Medical Law Review, Vol. 22, No. 4, pp.

620–630
doi: 10.1093/medlaw/fwu019
Advance Access Publication: June 26, 2014

CO M M E N TA RY

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CAPACITY TO CONSENT TO SEX
JONATHAN HERRING1* and JESSE WALL2
1
Exeter College, University of Oxford, Oxford OX1 3DP, UK
2
Faculty of Law, University of Otago, Otago, New Zealand
*Email: jon.herring@law.ox.ac.uk

‘When is it appropriate for society to intervene paternalistically in a decision or decisions

that individuals make as to their sexual relations?’ With these words, Sir Brian Leveson
opened the judgement of the Court of Appeal in IM v LM1 and declared the key issue in
the case. The Court of Appeal was provided with an opportunity to resolve a series of
apparently conflicting decisions concerning the capacity to consent to sex. IM v LM will
now be regarded as the leading authority on the question until the Supreme Court rules
on it. The discussion in the case throws up some interesting issues on the nature of
mental capacity and the definition of capacity within the Mental Capacity Act 2005.

T HE FACT S
LM was aged 41 at the date of the hearing and in a hospital due to a range of medical
problems. She had a substantial impairment in her intellectual capacity. She had had
three children with an abusive husband, although she had not been able to care for
them and they had all been raised by her mother.
The proceedings arose in this way: AB, a man with an extensive criminal record,
had been a friend of LM and was visiting her in hospital. Following ‘inappropriate
behaviour’, AB was prohibited by the local authority from seeing LM and he chal-
lenged the legality of these restrictions before the Court of Protection. At the hearing,
it was declared LM lacked capacity to make decisions concerning residence, care, and
contact with others. However, Peter Jackson J ruled that she did have capacity to
consent to sexual relations, noting that ‘she understands the rudiments of the sexual
act; she has a basic understanding of issues of contraception and the risks of sexually
transmitted disease.’2 On appeal by her mother, the key question was the extent to
which LM could consent to sexual relationships.

1 [2014] EWCA Civ 37.

2 Quoted [18].

© The Author [2014]. Published by Oxford University Press; all rights reserved. For Permissions, please email: journals.
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• 620
 Commentary • 621

It is worth noting that the issue arose following a complaint not from LM herself,
but a man who wished to have sex with her, and the appeal was brought by LM’s
mother, not the local authority. So although the decision has been portrayed as a case
of a disabled woman seeking liberty from the control of the local authority that is not,
in fact, how the dispute came about.3

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A S SE S S IN G CA PAC IT Y
The key question in this case was whether LM had the capacity to consent to a sexual
relationship. In particular, whether her mental impairment meant she did not ‘under-
stand the information relevant to the decision’ or was unable to ‘use or weigh that
information as part of the process of making the decision’ and so lacked capacity
under the test set out in section 2(1), Mental Capacity Act 2005.
The expert evidence presented to court demonstrated the difficulty. One expert
concluded that LM did understand at a general level some basic facts about sexual
intercourse, such as that it could cause pregnancy and carried a risk of STIs, although
she struggled to apply this knowledge in the context of specific situations she was in.
Further, the report raised concerns about her relationship with AB and the extent he
could pressurise her into having sex. Another expert explained:

There are two very clear questions there. One is: does she understand sex, the
nature and the consequences? Yes, she does. Would she be able to make
choices about whether she would choose to engage or not engage in sexual
activity? I feel that that becomes then an issue about who is she engaging in
sexual activity with and what might their pressures be. So it becomes then very
much an issue of almost an environmental issue of who is there, who is making
those kind of requests.”4

This evidence brought to the fore the issue which had troubled the courts in earlier
cases: the difference between issue-specific and situation-specific tests.

Issue specific v situation specific

The Mental Capacity Act 2005 makes it clear that tests for capacity relate to particular
questions. A person may have capacity to make some decisions, but not others. That
means that much can turn on what is defined as the question at hand. When consider-
ing whether a person has capacity to consent to sex are we considering whether the
person understands at a general level the nature of sex or are we looking at whether a
person has capacity to consent to sex with a particular person at a particular time?
This has been termed by the lower courts as a choice between the issue-specific test
and the situation-specific test.5

3 <http://thesmallplaces.blogspot.co.uk/2014/01/framing-test-of-capacity-to-consent-to.html>.
4 [14].
5 In some cases, the contrast is presented using the language of person specific, rather than situation specific.
However, that, we think is potentially confusing and so we have used the terminology situation specific.
622 • MEDICAL LAW REVIEW

The issue-specific approach finds support in a number of first instance judgments.

In Re MM 6 Munby J

capacity to consent to sexual relations is, in my judgment, a question directed

to the nature of the activity rather than to the identity of the sexual partner.

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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 the 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. So capacity to sexual intercourse depends upon a person having suffi-
cient knowledge and understanding of the nature and character—the sexual
nature and character—of the act of sexual intercourse, and of the reasonably
foreseeable consequences of sexual intercourse, to have the capacity to choose
whether or not to engage in it, the capacity to decide whether to give or with-
hold consent to sexual intercourse. It does not depend upon an understanding
of the consequences of sexual intercourse with a particular person. Put shortly,
capacity to consent to sexual relations is issue specific; it is not person
( partner) specific.

So under the issue-specific test, the assessment focuses on whether the individual
understood the sexual act in the abstract: the physical nature of it; medical dangers
associated with sex; the risk of pregnancy.
The situation-specific test is most clearly supported in the judgement of Baroness
Hale in Regina v Cooper 7 which offence an offence under section 30 of the Sexual
Offences Act 2003 of sexual touching of a person with mental disorder impeding
choice. The key question was whether the offence applied referred to a person who
generally lacked the capacity to consent or whether it applied in a case where in this
particular situation the complaint’s mental disorder meant she lacked capacity. Baron-
ess Hale stated:

[I]t 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 con-
sents 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 for the
Protection of Human Rights and Fundamental Freedoms.8

The situation-specific test requires the assessment of the individual in the context of a
particular sexual act. This may include facts about the other party; the relational

6 [2007] EWHC 2003 (Fam), [86], [87]. See also A Local Authority v H [2012] EWHC 49 (COP); London
Borough of Ealing v KS [2008] EWHC 636 (Fam); A Local Authority v TZ [2013] EWHC 2322 (COP).
7 [2009] UKHL 42.
8 [27].
 Commentary • 623

context; and the broader circumstances around the incident. It is also sensitive to the
fact that the circumstances of the act or the identity of their partner may impact on
the ability of the person to process the knowledge they have about sex.

The approach of the Court of Appeal to the conflict between the tests

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The Court of Appeal in IM decided that the apparent conflict between the issue-
specific and the situation-specific test was because of an important distinction
between the criminal law and the civil law. The criminal law ‘bites only retrospect-
ively’.9 It is a judgement about a particular event in the past. In contrast, the civil law
is prospective and seeks to protect those who lack capacity. In relation to Baroness
Hale’s comments, Leveson P stated:

Baroness Hale is plainly right that: ‘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’
[emphasis added]. The focus of the criminal law, in the context of sexual
offences, will always be upon a particular specific past event with any issue relat-
ing to consent being evaluated in retrospect with respect to that singular event.
But the fact that a person either does or does not consent to sexual activity with
a particular person at a fixed point in time, or does or does not have capacity to
give such consent, does not mean that it is impossible, or legally impermissible,
for a court assessing capacity to make a general evaluation which is not tied
down to a particular partner, time and place.10

The point the Court of Appeal was making is that the tests are not in conflict, but
rather asking different questions and were appropriate in different contexts. The issue-
specific test was asking whether a person as a general matter has capacity to consent,
in other words whether one could imagine the person being able to give effective
consent at some point in the future. The order given using such a test the court
would only be saying that, in principle this person would be able to give consent
under some circumstances.
The situation-specific test would apply if an order was sought about whether a
person had capacity to consent with a particular person at a particular time. While
that question might legitimately arise in the criminal context, it did not in the civil
context. The Court relied on pragmatic reasons for that conclusion:

Going further, we accept the submission made to us to the effect that it would
be totally unworkable for a local authority or the Court of Protection to
conduct an assessment every time an individual over whom there was doubt
about his or her capacity to consent to sexual relations showed signs of immedi-
ate interest in experiencing a sexual encounter with another person. On a prag-
matic basis, if for no other reason, capacity to consent to future sexual relations
can only be assessed on a general and non-specific basis.11

9 [48].
10 [76].
11 [77].
624 • MEDICAL LAW REVIEW

Leveson P premised the distinction between issue-specific and situation-specific deci-

sions upon the distinction between sections 17 and 27 of the MCA. They distinguish
the aspects of a person’s life that a court may make orders with regards to (section
17) and the aspects of a person’s life that a court cannot provide consent on behalf of
the incapacious person (section 27). Leveson P suggested that because under section

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27, the court could not provide consent to sex with a particular person that ‘supports
the conclusion that assessment of capacity to consent to sexual relations can only be
on a general basis, rather than tied to the specific prospect of a sexual relationship
with a particular individual in specific circumstances’.12 With respect, that is far from
convincing. What the court has jurisdiction over with regards to an incapacious
person is a fundamentally distinct question to how it is the court ought to assess
whether a person has capacity. The purpose of section 27 is to reserve a sphere of
liberty that prevents the court from making a decision on behalf of an incapacious
person to a series of important decisions (such as consenting to marry, consenting to
sexual relations). This cannot be taken as statutory indication that the court, when
assessing whether someone has the capacity to make these decisions, the assessment
ought to be an issue-specific assessment.
Furthermore, even if we were able to draw an inference from the distinction
between section 17 and section 27 to inform the section 3(1) test, it is not clear what
that inference could be. The activities under section 27 are not clearly issue-specific
decisions. For instance, whether someone has the capacity to consent to assisted
reproductive therapy under the HFEA is likely to be assessed with reference to the
co-participants in the therapy (i.e. a situation-specific test).

Applying the issue-specific approach

The Court of Appeal explained that in applying the issue-specific approach, the court
would focus on whether the person understood the key facts, while the ability to use
and weight the information was ‘unlikely to loom large’. That was because that ability
would vary from situation to situation. If the question the court is asking is whether
one could imagine a set of circumstances where a person could consent one can see
that having concluded that they are able to understand the information it would be
surprising that given the right circumstances they would be unable to weight it up.
Leveson P went on:

Perhaps yet another way of expressing the same point is to suggest that the infor-
mation typically, and we stress typically, regarded by persons of full capacity as
relevant to the decision whether to consent to sexual relations is relatively limited.
The temptation to expand that field of information in an attempt to simulate
more widely informed decision-making is likely to lead to what Bodey J rightly
identified as both paternalism and a derogation from personal autonomy.13

This may be open to question. If one is considering a particular incident of sexual

intercourse, it is far from apparent that only a limited range of bits of information are

12 [78].
13 [84].
 Commentary • 625

taken into account by people generally. No doubt, there are some occasions in which
sex is a relatively spontaneous act, but in many cases it may be the result of careful
thought and deliberation. It will take on a particular meaning within the context of
the relationship between the parties.

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Outcome
Peter Jackson J at first instance had concluded that LM lacked capacity to make deci-
sions about where she should live, about how her care should be provided, or about
how much time she should spend with others. However, he ordered that she did have
capacity to consent to sex and so her relaxation of supervision contact with AB should
be permitted. Although the Court of Appeal was not explicit in saying so, presumably
this was with a view that the AB and LM would be free to engage in sex.

T HE B ROAD ER I SSU ES
There are, of course, some big issues underlying this case. As indicated in the opening
remarks, there is a clash between the interests of protecting those with mental disor-
ders from sexual exploitation and allowing them autonomy to have a sex life.

The issue-specific/situation-specific test

The Court of Appeal is correct in its argument that the kind of legal question being
asked or the kind or order sought determines whether an issue-specific or person-
specific test is used. If you are dealing with a criminal case, then it must be a person-
specific test. If the court is being asked to rule on whether a person could ever be
capable of consenting the issue-specific test is more helpful. However, we would argue
that the issue-specific test and the order it seeks is inappropriate both at a theoretical
level and a practical level.

Theoretical problems with the issue-specific test

The Mental Capacity Act 2005 has received much praise for moving away from a gen-
eralised assessment of a person generally having or not having capacity towards an
approach that asks whether a person has capacity to consider the particular issue at
hand. One of the problems with just asking ‘does this person have capacity’ is that
inevitably the response will be, it depends on the question to be decided. For nearly
everyone, there are some issues we have capacity to decide and others we do not.
Similarly, even the most capacious person will lack capacity in some contexts. They
may on a particular occasion be too drunk, too exhausted, or too ignorant to make a
decision. When we say a person has capacity to make a decision, we inevitably mean
that in the right context, they can have the capacity to make the decision.
The key difference between the issue-specific and the situation-specific approach is
that only the later take into account external factors that may influence an individual.
It makes some sense to take an issue-specific approach when these situational factors
do not greatly affect the essence of the issue. So a person may be said to generally
have capacity to enter a mortgage. The identity of the bank and the amount of money
involved may vary, but they will not impact on the essence of the transaction. Of
course, we can imagine a case where a bank manager is so charismatic that she over-
bears the will of the person, but that will be a rare case. We can sensibly ask whether
626 • MEDICAL LAW REVIEW

the person has capacity to consent to sign a mortgage looking at certain set facts
because these are standard in all such transactions.
Sexual relations are, however, different. The identity of the person and the nature
of the act fundamentally change the nature of the act. This is recognised in the Sexual
Offences Act 2004. Where there is a deception as the identity of the person or the

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nature or purpose of the act there is no true consent.14 This recognises that sex with
A is fundamentally different with sex with B. That sex in order to demonstrate love is
fundamentally different from sex to be recorded for blackmail purposes.15 One
cannot consent to sex in the abstract because the nature of what happens is lacking
any substantive meaning unless the context is provided.
A further important point can be gleaned from the decision of the Court of Appeal
in York CC v PC where the court determined that the test for capacity to cohabit was
situation specific. In part, this was because as McFarlane LJ put it

the effect that removing the specific factual context from some decisions leaves
nothing for the evaluation of capacity to bite upon.’16

Capacity to make a decision depends on deliberation. Yet deliberation requires an

assessment on the effects and consequences of a decision. The effects and conse-
quences of some decisions will be substantially the same regardless of the detail of the
circumstances. The purchase of a newspaper would be on example. Others matters
will have enormously different effects and consequences depending on the details.
This is true of a medical decision, for example, and we would argue sex. It must, there-
fore, be shown that the decision maker has sufficient understanding of the particular
considerations relevant to the specific decision. If we consider whether a person
understands the sexual act in the abstract, there is very little information for the deci-
sion to bit on. And the matters that would be considered would only be a small
portion of those relevant in an actual decision to have sex.
Changes in the circumstances can dramatically alter the nature of the act, in a way
which is not so for car selling. Asking whether a person can consent to sex in the
abstract is a little like asking whether they can put their name on a piece of paper.
Well it all depends on whether the piece of paper is a birthday card or a will. The
question is meaningless. Or at least as useful as being told in deciding whether a
person has capacity to sign a will to be told the person understands what it means to
write their name.
There is a broader issue here and that is the nature of capacity. Capacity is not
simply a matter of comprehension, but it is a matter of judgement and emotion. Our
emotions play an important part of our decisions, in some areas rather than others.
By, in effect, reducing the capacity to consent to sex test to simply the understanding
of factual information, the courts have shown an over-rationalistic understanding of
how we exercise capacity.

14 S. 76 SOA 2003.
15 R v Devonald [2008] EWCA crim 508.
16 Ibid [35].
 Commentary • 627

A good example of this is the recent decision in A NHS Trust v DE,17 which involved
a couple with severe learning difficulties. While not going into the particular issue raised
in that case (sterilisation), but one cannot be moved, as the judge clearly was, but the
‘remarkable and very precious’ relationship between the couple, that had lasted for over
ten years. What is notable is that what made this relationship precious was not their

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understanding of the mechanics of sex or the risks associated with it, but rather the ten-
derness, respect, and love demonstrated by the couple towards each other. It is those
things, the relational context, which left the court supportive of ensuring the relationship
could continue. For capacity to consent to sex, it is the relational context which is more
important than the understanding of the mechanical aspects.18 These are sidelined when
our assessment of the capacity for sex becomes limited to an intellectual understanding.
We believe that those with quite profound mental disorders might in the context
of a mutual, non-exploitative, nurturing relationship be able to autonomously consent
to sex. However, that same person may be open to abuse. As Suzanne Doyle19 argues:

at least in sexual matters, women with intellectual disabilities are predisposed to

being both subservient to the wishes of others, particularly men, and that there
is a greater likelihood that due to ‘gaps’ or a complete absence of a ‘script’ for
sexual behaviour, such persons are more likely to be unable to refuse consent to
sexual activity when initiated by another.

This is why capacity to consent can only be looked at in the actual situation and rela-
tionship they are in.

Policy
The Court of Appeal claimed that it was unworkable for local authorities to seek
court intervention in relation to each potential partner of a vulnerable adult in their
care. But what position has the court left the local authority? They have obligations
towards that person to ensure their human rights are not infringed, to protect them
from abuse. The courts have told them the person might in certain circumstances be
capable of consenting. That leaves the local authority in an impossible position. The
court order has provided with effectively no guidance and, even worse the Court of
Appeal has shut the door on the one helpful thing the courts could have offered a dec-
laration about whether there is capacity to consent in a particular situation.
This overlooks the obligations owed by the state to protect vulnerable adults. In Z
& Others v United Kingdom,20 the European Court of Human Rights stated:

The Court re-iterates that Article 3 enshrines one of the most fundamental
values of democratic society. It prohibits in absolute terms torture or inhuman

17 [2013] EWHC 2562 (Fam).

18 J Herring, ‘Relational Autonomy and Rape’ in S Day Sclater and others (eds) Regulating Autonomy (Hart
Publishing, Oxford 2009) 52–68.
19 S Doyle, ‘The Notion of Consent to Sexual Activity for Persons with Mental Disabilities’ (2010) 31 Liver-
pool LR 111.
20 34 EHRR 3 (10 May 2001), [73].
628 • MEDICAL LAW REVIEW

or degrading treatment or punishment. The obligation on High Contracting

Parties under Article 1 of the Convention to secure to everyone within their jur-
isdiction the rights and freedoms to find in the Convention, taken together with
Article 3, requires States to take measures designed to ensure that individuals
within their jurisdiction are not subjected to torture or inhuman or degrading

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treatment, including such ill-treatment administered by private individuals.
These measures should provide effective protection, in particular, of children
and other vulnerable persons and include reasonable steps to prevent ill-
treatment of which the authorities had or ought to have had knowledge.

The statistics on sexual abuse of people with mental disorders that 61 per cent of
women with mental disorders were found to have suffered sexual abuse and 25 per
cent of men.21 A Mencap Report found that levels of sexual abuse among people with
learning difficulties were four times higher than among the rest of the population.22 It
seems that the current law and practice is failing to protect those with mental disabil-
ity from abuse. The media in early 2014 reported a woman in her forties claiming to
have been raped up to sixty times by a care worker and claims that psychiatric hospi-
tals are ‘an open playing field for predators’.23
We suspect Ralph Sandland24 has put his finger on the central point of policy in
this area. He argues that the courts have set ‘the bar for capacity at a relatively low
level, consistent with extending the right to exercise sexual freedom to the greatest
possible number and the underlying prioritisation of consideration for autonomy’.
The courts in effect are not wanting to restrict people’s sexual autonomy and discour-
aging local authorities from doing so. Many people’s instincts will be sympathetic
with this. But let us move from the rhetoric to reality. Let us say a person is capable of
consenting in optimum circumstances, but in many instances will not. Arguably that
was the position for LM in this case. Protecting their sexual autonomy is interpreted
as allowing them to have sex. Let us say, optimistically in many cases, that half of
these encounters will be consensual and half will be non-consensual, that is they will
be rape. Is that a satisfactory balancing of the sexual autonomy issues? We doubt it.
The approach taken by the Court of Appeal might be read as suggesting that cases
where it is claimed that in a particular situation an individual was unable to be give
consent are best left to the criminal courts. There is some appeal in this approach. If
there is a person of fluctuating abilities to consent, it is preferable not to limit their
freedom by imposing on-going surveillance and rather to punish those have sex with
them if they have no consent.
Such an approach has some appeal but is not an adequate response. First, there is
the obvious response that victims would preferable to prevent crimes occurring than
simply punishing them when they occur. Second, there is ample evidence of the

21 M McCarthy and D Thompson, ‘Sexual Abuse by design: An Examination of the Issues in Learning Dis-
ability Services’ (1996) 11 Disability Soc 205.
22 Mencap, Behind Closed Doors (Mencap, London 2001). See further P Cambridge, ‘Patterns of Risk in
Adult Protection Referrals for Sexual Abuse and People with Intellectual Disability’ (2011) 24 J Appl Res
Intell Disab 118.
23 P Wells, ‘Ex-psychiatric Patient Speaks of Repeated Abuse’; <http://www.bbc.co.uk/news/uk-25680659>.
24 R Sandland, ‘Sex and Capacity: The Management of Monsters?’ (2013) 76 MLR 981.
 Commentary • 629

difficulties in prosecuting sexual offences against those with learning difficulties.

Newspaper reports made much of the reported comments of one of the leading
experts in the area, Prof Betty Stanko, that difficulties in successful prosecution means
that rape of vulnerable women ‘has been effectively decriminalised’.25
In A Local Authority v TZ Mostyn LJ asked, rhetorically, ‘Is the local authority sup-

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posed to vet every proposed sexual partner of AB to gauge if AB has the capacity to
consent to sex with him or her?’ He suggests this is utterly impractical, but is it really?
Local authorities have children on their at risk register, large numbers of them, and
are responsible to ensure they are not subject to sexual abuse or indeed any other
kind of abuse. While notoriously local authorities sometimes get that wrong, by and
large they able to undertake this protective role reasonably well. It is certainly not
something that is unworkable. We would not accept in the child protection area the
difficulty of meeting the obligation to determine the existence of the obligation.
Human rights should be protected even where it is inconvenient to do so; at least if
appropriate resourced. Indeed, in IM itself, it had been determined that LM lacked
capacity to make decisions about contact and so the local authority was required to
regulate contact. That would be, if anything, a more onerous obligation of surveillance
than restricting sexual contact.

Preferred solution
The Court of Appeal held that requiring a local authority to make an application to
court on each occasion a person of questionable capacity wished to have sex was
unworkable. However, leaving local authorities with a declaration that LM could, in
theory, have capacity to sex does not offer them much help either. It leaves them
open to claims they failed to protect a vulnerable adult in their care from abuse. What
would be more desirable is if the court were to set out the factor that in the case of
the particular person might indicate or not indicate consent and would be an appro-
priate indicator of the local authority to interfere to protect her. At least then the local
authority has some guidelines to use to determine whether the sexual relationship was
one to be concerned about. This is not as alien to judicial practice as might be
thought. When dealing with cases involving very sick babies, for example, the court
rarely rules ‘the machine should be switched off’ or ‘the machine should be left on’
but gives general guidance that the doctors to apply to the situation as it develops.

CON C LU S IO N
This case demonstrates the difficulties the courts continue to face in interpreting the
test for mental capacity within the MCA. We have argued that in interpreting the MCA,
assessment of capacity should not be limited to intellectual understanding. This is true
for capacity to engage in sex, but also in many other areas of life. For everyone, having
capacity to engage in sex is not about understanding facts (or at least not very much at
all about that) it is about values such as tenderness; respect; mutuality; sensitivity. It is

25 M Newman, ‘Rape of Vulnerable Women “has been effectively decriminalized”’; <http://www.

independent.co.uk/news/uk/crime/exclusive-rape-of-vulnerable-women-has-been-effectively-decriminalised-
9161336.html>.
630 • MEDICAL LAW REVIEW

about having time; feeling safe; and being free to say no.26 These are what are central to
a capacity to engage in sex for everyone. Sadly they are all missing from the approach
taken by the Court of Appeal to assessing the capacity of those whose capacity is ques-
tioned. History teaches us of the harms in trying to suppress or deny the sexuality of
those seen as being mentally disordered. But, we must be all too aware of the extensive

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sexual abuse of vulnerable adults. Seeking to find the balance between protection and
freedom requires a sensitive person centred and situation-specific approach. Sadly, the
Court of Appeal by reducing capacity to consent to sex to an understanding of brute
physical facts, both denies the sexuality of those who are mentally disordered and fails
to protect them from abuse. If the same approach is taken in other areas of life where
the MCA applies, we are in danger of restricting assessment of mental capacity to an
assessment of intellectual functioning. That, we suggest, would demonstrate an overly
narrow approach to asking whether a person is able to make an autonomous decision.
The law on mental capacity should recognise that there is much more to human beings
than their thoughts.

26 M McCarthy and D Thompson (eds), Sexuality and Learning Disabilities (Pavilion, London 2011).