Capabilities, capacity, and consent: sexual intimacy in the Court of Protection

Lindsey, J. and Harding, R. (2021) Capabilities, capacity, and consent: sexual intimacy in the Court of Protection. Journal of Law and Society, 48 (1). pp. 60-83. ISSN 1467-6478 doi: 10.1111/jols.12278

Abstract/Summary

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 the existing legal 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 article argues that, rather than focusing on a medicalized approach to understanding sexual intimacy, an analysis based on capabilities theory provides conceptual tools to support arguments for additional resources to help disabled people to realize their rights to sexual intimacy.

Item Type	Article
URI	https://reading-clone.eprints-hosting.org/id/eprint/111788
Identification Number/DOI	10.1111/jols.12278
Refereed	Yes
Divisions	No Reading authors. Back catalogue items Arts, Humanities and Social Science > School of Law
Publisher	Wiley-Blackwell
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