ZX (Capacity to Engage in Sexual Relations)

Capacity to engage in sexual relations is assessed under sections 2 and 3 of the Mental Capacity Act 2005 using the decision-specific approach in A Local Authority v JB [2021] UKSC 52. The court must identify relevant information, including the other person’s ability to consent and actual consent throughout the activity, and decide whether P is unable to use or weigh it. A clear causative nexus with an impairment or disturbance of mind or brain is required. A history of non-consensual sexual conduct does not itself prove incapacity. It may reflect a capacitous choice to disregard consent. Later decisions applying JB do not alter its test. An assessment based on a mistaken belief that they do is unreliable. Public-protection concerns must not replace the capacity inquiry.

ZX, aged 18, was the subject of proceedings in the Court of Protection concerning capacity to make decisions about residence, care, contact, social media, property and affairs, tenancy and engaging in sexual relations. He had ADHD, conduct disorder and a history of harmful and non-consensual sexual behaviour.

Dr Ince initially assessed ZX as having capacity to engage in sexual relations. After receiving a summary of Re ZZ, he changed his opinion. HH Judge Burrows subsequently declared that ZX lacked capacity in that area and made related orders concerning his care and deprivation of liberty.

The Official Solicitor appealed. The central issues were whether the judge applied the correct JB test, whether the evidence established an inability to use or weigh information about consent in the moment, whether a clear causative nexus had been proved, and whether public-protection concerns had improperly influenced the capacity assessment.

Appeal allowed in part. The declaration that ZX lacked capacity to engage in sexual relations was set aside and replaced by an interim declaration to that effect under COPR rule 10.10. The matter was remitted to Theis J for case management, including arrangements for a fresh assessment.

1. The governing approach is that prescribed by sections 2 and 3 of the Mental Capacity Act 2005 and settled by A Local Authority v JB [2021] UKSC 52. It was not materially altered by Re PN [2023] EWCOP 44 or Re ZZ [2024] EWCOP 21. The court may, where appropriate, examine whether P can use information about consent in the moment. That is consistent with JB and with In re M (An Adult) (Capacity: Consent to Sexual Relations) [2014] EWCA Civ 37.
2. Dr Ince had misunderstood Re ZZ as changing the legal threshold. That misunderstanding materially undermined his revised opinion. Given the radical change between his reports, the judge should have required a further interview and assessment before deciding capacity.
3. The judge’s alternative reasoning was also flawed. A history of non-consensual sexual activity does not, without more, establish an inability to understand, use or weigh information about consent. It is at least as consistent with understanding the information but choosing to disregard it. The judge rejected the central finding that ZX was impulsive, describing him instead as cunning, opportunistic and capable of planning sexual contact, but did not explain why the remaining evidence established incapacity.
4. The judge also failed to establish the clear causative nexus required by section 2(1). Listing cognitive deficits and asserting that they would apply during sexual activity did not show which features of ZX’s disorders caused an inability to decide despite his understanding and retention of the relevant information.
5. Public-protection consequences may form part of the factual context and may make understanding relevant information more important. They are not separate components of the information, however, and the Court of Protection must not allow a desire to protect others to drive a finding of incapacity or assume the criminal justice system’s role. Ground 3 was nevertheless rejected because the judge had expressly recognised and avoided the protection imperative.

1. Court of Appeal (Civil Division) — Appeal allowed in part under [2024] EWCA Civ 1462. Grounds 1 and 2 succeeded; ground 3 was rejected. The declaration was set aside, replaced by an interim declaration, and the case was remitted to Theis J.
2. Court of Protection — HH Judge Burrows declared on 6 June 2024 that ZX lacked capacity to engage in sexual relations and made related care, deprivation of liberty and case management orders.