The Court of Appeal has just handed down a very important judgment on the nature of the capacity to consent to sex. In IM v LM it considered issues which have been debated back and forth between different judges in the criminal and civil courts since before the Mental Capacity Act 2005 (MCA) came into force. Two of the key issues which different judges seemed to disagree over were:
- Is the 'test' of capacity to consent to sex 'issue specific' (ie. is the test just about sex in general) or 'person and situation specific' (ie. are there issues around sex with this particular person, at this place and time, as well)?
- Does the test of capacity to consent to sex involve merely a need to 'understand' the information, or also an ability to 'use and weigh' the information?