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(Court of Protection, Baker J, 31 July 2013)
The 24-year-old man was diagnosed with mild learning difficulties, atypical autism and hyperactivity disorder (ADHD). During his teenage years there had been reports of him and his brother engaging in sexually inappropriate behaviour. In recent years he had formed a relationship with a man who he claimed sexually assaulted him but initially continued to live with him. He was now placed in a residential unit which offered supportive accommodation for people with learning disabilities.
The local authority applied to the Court of Protection for declarations as to capacity to consent to sexual relations, to litigate, to decide where to live to decide who he could have contact with and make decisions as to his care. The court directed that it would be in the man's best interests to undertake a course on sexual education to facilitate his capacity to consent to sexual relations. Permission was granted to instruct an independent sexual health specialist to report on how much knowledge a person should possess to be deemed to have capacity to consent to sexual relations and where the man lay on that spectrum.
The sexual health specialist concluded that the man had a rudimentary knowledge of the mechanics and risks of sexual intercourse including of the health risks following his participation in the sexual education course. During the course of proceedings an expert psychiatrist prepared three reports each confirming his opinion that the man lacked capacity in all four areas under consideration including to consent to sexual relations.
In determining the issue of capacity to consent to sexual relations, Baker J adopted the approach of Munby J in Local Authority X v MM  EWHC 2003 (Fam), that capacity to consent to sexual relations was act specific not person specific. He further concluded that in cases where it was clearly established that the person was homosexual it was ordinarily unnecessary to establish that the person had an understanding or awareness that sexual activity between a man and a woman may result in pregnancy.
At present it was unnecessary to decide the question of whether the man had capacity to determine his place of residence as he was presently settled at the residential care home. In relation to the issue capacity to consent to sexual relations, the psychiatrist had fallen into error in stipulating the man needed to be able to weigh relevant information involving a complex analysis of the risks and benefits. The weighing of information should be a relatively straight forward decision balancing the risks if ill health with pleasure, sexual and emotional brought by intimacy. Following the judge's conversation with the man in court he found he did have capacity to consent to and engage in sexual relations. That capacity had been significantly helped by the sexual education course.
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