Capacity in Sexual Relations: Court of Appeal Overturns Decision in ZX Case

39 Essex Chambers barristers Victoria Butler-Cole KC and Francesca Gardner acted for a client, ZX, by his litigation friend the Official Solicitor, in a successful appeal of a decision that ZX lacked capacity to engage in sexual relations.  

The judgment makes clear that the causative nexus required by the MCA 2005 needs to be considered carefully in this difficult area, and held that the judge at first instance should have declined to proceed on the basis of an assessment conducted on an erroneous basis by the jointly-instructed independent expert psychiatrist.

This case considered the thorny issue of capacity to engage in sexual relations, an area of significant legal and ethical complexity. The judgment makes clear that the Court of Appeal is live to the need to ensure that the Court of Protection does not become an arm of the criminal justice system. The Court appeal considered a number of complex issues, including: the unintentional overlap between the criminal justice system and the Court of Protection, the very difficult and fine line that public authorities must tread when they are aware of sexual risks posed by those whom they have statutory responsibilities for; and the necessity for a clear explanation as to how precisely a person’s inability to make a decision is caused by the relevant impairment or disturbance in the functioning of the mind or brain. 

The Court of Appeal's judgment can be found: here

Victoria Butler-Cole KC and Francesca Gardner were instructed by Saoirse de Bont of Irwin Mitchell.

Victoria Butler- Cole KC and Francesca Gardner will host a webinar in the New Year to discuss this significant judgment, and its implications.