ABSTRACT
The practical consequences of a declaration that a person lacks the relevant capacity can be widespread. For example, where a person lacks capacity to enter into sexual relations, the local authority may have to undertake very close supervision of the individual to ensure that the opportunity for sexual relations is removed. The common law test for capacity to consent to sexual relations was considered in X City Council v MB, NB and MAB. Pre-Act case-law also drew parallels with the test for capacity to marry in holding that capacity to consent to sexual relations is “issue specific”, that is, it is a question directed to the nature of the activity rather than to the identity of the sexual partner. A decision that a person has the capacity to consent and engage in sexual relations may not necessarily be the end of the matter.
