Capacity to consent to sexual relations: obscurity illuminated?
Re NB  EWCOP 27
The intimate life of a woman, who is known to the public only by the initials NB, is the subject of a case in the Court of Protection which attracted headlines earlier this year. A further judgment has recently been published, following an interim judgment published in May. This recent judgment (the July judgment) is published here and the May judgment is published here.
The July judgment is not a final judgment deciding whether or not NB has capacity to consent to sexual relations, but it contains a much fuller exploration of the facts than the May judgment and also sets out the further views of the judge, Mr Justice Hayden, on
- The legal test for capacity to consent to sexual relations, and
- The harm done to NB’s private life by media coverage and publicity of the case.
The role of the Court of Protection
The Court of Protection makes decisions about adults who lack mental capacity to make decisions for themselves. Its hearings are open to journalists and to the public, although there are strict rules which forbid publishing details which might identify the adult who is the subject of the case. For the majority of decisions, concerning both management of property and financial affairs, and welfare and healthcare, once the Court has established that an adult lacks capacity to make that decision, it will then make a best interests decision for him or her. This is not so for decisions about sexual relations, as such intimate and emotionally dominated decisions could never be made for a person by someone else — as the judge said (in paragraph 34 of the July judgment) “this is self-evidently necessary for a variety of ethical, moral and legal reasons.” All that the Court can do is decide whether or not someone has capacity to consent to sexual relations for him or herself. If s/he does, s/he is free to make his or her own decisions about this aspect of his or her own private life. But if s/he does not have capacity to consent to sexual relations, then all the Court can do is make orders with a view to preventing opportunities for sexual contact and decision-making arising in that person’s life.