Capacity to consent?

• The capacity to consent to a sexual relationship requires an understanding that the proposed sexual partner must also be able to consent to sex and must consent before and throughout the sexual activity.

‘Nobody,’ asserted Margaret Atwood in The Handmaid’s Tale, ‘dies from lack of sex. It’s lack of love we die from’. That may well be so. But for many people, sexual engagement is a significant way of expressing sexual love, particularly with a long-term partner. For others, however, sex is, or feels like, a pressing human need. And love isn’t necessarily part of the equation.

But what of those with, as the Supreme Court recently put it, ‘an impairment of, or a disturbance in the functioning of, the mind or brain which potentially renders them unable to make a decision for themselves concerning sexual relations’? Bearing in mind (among other things) the crucial importance of consent in sexual activity (see, for instance,