ZX (Capacity to Engage in Sexual Relations) [2024] EWCA Civ 1462

Appeal against a finding that ZX lacks the capacity to engage in sexual relations.

The decision subject to this appeal is A Local Authority v ZX [2024] EWCOP 30, where the underlying facts are set out. In this appeal counsel for the OS, acting for ZX, argued three grounds: 1) the judge applied the wrong legal test to the decision, and in doing so erroneously lowered the standard and quality of evidence that is required to rebut the presumption of capacity enshrined in s.1 MCA; 2) The judge was wrong to conclude to that ZX lacks capacity to consent to sexual relations by reason of being unable to use or weigh information "in the moment" and; 3) the judge was wrong to consider wider issues relating to the protection of the public and the non-availability of mental health services and/or involvement of the criminal justice system when determining whether ZX has capacity to make the decision; and to accept the evidence of Dr Ince given Dr Ince's reliance on these considerations.

Baker LJ, giving the lead judgment, allows the appeal as, broadly, the law remained as set out in the Supreme Court judgment of JB and the judge's inclusion of Re ZZ in a note to Dr Ince, the medical expert, had caused that expert to significantly raise 'the bar as to what a person needs to understand in order to have capacity.' He also allowed the appeal on ground 2 as the judge had failed to establish a 'clear causative nexus' between 'ZX's inability to use or weigh information needed to make a decision to engage in sexual relations and an impairment of, or a disturbance in the functioning of, his mind or brain'. However he rejected grounds 3, as the judge's decision regarding capacity had not been swayed by public policy considerations. 

Read the judgment on Bailii