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21 January 2022 / Nicholas Dobson
Issue: 7963 / Categories: Features , Public , Mental health
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Capacity to consent?

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Nicholas Dobson analyses a key Supreme Court decision on capacity to consent to sexual relations
  • 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, ss 1 to 4 and s 73 et seq of the

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NEWS
Talk of a reserved ‘Welsh seat’ on the Supreme Court is misplaced. In NLJ this week, Professor Graham Zellick KC explains that the Constitutional Reform Act treats ‘England and Wales’ as one jurisdiction, with no statutory Welsh slot
The government’s plan to curb jury trials has sparked ‘jury furore’. Writing in NLJ this week, David Locke, partner at Hill Dickinson, says the rationale is ‘grossly inadequate’
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After Woodcock confirmed no general duty to warn, debate turns to the criminal law. Writing in NLJ this week, Charles Davey of The Barrister Group urges revival of misprision or a modern equivalent
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