Conclusion
Published online by Cambridge University Press: 03 January 2025
Summary
As shown throughout this edited collection, not only has the law around capacity, consent and sexual relationships recently undergone shifts in the form of the Supreme Court case of A Local Authority v JB, but it is an area of increasing importance for professionals and practitioners working in areas such as social work, health, or supporting victims of sexual abuse. The aim of this collection has not been to resolve any of the legal or practical issues that these authors confront, but to open – or in some cases, reopen – some of the existing discussions and debates on mental capacity and sex, as well as offering new perspectives on them. In doing so, this collection has shown that such conversations and debates must not focus solely on the doctrinal questions which have historically tended to preoccupy lawyers but must also consider the challenges and opportunities the legal framework poses for disabled adults, as well as professionals working in health, social care and sectors beyond.
It is undoubtedly the case that A Local Authority v JB (JB), as well as many of the other decisions from the lower courts outlined in the Introduction and throughout the chapters, have precipitated a renewed focus on mental capacity and sex, often driven by legally and factually complex cases where there may be concerns about sexual abuse. The clarification as to what is considered relevant information under the Mental Capacity Act 2005 offered by the Supreme Court in JB, as well as the relationship between the civil and criminal law frameworks, is – in many ways – to be welcomed. This is not least because of the historic ‘spasmodic trail’ – to use Sandland's words in Chapter 1 – of predominantly criminal case law that governed this area prior to the introduction of the Mental Capacity Act 2005 (MCA). Such a spasmodic trail likely reflected society's unwillingness to countenance the idea that disabled adults might have sex lives, and that these sex lives might – moreover – be genuinely consensual and therefore not criminal. However, the earlier chapters in this volume have sought to unpack some of the unresolved questions that JB leaves, and to demonstrate the extent to which the decision of the Supreme Court may leave more ambiguity than it has resolved.
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- Mental Capacity Law, Sexual Relationships, and Intimacy , pp. 187 - 195Publisher: Bristol University PressPrint publication year: 2024