Capabilities, Capacity and Consent: Sexual Intimacy in the Court of Protection

This article uses original data from research at the Court of Protection to explore capacity to consent to sex in practice. It argues that the approach under the Mental Capacity Act 2005 fails to place appropriate focus on consent as central to understanding sexual capacity. The capabilities approach to justice is then used to demonstrate the limitations of this approach to capacity to consent to sex, and to argue that the protective focus of the legal test would be better centred on the social risks resulting from non-consensual sex and exploitation. Finally, the paper argues that, rather than focusing on a medicalised approach to understanding sexual intimacy, an analysis based on capabilities theory provides conceptual tools to support arguments for additional resources to help disabled people realise their rights to sexual intimacy.