and analyses the evolution of such case law
which predominantly involves people with learning disabilities. In doing so, it
explains key principles and tests both for consenting to sexual relations and for the
use of contraception which can be applied and used in clinical practice. The article
also discusses the associated human rights issues for vulnerable adults in trying to
balance the right to sexual relations as part of an individual’s private life whilst
managing potential abuse issues.

Keywords Article 8, consent, human rights, intellectual disability, sexual relations

from court judgments regarding the assessment of capacity

Introduction
The issue of consenting to sexual relationships in vulnerable
adults may be difficult for the person involved but also for
those having to assess and advise. This article provides a
background as to the problems people with learning
disabilities experience with regard to sexual relationships
and how this has been considered by various national
reports. The article then describes various legal cases before
and after the introduction of the Mental Capacity Act 2005
(MCA). In doing so, it highlights tests that have emerged
to consent to sexual relationships and the capacity to use
contraception. All but one of the cases described involves a
person with learning disabilities. A particular case of
significance described is D Borough Council v AB (2011)
which is an important case because it provides an up-to-
date test of capacity to consent to sexual relationships
following the introduction of the MCA. By providing an in-
depth review of important legal cases, this article aims to
provide useful tests and principles when assessing capacity
to consent to sexual relationships or to use contraception

doi:10.1111/j.1468-3156.2012.00753.x ª 2012 Blackwell Publishing Ltd, British Journal of Learning Disabilities, 41, 280–287

which can be used by clinicians when assessing such cases
which at times can be complex and very emotive.
Background
Adults with learning disabilities have been found to have
significantly worse understanding of the general laws
relating to sexuality (e.g. age of consent, incest, abuse) as
well as the laws relating to sexuality and learning disabil-
ities (e.g. whether they could have sexual relationships,
whether they were allowed to marry, what protection they
should expect from the law) (O’Callaghan & Murphy 2007).
This impaired level of knowledge about all aspects of sex
was also found to impair their capacity such that they were
significantly more vulnerable to abuse because they had
difficulty at times distinguishing abusive from consenting
relationships (Murphy & O’Callaghan 2004). Both these
studies recommended there is a need to educate people with
learning disabilities about the laws relating to sexuality and
sex education in general. Dukes & McGuire (2009) specif-
ically addressed the issue of improving capacity with sex
education. In providing four adults with LD with individ-
ually tailored sex education (one-to-one, twice weekly
sessions for 10 weeks), they found that all four people
improved their decision-making capacity for sexual rela-
tions without increasing their Inappropriate Sexual Behav-
iour Scale score. Spiecker & Steutel (2002), in considering
whether sex between people with learning disabilities was
morally permissible, suggested that if people with learning
disabilities did not have ‘the capacities of practical deliber-
ation required for valid consent’, then care providers with
mature reasoning powers should act as their substitutes for
decisions related to sexual relations (such substituted
decision-making is explicitly excluded by the MCA).
In Valuing People (Department of Health 2001), the
Government set out its commitment to enforceable civil
rights for disabled people, including the right to marry and
have a family (para. 2.2). One of the key objectives of this
report, Objective 7, was to enable people with learning
disabilities to develop a range of friendships, activities, and
relationships, including ones of a physical and sexual nature
(para. 7.39). In making this recommendation, however, they
noted that people with a learning disability are vulnerable
to sexual abuse and exploitation such that they should be
protected in law (para. 2.5). This issue had previously been
considered in Setting the Boundaries (Home Office 2000)
which advocated that: ‘vulnerable adults shared the
universal right to a private life which is specifically
protected by the European Convention on Human Rights,
and that private life can include a sexual life. On the other
hand, those who are vulnerable to exploitation have to be
protected by the law’ (para. 4.1.3). In support of this
position, they referred to the Law Reform Commission of
Victoria (1988) which noted that: ‘The law must balance
ª 2012 Blackwell Publishing Ltd, British Journal of Learning Disabilities, 41, 280–287
Consent and sex in vulnerable adults 281
between two competing interests – protecting people with
impaired mental functioning from sexual exploitation, and
giving maximum recognition to their sexual rights. The
difficulty for the legal system in striking a balance between
these interests is compounded by the considerable diversity
of people with mental impairment in terms of extent of
impairment, living circumstances, and sexual interest and
knowledge’ (para. 4.1.3). In an attempt to strike this balance,
Setting the Boundaries gives great consideration to the matter
of consent to sex and recommended a statutory definition of
capacity to consent which reflects both knowledge and
understanding of sex and its broad implications, as pro-
posed by the Law Commission policy paper Consent in Sex
Offences (Law Commission 2000). In A Life Like Any Other?
(Joint Committee on Human Rights 2008), the Joint Com-
mittee on Human Rights noted that adults with learning
disabilities are particularly vulnerable to breaches of their
human rights and that for many of them, the violation of
their human rights is sadly seen as a normal part of their
everyday lives (para. 27). It should, therefore, be emphas-
ised that they have the same human rights as everyone else
(para. 5). In response to this recommendation, Valuing People
Now (Department of Health 2009) was written from a
human rights-based approach that championed this funda-
mental principle (para. 5) and emphasised the importance of
enabling people with learning disabilities to meet new
people, form all kinds of relationships (para. 18) and to
become, and continue to be, parents (para. 33).
Method
This study was designed to analyse the legal issues
regarding consenting to sexual relations in vulnerable
adults. The study had the following components:
1. A search of legal databases to identify relevant cases from
courts.
2. Literature review to identify existing evidence.
Mental Capacity Act 2005
The starting point of the courts, when assessing issues
related to capacity to consent to sexual relationships, is
the MCA. The relevant cases below methodically and
explicitly apply the core sections of the Act: Section 1 (The
principles), Section 2 (People who lack capacity), Section 3
(Inability to make decisions – this incorporates the test of
understanding, retaining, weighing up relevant informa-
tion and being able to communicate the decision) and
Section 4 (Best interests). The courts also use as guidance
the Code of Practice (Department for Constitutional
Affairs 2007). Under section 27 (Family relationships,
etc.), nothing in the Act permits a decision to be made
that consents on behalf of a person to marriage, or to have
sexual relations. These are decisions that can only be
282 M. Curtice et al.
made by the person concerned provided s/he has capac-
ity. All the court can do is to decide whether that capacity
is there. Whilst the courts use the Act as a starting point,
the test of capacity embedded within Section 3 does not in
itself appear to capture the varied problems associated
with assessing capacity to consent to sexual relations.
Thus, more specific tests of capacity have emerged from
court judgments which address the complexities of such
assessments.
Assessing capacity to consent to
sexual relations
Sheffield City Council v E and Another (2004)
This case involved a 21-year-old woman (‘E’) diagnosed
with hydrocephalus, spina bifida and learning disabilities
who functioned at the level of a 13-year-old. She met a
convicted and previously imprisoned Schedule 1 sex
offender (‘S’) and developed a relationship with him such
that they decided within a few months of meeting each
other to marry. The local authority began legal proceedings
wanting to stop them marrying or associating and asserting
that it was in her best interests to neither marry nor
associate with S. Although this case was about the capacity
to marry, it commented on the issue of sexual relations
which whilst not a ‘vital ingredient’ of marriage was of
course an ‘intrinsic part marriage’. The court in this case
noted the test of capacity to marry must be very closely
related to the test of capacity to consent to sexual relations,
and it would be ‘absurd’ if the latter were set at a higher
level than the former, that is, it would be odd if a ‘person
had just sufficient intelligence to consent to marriage but
insufficient capacity to consent to its intrinsic component of
consummation’ (para.15). Hence, to enter into a marriage,
the bar of intelligence and understanding is low. This test is
status specific and not spouse specific, a person either has
the capacity to marry generally or not. The judgment in this
case did not conclude as to whether ‘E’ had capacity to
marry but posed specific questions for experts involved in
the case to address. (See also a modernised definition of
marriage from M v. (1) B (2) A (3) S (2005) in Curtice &
Crocombe 2011).
X City Council v MB, NB & MAB (by his Litigation
Friend the Official Solicitor) (2006)
The applicant (MAB) in this case was a 25-year-old man
who was diagnosed with marked autistic spectrum disor-
der. He demonstrated impaired social relationships with
limited empathy or understanding of the needs of others
and had impaired communication and very little language.
He exhibited challenging and unpredictable behaviour.
The local authority, who had had extensive contact with
ª 2012 Blackwell Publishing Ltd, British Journal of Learning Disabilities, 41, 280–287
MAB and his family, was concerned his parents were
about to take him to Pakistan and possibly be married
there. The judge expanded upon the above judgment in
Sheffield City Council v E & Anor (2004) and commented
that:
…since a sexual relationship is, generally speaking,
implicit in any marriage, it must follow that, generally
speaking, someone who lacks the capacity to consent to
sexual relations will for that very reason necessarily
lack the capacity to marry. The converse, of course, is
not necessarily true. Someone may have the capacity to
consent to sexual relations whilst lacking the capacity
to marry. (para. 85).
On the issue of the level of capacity to consent to sexual
relations, the judgment noted from Australian law (R v
Morgan 1970) that it was enough that a person ‘has
sufficient rudimentary knowledge of what the act comprises
and of its sexual character to enable her/him to decide
whether to give or withhold consent’ and that such
knowledge and understanding ‘need not be complete or
sophisticated’. Furthermore, the judgment commented the
‘test of capacity to consent to sexual relations must for this
purpose be the same in its essentials as that required by the
criminal law’ and developed the following test:
To consent to sexual relations does the person have all of
the following:
1. Have sufficient knowledge and understanding of the
nature and character – the sexual nature and character –
of the act of sexual intercourse?
2. Have sufficient knowledge and understanding of the
reasonably foreseeable consequences of sexual inter-
course?
3. Have the capacity to choose whether or not to engage in
it?
4. Have the capacity to decide whether to give or withhold
consent to sexual intercourse (and, where relevant, to
communicate their choice to their spouse)?
Whilst this test applied to marital sexual relations, it
could of course easily apply to sexual relations with any
sexual partner. So in essence, this judgment said the test
for capacity to consent to sexual relations was really quite
simple, ‘All that was required was… ‘sufficient rudimen-
tary knowledge’ of what the act comprises and of its
character to enable her to decide whether to give or
withhold consent’. It is set at a relatively low level and is
therefore set consistently with the equivalently low test for
capacity to marry. In this case, the court concluded that
MAB lacked capacity to marry and that any alleged
marriage of MAB would not be recognised within English
law. The family were ordered not to undertake any civil or
religious ceremony of betrothal or marriage whatsoever for
MAB, and they were not allowed to take MAB out of
England, Wales and Scotland.

Local Authority X v MM and KM (2007)
This judgment used the test to assess capacity to consent to
sexual relations from X City Council v MB, NB & MAB
(2006) above. It also produced an in-depth review of Article
8 of the European Convention on Human Rights – the right
to respect for private and family life, home and correspon-
dence – with regard to sexual relations (see Curtice &
Crocombe 2011). The case involved a 39-year-old lady who
was diagnosed with a moderate learning disability and
paranoid schizophrenia. She was a vulnerable adult who
was well known to services. Concerns arose regarding her
relationship with her long-term partner (KM) who had a
diagnosis of psychopathic personality disorder such that
authorities felt she was under undue influence from him in
various aspects of her life, for example, where she should
live, who she could have contact with, marriage, financial
affairs, litigation and sexual relations.
The court found she lacked capacity in all decisions being
considered, apart from that of sexual relations where she
was assessed as possessing capacity to consent. In relation
to capacity to consent to sexual relations, the judge consid-
ered it was a question directed to the nature of the activity
rather than to the identity of the sexual partner: ‘A woman
either has capacity, for example, to consent to ‘normal’
penetrative vaginal intercourse, or she does not. It is
difficult to see how it can sensibly be said that she has
capacity to consent to a particular sexual act with Y whilst at
the same time lacking capacity to consent to precisely the
same sexual act with Z’ (para. 87). It does not depend upon
an understanding of the consequences of sexual intercourse
with a particular person. Hence, this case said that capacity
to consent to sexual relations was issue specific and not
partner (or person) specific. The court concluded that MM
did have capacity to consent to sexual relations and ordered
the local authority to provide a care plan in support of
enabling MM’s contact and sexual relationship with KM.
R v Cooper (2009)
This case was based on section 30 of the Sexual Offences Act
2003 – Offences against persons with a mental disorder
impeding choice (for a review of this Act see Curtice &
Kelson 2011). The female complainant was diagnosed with
schizoaffective disorder. She had allowed the defendant to
violate her mouth with his penis because of an irrational
fear he would harm or even kill her. The defendant was
charged with an offence of nonconsensual sexual touching.
Under sections 30–33 of the Sexual Offences Act 2003, a
person is unable to refuse sexual activity because of, or for a
reason related to, a mental disorder if:
1. He lacks the capacity to choose whether to agree to the
touching (whether because he lacks sufficient under-
standing of the nature or reasonably foreseeable
ª 2012 Blackwell Publishing Ltd, British Journal of Learning Disabilities, 41, 280–287
Consent and sex in vulnerable adults 283
consequences of what is being done, or for any other
reason), or
2. He is unable to communicate such a decision to the
alleged offender.
In the judgment, Baroness Hale summarised the main
issues for assessing capacity to consent to sexual relation-
ships. She placed significant emphasis on the cases of Re C
(1994), Re MB (1997) and NHS Trust v T (2004) which
refined tests of capacity to consent to treatment which have
underpinned the enacted MCA, that is, being able to
understand, believe, retain and use and weigh up relevant
information. She commented that the Sexual Offences Act
2003 ‘…puts the matter beyond doubt. A person is unable to
refuse if he lacks the capacity to choose whether to agree
sexual touching whether because he lacks sufficient under-
standing of the nature or reasonable foreseeable conse-
quences of what is being done, or for any other reason’ (s 30
(2)(a) – ‘for any other reason’ encompasses a wide range of
circumstances in which a person’s mental disorder may rob
them of the ability to make an autonomous choice, even
when they have sufficient understanding of the information
relevant to making it, for example, the compulsion which
drives anorexia to refuse food, the delusions which drive a
person with schizophrenia to believe to believe they must
do something, or the phobia (irrational fear) which drives
someone to refuse a life-saving injection (Re MB 1997) or a
blood transfusion (NHS Trust v T 2004). She further noted
that capacity can of course fluctuate and that a mental
disorder may rob a person of free will in a number of
different ways and in a number of different situations and
that a mentally disordered person may be quite capable of
exercising choice in one situation and not another. She
summed up by saying ‘…it is difficult to think of an activity
which is more person and situation specific than sexual
relations. One does not consent to sex in general. One
consents to this act of sex with this person at this time and in
this place. Autonomy entails the freedom and the capacity
to make a choice of whether or not to do so. This is entirely
consistent with the respect for autonomy in matters of
private life which is guaranteed by Article 8 of the European
Convention on Human Rights’ (para. 27).
D Borough Council v AB (Rev 1) (2011)
The primary issue in this case was the issue of the mental
capacity to consent to sexual relations in adults. The
importance of this judgment is that it provided a compre-
hensive review of the legal evolution of this issue (pre- and
post-MCA) which was noted to be ‘highly complex –
legally, intellectually and morally,’ and in doing so pro-
vided a ‘test’ to assess such capacity.
The case involved a 41-year-old man whom the court
called ‘Alan’ whose IQ was assessed as being 48 and who
was ‘seriously challenged in all aspects of his mental
284 M. Curtice et al.
functionality’. He shared accommodation provided by the
local authority with another man called ‘Kieron’. Alan
received a care package which included constant supervi-
sion within both the placement and the community. He had
a ‘vigorous sex drive’ which had led to sexual relations with
people of both genders (such activity included kissing,
mutual masturbation, oral sex but apparently he had never
had heterosexual coitus). Alan’s relationship with Kieron
had developed into a sexual relationship which involved
penetrative anal sex. Further to such developments in this
relationship, two incidents involving Alan exhibiting inap-
propriate and suggestive behaviour towards children
prompted the local authority to make the application to
court seeking a declaration that Alan lacked capacity to
consent to sexual relations and an order authorising a
restriction of contact with Kieron (and another person) to
prevent further sexual relations occurring (interim declara-
tions from the first court hearing enabled Alan to be placed
under close supervision to prevent further sexual activity
other than private masturbation).
The judgment analysed law in this sensitive area which
had evolved through three previous judgments described
above: Sheffield City Council v E & Anor (2004); X City
Council v MB, NB & MAB (2006); and Local Authority X v
MM and KM (2007). However, these cases were decided
before the MCA came into force in 2007. This case therefore
advanced case law by reviewing the issue of the capacity to
consent to sexual relations following the introduction of the
MCA. There was much discussion of Sections 1, 2 and 3 of
the MCA on the assessment of capacity to consent to sexual
relations, but the judge was not persuaded that either the
MCA or its Code of Practice (Department for Constitutional
Affairs 2007) modified the act-specific test described in
Local Authority X v MM and KM (2007).
An expert psychiatrist attempted to provide more spec-
ificity to the simple test created in X City Council v MB, NB
& MAB (2006) and proposed a six-limbed test (para. 23):
For capacity to consent to sex to be present, the following
factors should all be understood:
1. The mechanics of the act.
2. That only adults over the age of 16 should do it (and
therefore participants need to be able to distinguish
accurately between adults and children).
3. That both (or all) parties to the act need to consent to it.
4. That there are health risks involved, particularly the
acquisition of sexually transmitted and sexually trans-
missible infections.
5. That sex between a man and a woman may result in the
woman becoming pregnant.
6. That sex is part of having relationships with people and
may have emotional consequences.
The judge concluded the sixth element was ‘much too
sophisticated to be included in the low level of understand-
ing and intelligence needed to be able to consent to sex’
ª 2012 Blackwell Publishing Ltd, British Journal of Learning Disabilities, 41, 280–287
(he also nicely added that he would have ‘thought that a
deal of sex takes place where one or other party is wholly
oblivious to this supposed necessity’! – para. 37). He also
felt that the inclusion of the second and third elements
would elevate the capacity test to a level considerably above
previous case law and in particular the ‘very simple and low
level’ test described in X City Council v MB, NB & MAB
(2006) namely ‘sufficient rudimentary knowledge of what
the act comprises and of its sexual character’ (para. 22). The
evidence from the psychiatrist emphasised the need for
consent was one of the very first messages conveyed to
people with learning disabilities who are educated about
sex. However, the judge observed that ‘There is a difference,
however, between the teaching of what is right and wrong
in the pursuit of sex, and what level of understanding and
intelligence is needed to be capable of consenting to it’. He
concluded that the capacity to consent to sex remains act
specific and required an understanding and awareness of
(para. 42):
1. The mechanics of the act.
2. That there are health risks involved, particularly the
acquisition of sexually transmitted and sexually trans-
missible infections.
3. That sex between a man and a woman may result in the
woman becoming pregnant.
The judge further observed that with regard to this
3-limbed test, there were however ‘potentially serious
management problems where different kinds of sexual
activities are practiced at different times’, for example, he
felt the first and second criteria were needed to be able to
consent to penetrative anal sex and oral sex but doubted the
third was; he doubted that neither the second or third
criteria were needed to be able to consent to sexual activity
such as mutual masturbation. This newly devised test was
then applied to this case which immediately demonstrated
the potential problems in its application. The psychiatrist
gave evidence that Alan:
1. Had little or no idea what female genitalia were, or what
they were for.
2. Had no concept of sex being the reproductive function.
3. Had no understanding at all of heterosexual coitus.
4. He understood the mechanics of mutual masturbation
and anal sex, with persons of either gender.
5. His knowledge as to health risks was very limited and
faulty – he thought that sex could give you spots or
measles.
6. He knew what a condom was but was unable to put one
on properly on a prosthetic penis.
It was accepted that with regard to heterosexual penetra-
tive vaginal sex that Alan failed all three criteria; with
regard to homosexual anal and oral sex, he failed on the
second criterion. Hence, the judge concluded Alan did not
have the capacity to consent to and engage in sexual
relations. He made interim declarations that the local

authority provided Alan with sex education in the hope that
he gained such capacity and that after 9 months the Court
reviewed the effect the education was making before
making final declarations.
Fluctuating capacity to consent to
sexual relationships
London Borough of Ealing v KS and Others (2008)
This case was similar to Local Authority X v MM and KM
(2007) in that it considered various issues of capacity, for
example, marriage, contraception, sexual relations, resi-
dence, contacts, oophorectomy operation (for an ovarian
cyst) and litigation. One further important aspect it analysed
was the issue of fluctuating capacity to consent to sexual
relations. The woman KS was in her thirties, in her third
marriage, and had a diagnosis of learning disability and a
chronic recurrent schizoaffective disorder for which she had
been admitted under the Mental Health Act 1983 on several
occasions. She had poor insight and periods of noncompli-
ance with medication contributing to relapses which coin-
cided with periods of significantly increased vulnerability
particularly with regard to her sexual behaviour. She lived
in a residential home of mixed sexes.
In applying the tests set out in X City Council v MB, NB &
MAB (2006) and Local Authority X v MM and KM (2007)
(and consideration given to the test from the SOA 2003), the
judge commented that the ‘psychiatric evidence in this case
persuades me that KS has a fluctuating capacity to consent
to sexual intercourse’ the consequences of which were ‘far
more exercising’ and temporary periods of such incapacity
may predictably cause ‘significant management difficulties
for those undertaking her care’. A psychiatrist however
expressed the view that these temporary periods should not
be allowed to prevent KS entering a sexual relationship
should she do so at other times. (The Court advised that
whilst undoubtedly there would be difficult management
issues, extensive sexual health advice and support should
continue to be given to KS when she had capacity). Further
psychiatric evidence suggested that any deterioration in her
mental capacity on this subject was likely to occur over a
period of days and not hours and would be readily
observable to her carers, who would then be on notice that
she no longer had the capacity to consent to sexual relations.
The Court concluded that KS’s carers should be provided
with a ‘clear list of the indicators of a possible loss of
capacity to make decisions about sexual intercourse or other
sexual contacts, so that they may i) recognise them and
ii) act consistently with her other carers in establishing
where the dial points on the barometer of capacity’. The
judge had ‘a degree of confidence that the levels of care and
vigilance of the staff combined with SK’s apparent current
lack of interest in establishing any sexual relations with any
ª 2012 Blackwell Publishing Ltd, British Journal of Learning Disabilities, 41, 280–287
Consent and sex in vulnerable adults 285
male other than her husband, are such that the risk of them
occurring is acceptably low, and even when that care is
undertaken (surreptitiously or otherwise) during her peri-
ods of capacity to consent, the likelihood of a pregnancy
occurring as a result is also minimal’ (para.146) but
appreciated this could not be guaranteed.
In upholding core MCA principles, the judge importantly
noted there may well be periods when KS was considered to
have capacity to consent to sexual intercourse and that at
such times she may make some extremely unwise decisions
as to sexual activity undertaken. Even though she was a
potentially vulnerable individual even when she had
capacity, the judge hoped the law would never come to
the stage ‘that it will seek to intervene to prevent acts on the
part of the citizen which it does not consider to be in that
citizen’s best interests which are nevertheless lawful acts
and which the citizen has the capacity to agree to’
(para.142).
The ability to consent to contraception
A Local Authority v Mrs A, by her Litigation Friend,
the Official Solicitor, & Mr A (2010)
This case involved a 29-year-old married woman. She had
previously had two children removed from her at birth. She
had attended a Special Learning Disability School and was
assessed as having a full-scale IQ of 53. A Clinical Psychol-
ogist’s report commented that she ‘…may experience great
difficulty in keeping up with her age-peers in a wide variety
of situations that require age-appropriate thinking and
reasoning abilities, and may experience significant difficul-
ties across all intellectual domains’. She met her husband in
2006 and married in 2008. He too had a learning disability
with a full-scale IQ of 65 and significant impairment of
intellectual functioning. Concerns emerged regarding the
marital relationship, one issue being that her husband was
placing her under so much pressure to refuse contraception
that her capacity was impaired and/or that she is unable to
exercise her free will in taking a decision for herself. The
local authority sought declarations from the Court that Mrs
A lacked capacity to decide whether to use contraception
and that it would be in her best interests for her to be
required to receive it (ultimately if need be to be given using
force, restraint or local or general anaesthesia).
In applying the MCA, the judge developed a test for
capacity to decide on contraceptive treatment. The test
should be applied so as to ascertain the woman’s ability to
understand and weigh up the immediate medical issues
surrounding contraceptive treatment including:
1. The reason for contraception and what it does (which
includes the likelihood of pregnancy if it is not in use
during sexual intercourse);
2. The types available and how each is used;
286 M. Curtice et al.
3. The advantages and disadvantages of each type;
4. The possible side-effects of each and how they can be
dealt with;
5. How easily each type can be changed; and
6. The generally accepted effectiveness of each.
The judge did not consider questions needed to be asked as
to the woman’s understanding of what bringing up a child
would be like in practice; nor any opinion attempted as to
how she would be likely to get on; nor whether any child
would be likely to be removed from her care. In applying the
test he found she lacked capacity to consent to the use of
contraception. The judgment made observations on the issue
of human rights in that both Article 8 and Article 12 (the right
to marry) of the European Convention on Human Rights
were engaged and that the issues in this case raised important
questions about state interference in matters of personal and
family autonomy. With regard to Article 8 rights, the
judgment also commented that it was ‘…obvious on the facts
of this case, that any step towards long-term court imposed
contraception by way of physical coercion, with its affinity to
enforced sterilisation and shades of social engineering,
would raise profound questions about state intervention in
private and family life’ (para. 77).
Discussion
All but one of the cases described above involve patients with
learning disabilities, but of course similar scenarios could
occur in people with dementia (especially of early onset or
frontal lobe type), those with intellectual impairment post-
head injury, and people in the throes of significant psychotic
or affective episodes. This review, as well as providing a
review of the evolution of assessing capacity to consent to
sexual relations, importantly describes two new legal cases.
Firstly, the case of A Local Authority v Mrs A and Mr A (2010)
introduces for the first time a test of capacity to consent to
the use of contraception. Secondly, the case of D Borough
Council v AB (2011) is very important in that it considers
for the first time the issue of capacity to consent to sex-
ual relations following the introduction of the MCA and
provides a 3-limbed test to assess this. This test can be
readily used in clinical practice although the judgment
shows the problems of its use because of varied nature of
sexual relations. Whilst the MCA is the starting point for
assessing an issue of capacity, the test of capacity within
Section 3 is not in itself sufficient to capture the core issues
when consenting to sex. The case of London Borough of
Ealing v KS & Ors (2008) reminds us that in cases where
there is fluctuating capacity, meaningful and consistent
efforts need to be taken to enable a person to engage in certain
activities, even in the face of significant management difficulties.
People who are incapacitated still have protection under the
European Convention on Human Rights (Herczegfalvy v
Austria 1992) and the Human Rights Act 1998 (as the
ª 2012 Blackwell Publishing Ltd, British Journal of Learning Disabilities, 41, 280–287
Convention is enacted in the UK). Article 8 includes sexual
relations. The cases described above concern vulnerable
individuals and oftentimes it is a balancing act between
enabling such rights whilst protecting from potential abuse
issues. The judgment in Local Authority X v MM & Anor
(2007) when considering such complex and difficult balancing
acts noted: ‘The court must be careful to ensure that, in
rescuing a vulnerable adult from one type of abuse, it does not
expose her to the risk of treatment at the hands of the state
which, however well intentioned, can itself end up being
abusive of her dignity, her happiness and indeed of her human
rights’ (para. 118) and that ‘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 appropri-
ately 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?’ (para. 120).
References
A Local Authority v Mrs A, by her Litigation Friend, the Official
Solicitor, and Mr A (2010) EWHC 1549 (Fam).
Curtice M. & Crocombe J. (2011) Article 8 of the Human Rights Act
1998 and intellectual disability. Adv Psychiatr Treat, 17: 292–300.
Curtice M. & Kelson E. (2011) The Sexual Offences Act 2003 and
people with mental disorders. The Psychiatrist, 35: 261–5.
D Borough Council v AB (Rev 1) (2011) EWHC 101 (COP) (28
January 2011).
Department for Constitutional Affairs (2007) Mental Capacity Act
2005 Code of Practice. Issued by the Lord Chancellor on 23 April
2007 in accordance with sections 42 and 43 of the Act. London, TSO.
Department of Health (2001) Valuing people: a new strategy for
learning disability for the 21st century. Cm 5086. London, TSO.
Department of Health (2009) Valuing people now: a new three-year
strategy for people with learning disabilities. London,
Department of Health Publications.
Dukes E. & McGuire B. (2009) Enhancing capacity to make
sexuality-related decisions in people with an intellectual
disability. J Intellect Disabil Res, 53: 727–34.
Herczegfalvy v Austria (1992) 15 EHRR 437.
Home Office (2000) Setting the boundaries: reforming the law on
sexual offences. London, Home Office Communication Directorate.
Joint Committee on Human Rights (2008) A life like any other?
Human rights of adults with learning disabilities. Seventh Report
of Session 2007–08, Report and formal minutes, Volume 1. HL
Paper 40 -I HC 73-I. London, TSO.
Law Commission (2000) Consent in sex offences – a report to home
office sex offences review. Available at: http://www.justice.gov.
uk/lawcommission/docs/Consent_in_Sex_Offences.pdf (last
accessed 14 March 12).
Law Reform Commission of Victoria (1988) Sexual Offences against
People with Impaired Mental Functioning. Report No. 15
Local Authority X v MM & Anor (No. 1) (2007) EWHC 2003 (Fam)
(21 August 2007).
 Consent and sex in vulnerable adults 287

London Borough of Ealing v KS & Ors (2008) EWHC 636 (Fam)
(03 April 2008).
M v. (1) B (2) A (3) S (by her litigation friend the Official Solicitor)
(2005) EWHC 1681 (Fam).
Murphy G. & O’Callaghan A. (2004) Capacity of adults with
intellectual disabilities to consent to sexual relationships. Psychol
Med, 34: 1347–57.
NHS Trust v T (adult patient: refusal of medical treatment) (2004)
EWHC 1279 (Fam), [2005] 1 All ER 387.
O’Callaghan A. & Murphy G. (2007) Sexual relationships in adults
with intellectual disabilities: understanding the law. J Intellect
Disabil Res, 51: 197–206.
R v Cooper (2009) UKHL 42.
R v Morgan (1970) VR 337.
Re C (Adult: Refusal of Treatment) (1994) 1 WLR 290.
Re MB (Medical Treatment) (1997) 2 FLR 426.
Sheffield City Council v E & Anor (2004) EWHC 2808 (Fam).
Spiecker B. & Steutel J. (2002) Sex between people with “Mental
Retardation”: an ethical evaluation. J Moral Educ, 31: 155–69.
X City Council v MB, NB and MAB (by his Litigation Friend the
Official Solicitor) (2006) EWHC 168 (Fam).

ª 2012 Blackwell Publishing Ltd, British Journal of Learning Disabilities, 41, 280–287