PN (Capacity: Sexual Relations and Disclosure) [2023] EWCOP 44

​Judgment concerning whether the P had capacity to make decisions about engagement in sexual relations.

This judgment concerns a 34 year old man, PN, who has lived in the care of the First Respondent Local Authority for many years due to having significant care needs as a result of his mild learning disability and autistic spectrum disorder (ASD). There is no dispute about PN’s diagnoses or his lack of capacity to conduct these proceedings. Previous declarations have been made that he lacks capacity to make decisions about his residence, care, contact with others, and use of social media and the internet. The issues at this hearing were whether PN lacks capacity to make decisions about engagement in sexual relations, about disclosing information about the risk of sexual harm he poses to others, and about allowing the Local Authority to disclose information about the risk of sexual harm he poses to others.

The judge concluded that that PN does have capacity in relation to the three decisions under consideration and that those findings were consistent with the previous finding that he lacks capacity to make decisions about (non-sexual) contact with others. The courts need to try to make decisions that are coherent and that provide clarity for carers and those responsible for acting in P’s best interests. The more refined the decision-making under consideration, the more difficult it can be to delineate the boundaries between different kinds of decision-making and to implement practical care and support. Rather than seeking to identify yet more specific kinds of decision-making, it might be simpler and of more practical use to focus on the core decision-making areas, such as residence, care, contact, marriage, sexual relations, property and affairs, use of social media and the internet, and conduct of litigation, but to be astute to apply the principles involved in assessing capacity to the particular individual characteristics and circumstances of the person involved.

Read the full text of the judgment here