Capacity to Engage in Sexual Relations: navigating the age of consent, previous convictions and the functional test in the MCA

This article is written by Julia Jones, Callum Scott, and Shivani Maini.

Content warning: this article contains information and descriptions related to a sexual offence, and a person’s ability consent to sexual activity.

Those involved in commissioning, providing, or regulating services for adults with care and support needs will be acutely aware of the need to ensure that a service user is appropriately safeguarded, especially when it comes to questions of their capacity to make decision about engaging in sexual relations. At the same time, there is a need to ensure that any restrictions on a person’s liberty are lawful, proportionate, and in their best interests. The recently reported decision in Nottinghamshire County Council v LM & Anor [2026] EWCOP 38 (T2) addresses some of the nuanced factors that are to be considered by those asked to assess or determine a person’s capacity to engage in sexual relations.

Since the UK Supreme Court handed down its then-landmark judgment in A Local Authority v JB (by his litigation friend, the Official Solicitor) [2021] UKSC 52, for a person to have capacity to make a decision to engage in sexual relations, they must be able to understand that:

• The other person must have the ability to consent;

• The other person must in fact consent; and

• Consent must exist throughout the sexual activity and can be withdrawn.

In the recently reported case of Nottinghamshire County Council v LM & Anor [2026] EWCOP 38 (T2), His Honour Judge Rogers (sitting in retirement) considered through the lens of JB:

1. P's understanding of the age of consent;

2. Sexual drive and the interrelationship with the Mental Capacity Act 2005 (MCA 2005) ‘functional test’; and

3. What relevance, if any, a previous conviction for a sexual offence has on an assessment of a person's capacity to engage in sex.

There are a number of key takeaways from this case which it is helpful for professionals carrying out capacity assessments in this difficult area to consider::

• Practitioners should recognise the distinction between responses in the context of clinical interviews/assessments, and P’s responses in dynamic real-life situations. Merely providing accurate basic answers in a controlled environment is not the same as demonstrating real understanding.

• It may be a profound step to find incapacity on the basis of a singular issue taken in isolation, but singular issues (e.g. a person’s lack of knowledge of forms of contraception) do still form an important element of the broader picture (continuing the above example – when assessing a person’s capacity to make decisions to engage in sexual relations). They must not be glossed over.

• It is vital to consider previous sexual offending and the insight this can provide.

• In the decision-specific analysis of consent, being able to accurately assess age and judge whether a potential partner is above the age of consent is crucial.

LM: A brief summary of proceedings

These proceedings concern LM, a middle-aged man with a complex personal history and longstanding diagnosis of moderate intellectual disability. LM was convicted of rape in 2009 and was sentenced to a hospital order with restrictions under sections 37 and 41 of the Mental Health Act. LM was also placed on the sex offenders register.

LM is the first respondent, represented by his litigation friend, the Official Solicitor.

These proceedings were initiated by the local authority principally due to concerns regarding LM’s online activity and what was seen to be an increasingly dysfunctional approach to relationships. An independent expert was instructed to provide the Court with an assessment of LM’s capacity in respect of a number of domains. Whilst the parties agreed with the expert’s assessment of capacity in many domains, there was a dispute as to their findings in two decision making areas.

The two contentious domains that the LM judgment deals with are:

1. P’s capacity to engage in sexual relations; and

2. P’s capacity to make decisions regarding the sharing of information in respect of sexual offences.

The public bodies submitted that LM lacks capacity in these domains, whilst the Official Solicitor contended that the presumption of capacity in each domain had not been displaced, and accordingly LM has capacity.

In his judgment, HHJ Rogers emphasised some of the salient principles outlined by the Supreme Court in JB, namely that:

• Whilst the question of P’s capacity, or otherwise, is decision-specific, particularly in relation to sexual relations, it is ordinarily non-specific to a particular person (i.e. a bespoke decision is not required in relation to every potential sexual partner as this would be impractical and intrusive).

• For the purposes of assessing P’s ability under s.3(1)(c) MCA 2005 to use or weigh information relevant to the decision, P (a potentially incapacitous person) is not required to undertake a more refined analysis than wholly capacitous individuals

• Understanding of the necessity of consent is sufficient – the bar should not be set too high. If P is able to understand, retain, use/weigh information that it is necessary for others to be able to consent, and to consent in fact to sexual relations with P, then the court need not enquire into whether P has the ability to understand or envisage the ramifications of initiating or continuing sexual relations without consent.

P's understanding of the age of consent

The public bodies submitted that LM is unable to understand the matter of the age of consent theoretically. However, perhaps more importantly, in the moment, he would be significantly impaired due to his difficulties interacting with others and inability to identify clues relating to the age of a prospective partner.

The Official Solicitor asserted that LM’s acknowledged difficulty in the assessment of age should not enter the equation. She argued that this is merely an inability to assess chronological age in terms of actual numbers, given his lack of numeracy, and LM has a sufficient level of conceptual understanding in all the relevant aspects of consent.

HHJ Rogers accepted that this element would only come into play in certain circumstances. Notwithstanding this, he held that LM is unable to accurately assess age in the general sense, meaning this goes beyond a mere problem with numeracy.

HHJ Rogers also noted the further difficulties caused by LM’s inability to recognise behavioural cues which might indicate, for example, that an apparently mature looking teenager was in fact much younger. In the decision-specific analysis of consent, being able to judge whether a potential partner is above the age of consent is, in HHJ Roger’s view, a crucial ingredient.

Interestingly, HHJ Rogers recognised the difficulties that would have arisen as to the proper approach, had the entire issue come down to the age of consent. What would be the position if the potential sexual partner was obviously an adult? Would it be permissible to carve out a class or cohort of people in respect of whom it might be argued that LM had capacity, whilst at the same time finding he lacked capacity where the age of consent was very much in play because of the actual or perceived age of the partner? Whilst this was not a decision that had to be reached in this case, it is foreseeable that in the future a case will explore whether this approach of capacity for a “cohort” of people could be lawful.

The functional test in the MCA

Another central question in this case was the relationship between sexual drive and the functional test set out in s.3 MCA 2005.

The independent expert’s analysis was that LM’s intense sexual urges arise not from any intellectual deficit, but from his innate character, perhaps affected by his earlier life experiences and trauma. As such, their conclusion was that any perceived difficulties in the moment are attributable to his innate urges, and not his intellectual deficit. On this basis, it was said that the causal nexus would not be established.

As confirmed in JB, the correct sequence of analysis is to consider the functional element first (whether P can understand, retain, use/weigh relevant information and communicate their decision). Thereafter, if the inability to make a relevant decision is established, the diagnostic element is considered. Finally, the clear causative nexus must be established before a finding of incapacity can be made. The Judge found in LM that just because a particular outcome in a real-life situation may in the end be determined by an overwhelming need for sexual gratification (driven by personality/early life experiences and not by an intellectual deficit), the first stage of the test cannot be dispensed with. To do so would run directly counter to the approach dictated by JB.

What relevance, if any, a previous conviction for a sexual offence has on an assessment of a person's capacity to engage in sex

A feature of this case was LM’s prior conviction for rape. It was noted that further information around the circumstances surrounding LM’s index offence as contextual information would be helpful. However, HJ Rogers noted that in a strict criminal law sense, his plea of guilty must mean that the Crown Court was satisfied as to his fitness to plead and that he had the mens rea at the time of the offence. In other words, he had processed the issue of consent or lack of it.

Conclusion

Whist agreeing with the Independent Expert that LM’s sexual drive is not attributable to his intellectual deficit, where HHJ Rogers differed from the expert’s conclusion was in respect of whether or not the essential casual nexus is established. HHJ Rogers noted that the relevant nexus is not with the sexual drive, and therefore the overriding feelings in the moment, but in relation to LM’s inability to negotiate the elements of consent. HHJ Rogers found that the evidence demonstrates that this inability is plainly and directly because of LM’s intellectual deficit.

This case highlights that capacity assessments must consider the overall picture, including specific deficits that may seem limited when viewed in isolation. Practitioners should look beyond a person's ability to give correct answers in a formal assessment and consider whether they can apply that understanding in real-life situations. The case also emphasises that, when assessing capacity to consent to sexual relations, it is essential to be able to assess age accurately and recognise whether a potential partner is above the age of consent.

How we can help

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If you wish to discuss the issues within this article and how we might be able to support your teams in the areas of mental capacity and mental health law, please contact Julia Jones, Partner, or Callum Scott, Solicitor.

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