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A LOCAL AUTHORITY V JB [2020] EWCA Civ 735 and A LOCAL AUTHORITY V AW [2020] EWCOP 24: RETHINKING SEXUAL CAPACITY?

Pritchard-Jones

Authors



Abstract

In A Local Authority v JB and A Local Authority v AW the Court of Appeal and Court of Protection respectively had to consider questions regarding decision making about sexual relationships. This case commentary suggests that both decisions are to be welcomed in many ways, not least in the primacy they give to the role of consent within sexual relationships. However, working through their implications also reveals a number of perplexing legal and practical binds that cannot easily be overcome, and that in fact stem from the way that the Mental Capacity Act 2005 itself works. In light of this, the commentary concludes by suggesting that it is likely that there will be continued dissatisfaction with this area of law, and hints that the time may have come to rethink sexual capacity.

Acceptance Date Jul 24, 2020
Publication Date Sep 17, 2020
Publicly Available Date Mar 29, 2024
Journal Medical Law Review
Print ISSN 0967-0742
Publisher Oxford University Press
Pages 143-156
DOI https://doi.org/10.1093/medlaw/fwaa028
Keywords best interests, capacity, mental capacity, Mental Capacity Act 2005, safeguarding, sexual relationships
Publisher URL https://academic.oup.com/medlaw/advance-article/doi/10.1093/medlaw/fwaa028/5907555