Can Someone Have Capacity To Engage In Sexual Relations And Still Pose Risks To Others?

Mental capacity law is often discussed in the context of protecting vulnerable individuals from harm. However, some of the most difficult cases arise when a person who has capacity to engage in sexual relations may themselves pose a serious risk to others.

This creates a complex legal and ethical challenge.

The Court of Protection must balance:

• individual autonomy 
• safeguarding responsibilities 
• public protection 
• human rights 
• the limits of its own jurisdiction 

As Court of Protection specialists Holly Miéville-Hawkins and Sophia Withers discussed that the legal framework does not always provide straightforward answers where a person:

• has capacity to engage in sexual relations 
• but may behave in sexually harmful or predatory ways 

In practice, these situations often expose a gap between mental capacity law, safeguarding systems, and the criminal justice process.

Capacity to engage in sexual relations does not remove safeguarding concerns

One of the most important legal principles in this area is that having capacity to engage in sexual relations does not automatically mean a person poses no risk.

A person may fully understand:

• the nature of sexual activity 
• consent 
• sexually transmitted infections 
• pregnancy risks 
• the ability to withdraw consent 

And therefore, satisfy the legal test for sexual capacity.

However, they may still:

• behave inappropriately towards others 
• fail to respect boundaries in practice 
• exhibit sexually disinhibited behaviour 
• engage in predatory conduct 
• commit sexual offences 

The courts have repeatedly acknowledged this difficult distinction.

As discussed in the interview, the Court of Protection has recognised that a person may have capacity to consent to sex while still potentially being a sex offender.

This distinction can be deeply uncomfortable for professionals, families, and care providers attempting to manage risk in practice.

Why the Court of Protection is reluctant to intervene

The Court of Protection’s primary role is to determine whether a person has capacity and whether a best interests decision is required. It is not designed to function as a preventative public protection court.

Sophia Withers referred to judicial comments in the case of Re PN (Capacity: Sexual Relations and Disclosure) [2023] EWCOP 44), where the court made clear that policing sexual risk to others is generally not the function of the Court of Protection and these concerns are usually matters for the criminal justice system. This reflects an important legal boundary. 

The Court of Protection focuses on:

However, this division creates practical difficulties in real-world safeguarding situations.

The problem with relying on the criminal justice system

One of the major concerns highlighted in the discussion is that the criminal justice system is largely reactive rather than preventative.

In practice:

• police intervention often depends on an offence being committed 
• safeguarding concerns alone may not trigger criminal sanctions 
• convictions may be difficult to secure 

This creates significant risks, particularly in care environments involving vulnerable adults.

For example, where:

• a vulnerable resident may behave inappropriately towards another resident 
• both individuals may have communication difficulties 
• evidence may be limited 
• victims may struggle to participate in criminal proceedings 

As Sophia Withers explained, the likelihood of conviction can become significantly reduced in these situations.

That can leave professionals managing substantial safeguarding concerns without clear legal mechanisms for long-term intervention.

The role of safeguarding and care planning

Because the Court of Protection is often reluctant to impose preventative restrictions solely to protect others, responsibility frequently shifts to the local authorities, safeguarding teams, care and healthcare professionals.

• In practice, risk management often depends on detailed care planning.

Safeguarding measures may include:

The goal is often twofold:

• protecting potential victims 
• protecting the individual themselves from criminal consequences 

These arrangements can become highly restrictive and may raise wider legal issues concerning deprivation of liberty, proportionality, and human rights.

Cases involving restrictive safeguarding arrangements may overlap with broader health and welfare authorisation issues within the Court of Protection framework.

Why these cases are particularly difficult in care settings

Some of the most legally and ethically difficult situations arise in:

• supported living settings 
• residential care homes 
• hospitals 
• specialist placements 

This is because:

• multiple vulnerable individuals may live together 
• communication barriers may exist 
• safeguarding risks can escalate quickly 
• both the alleged perpetrator and potential victims may require protection 

Professionals are often forced to balance competing rights and risks.

Common tensions include:

• autonomy versus restriction 
• safeguarding versus overprotection 
• privacy versus supervision 
• rehabilitation versus risk management 

These situations rarely have straightforward solutions.

What most people do not realise about these cases

Many people assume that if someone poses sexual risks, the Court of Protection can simply remove their freedoms or prohibit relationships.

In reality, the legal position is far more limited.

If a person has capacity, then:

• they retain the right to autonomy
• restrictive interventions must be proportionate 
• professionals must avoid unlawful deprivation of liberty 
• the Court of Protection cannot impose criminal-style preventative controls 

This can leave safeguarding professionals operating within extremely difficult legal boundaries.

The overlap between executive functioning and sexual risk

An increasingly important issue in modern Court of Protection cases is executive functioning.

This is where some individuals may understand concepts such as consent conceptually and articulate the legal rules correctly but struggle to apply that understanding in real-life situations.

This may arise in cases involving:

• acquired brain injuries 
• autism 
• learning disabilities 
• frontal lobe injuries 
• impulsivity disorders 
• certain mental health conditions 

The law in this area remains developing and fact-sensitive.

Professionals often struggle with the distinction between understanding the rules and being able to follow them consistently in practice.

Common mistakes professionals and families make

Assuming capacity eliminates safeguarding duties

Capacity does not remove the need for risk management.

Treating the Court of Protection as a public protection court

The court’s jurisdiction is limited.

Over-relying on criminal justice intervention

The criminal process is often reactive and evidentially difficult.

Ignoring proportionality

Restrictive measures must remain lawful and proportionate.

When professional advice is essential

Specialist legal advice is often necessary where:

• safeguarding concerns involve sexual behaviour 
• restrictive care plans are proposed 
• deprivation of liberty issues arise 
• there are risks to other vulnerable adults 
• professionals disagree about risk management 
• criminal and capacity issues overlap 

These cases frequently involve complex interactions between:

• mental capacity law 
• safeguarding duties 
• criminal law 
• human rights 
• care regulation 
• deprivation of liberty safeguards 

In contested matters, specialist litigation support and expert witness services may assist with capacity evidence, behavioural analysis, and safeguarding recommendations.

FAQ

Can someone have capacity to engage in sexual relations and still be a risk to others?

Yes. Capacity and risk are separate legal issues.

Can the Court of Protection prevent someone committing sexual offences?

Generally, no. The court is reluctant to act as a preventative public protection body.

Who manages safeguarding risks in these situations?

Local authorities, care providers, safeguarding teams, and sometimes the criminal justice system.

Why are convictions difficult in care settings?

Both the alleged perpetrator and potential victims may be vulnerable, which can create evidential and communication difficulties.

Can restrictive care plans be used?

Yes, but restrictions must remain proportionate, lawful, and compliant with human rights obligations.

Conclusion

Cases involving sexual capacity and risk to others expose some of the most difficult tensions within modern mental capacity law.

The Court of Protection must balance rights such as autonomy with proportionality.:

• Yet the legal framework does not always provide clear preventative mechanisms where a person has capacity but poses serious safeguarding risks.

As a result, much of the responsibility falls on local authorities, care providers, and safeguarding professionals to manage risk through careful care planning and multi-agency intervention. These cases remain highly fact-sensitive, ethically complex, and legally challenging for everyone involved.