Thread by @TorButlerCole

Some information about the Court of Protection and decisions about capacity to consent to sexual relations, for anyone interested in understanding the context to the current press/Twitter commentary....

The Court of Protection has the power to determine whether someone has or does not have capacity to consent to sexual relations. You can read previous cases about this issue on @BAILII , for example: bailii.org/ew/cases/EWCOP… and bailii.org/ew/cases/EWCA/…

Generally, if someone lacks mental capacity to make a decision, it can be made for that person in their best interests. But this doesn't apply to sex - if you lack capacity to consent, sex is rape. Rape can't be in your best interests.

So, if the court decides someone lacks capacity to consent to sex, it is usually then found to be in their best interests to be subject to 24 hour supervision to prevent them from the risk of being sexually assaulted.

Decisions may also have to be made about contraception. Here's an example: bailii.org/ew/cases/EWCOP…

Assessing capacity to consent to sexual relations can be very tricky. If local authorities decide someone lacks capacity to consent to sex and then prevent them from having sex, that might be a breach of the person's human rights - see this case: bailii.org/ew/cases/EWCOP…

Equally, if they decide the person has capacity and so they are not prevented from having sex, local authorities might have wrongly exposed the person to assault. Have a look at this case, by the same judge: bailii.org/ew/cases/EWCOP…

Because it is such a tricky area, with such important consequences, whatever the outcome, local authorities usually ask the Court of Protection to make the decision about capacity.

Here are some more resources for anyone interested:
rcn.org.uk/professional-d…
gov.uk/government/pub…
39essex.com/mental-capacit…

Also this: choicesupport.org.uk/about-us/how-w…

And this: cqc.org.uk/sites/default/…