Capacity to Consent to Sexual Relations: A Guide for Care Staff

Few areas of care raise as many anxious questions as sexual relationships. People with learning disabilities, dementia, acquired brain injury or mental health conditions have the same rights to a private life as anyone else, but staff also have a duty to protect people from abuse. The Mental Capacity Act 2005 and the Supreme Court decision in A Local Authority v JB [2021] UKSC 52 set the framework. This guide explains it for care staff.

It is general information, not legal advice. Where there is real doubt about a person's capacity to engage in sexual relations, involve your safeguarding lead, the local authority and, where needed, legal advisers.

Start with the presumption of capacity

The Mental Capacity Act begins from the principle that every adult has capacity unless it is shown otherwise. A person must not be treated as lacking capacity simply because their decision seems unwise. Capacity is decision-specific: someone may be able to make many decisions but not this one, and it can change over time. For the wider framework, see our guide to Mental Capacity Act and DoLS training.

In practice, this means staff should not make assumptions about the sexual capacity of people with disabilities. A concern needs a reason, such as evidence that the person does not understand what sex is, or is being pressured, groomed or exploited.

What the Supreme Court decided in JB

In A Local Authority v JB [2021] UKSC 52, the Supreme Court considered what information is relevant to the decision whether to engage in sexual relations. It confirmed that capacity is decision-specific rather than person-specific, and that the decision is best expressed as whether to engage in sexual relations, not just whether to consent to a single act.

The Court held that the relevant information includes:

• the sexual nature and character of the act
• the reasonably foreseeable health risks, such as the risk of sexually transmitted infection and, where relevant, pregnancy
• that the other person must have capacity to consent and must in fact consent, throughout the activity
• that the person can say yes or no, and that they may choose not to take part

This last point matters in practice. A person who cannot understand that a partner must consent may be unable to make this decision safely, even if they would be able to say yes for themselves.

Using the Mental Capacity Act test

Under the Act, a person lacks capacity if, because of an impairment of the mind or brain, they cannot understand relevant information, retain it, use or weigh it, or communicate their decision. Staff should:

• give information in a form the person can understand, using pictures, easy-read materials or sex education tailored to them
• choose a time and place where the person is comfortable
• involve specialists such as psychologists or speech and language therapists where needed
• record the assessment and the reasons clearly

If a person lacks capacity to engage in sexual relations, nobody else can consent for them. Decisions about support then fall under best interests, and the person's wishes still carry weight. Our guide to best interests decision-making covers this.

What care staff must not do

Care staff should never arrange or pay for sexual services. Commentary on the Court of Protection decision in a Lincolnshire case in 2019 points out that the Sexual Offences Act 2003 makes it a criminal offence to cause or incite a person to engage in sexual activity for payment, and that care providers should be cautious about facilitating paid sexual services. Seek legal advice in this area, always.

Staff should also never engage in sexual activity with a person they support. The Sexual Offences Act 2003 has specific offences relating to care workers and people with a mental disorder.

Supporting relationships safely

• Offer sex and relationships education. People often lack capacity only because nobody has explained the issues in an accessible way. Capacity can sometimes be supported to develop.
• Respect privacy. Doors, locks, personal space and confidentiality should be planned in advance, not decided on the spot.
• Look for signs of coercion. Unexplained changes in mood, secrecy about a partner, money going missing or a partner who controls the person may signal abuse. Report concerns through safeguarding. Our guide on domestic abuse awareness explains related warning signs.
• Do not rely on blanket rules. Policies banning relationships altogether can breach the person's rights.

When to escalate

Talk to your safeguarding lead if you believe the person lacks capacity and is at risk, if you see signs of abuse, or if the staff team cannot agree. The local authority may take the case to the Court of Protection when it cannot be resolved safely in any other way.

Frequently asked questions

Can someone with a learning disability have a sexual relationship?

Yes, if they have capacity to engage in sexual relations, or where they lack it and the support put in place respects their rights and keeps them safe. A diagnosis alone does not decide the question.

Can a family member consent on someone's behalf?

No. Consent to sexual activity cannot be given by someone else on behalf of a person who lacks capacity.

Does capacity depend on the partner?

The Supreme Court framed the decision as whether to engage in sexual relations generally, not whether to have sex with one named person, but it also made clear that understanding the other person's need to consent is part of the decision.

Where can teams find training?

See the CPD hub for professional development options for care and healthcare teams.

Learnsignal will update this guide as the courts decide further cases.