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The purpose of this paper is to outline the current state of the Court of Protection case law on capacity to consent to sexual relations and identifies a number of difficulties with the present position.

This paper reviews and summarises the current case law.

This paper identifies problems arising with the court’s approach to assessing capacity to consent to sexual relations, in particular the problems caused by treating decisions about sexual relations as generic, but decisions about contact with other people as specific.

This paper is a comprehensive summary of the current state of the application of the Mental Capacity Act 2005 in this sensitive area.

This paper aims to review recent cases in the Court of Protection on the issue of article 8 ECHR right to respect for family life and whether it requires a starting point that it is in an incapacitated adult's best interests to be cared from at home. In this context, it examines the role of article 19 UN Convention on the Rights of Persons with Disabilities (UNCRPD) in the article 8 and best interests analysis carried out by the court under s.4 Mental Capacity Act 2005.

The article examines the recent cases of K v. A Local Authority, FM and GM v. A Health Board and recent cases on the status of the UNCRPD in English Law to explore whether the UK's obligations under that convention require there to be a starting point that incapacitated adults should be cared for at home.

The Court of Protection has made it clear that talking in terms of presumptions is unhelpful when it comes to the s.4 MCA 2005 checklist. The broad terms of s.4 require that all relevant circumstances are taken into account which would include any potential infringement of article 8 ECHR.

The article identifies an argument that could be used by campaigners and practitioners who advocate for the right for disabled persons to be cared for at home, through an analysis of recent cases. It notes the argument's limitations with respect to incapacitated adults and the application of s.4 Mental Capacity Act 2005.

The purpose of this paper – written by a practising barrister specialising in the Mental Capacity Act 2005 – is to survey law and practice in England and Wales with a view to sketch out a preliminary answer as to whether it can be said there is, in fact, any legally defensible concept of mental capacity.

Review of case-law in England and Wales and relevant domestic and international law, in particular the Mental Capacity Act 2005 and the Convention on the Rights of Persons with Disabilities (“CRPD”).

It is right, and inescapable, to say that mental capacity is in the eye of the beholder, and will remain so even if we seek to recast our legislative provisions. Rather – and perhaps ironically – the conclusion set out above means that we need to look less at the person being assessed, and more at the person doing the assessing. We also need to further look at the process of assessment so as to ensure that those who are required to carry it out are self-aware and acutely alive to the values and pre-conceptions that they may be bringing to the situation.

It seems to me that it is right, and inescapable, to say that mental capacity is in the eye of the beholder, and will remain so even if we seek to recast our legislative provisions. Absent major developments in neuroscience, it will inescapably remain a concept which requires judgments based on interactions between the assessor and the assessed. But that is not thereby to say that it is an irremediably relative and flawed concept upon which we cannot place any weight. Rather the conclusion set out above means that we need to look less at the person being assessed, and more at the person doing the assessing. We also need further to look at the process of assessment so as to ensure that those who are required to carry it out are self-aware and acutely alive to the values and pre-conceptions that they may be bringing to the situation.

This paper serves as a reflection on the best part of a decade spent grappling with the MCA 2005 in and out of the court room, a decade increasingly informed by and challenged by the requirements of the CRPD.