Mental Capacity Assessment for Consent to Sexual Relations

The assessment is the same rigorous process whoever instructs it. What changes is what you need to know first.

I am supporting a family member

This can be a sensitive subject to raise. Tell us why capacity is in question and what support the person needs to take part. We explain the purpose and arrangements carefully, respect their privacy and keep their own views separate from concerns expressed by other people.

I am instructing as a professional

Please identify the decision, the intended use of the report and any safeguarding or court context. We agree the assessment arrangements and relevant expertise before instruction. Any proposed restrictions or urgent protective action require their own lawful basis; booking an assessment does not supply one.

An independent social-work practice with an employed professional team and peer-reviewed reporting. Explore our mental capacity assessment services to find the right starting point.

Read how we evidence our scale on our Permanent Team, National Scale page, and how reports are governed and peer reviewed in our Professional Standards.

What is a mental capacity assessment?

A capacity assessment answers a particular question at the relevant time. We help the person take part and consider the decision they face. Under the Mental Capacity Act, any inability to decide must be caused by an impairment or disturbance of mind or brain.

The question concerns the person’s ability to decide to engage in sexual relations. It is distinct from deciding about contact, contraception, marriage or a particular medical treatment. We clarify which questions are actually being raised rather than give one answer for every aspect of an intimate relationship.

The information and support must be accessible without turning the assessment into an examination of sexual knowledge. Personal embarrassment, unfamiliar vocabulary or another person’s disapproval must not be mistaken for inability to decide.

An assessment may be requested when there is a genuine question about decision-making, a disputed earlier opinion or a need for evidence in Court of Protection proceedings. Concerns about exploitation and the person’s right to a private life both matter. Neither should predetermine the capacity conclusion.

Your report explains the question, relevant evidence, support provided and conclusion, with clear reasoning and any limitations. Court-specific requirements are agreed before instruction.

A safeguarding concern

Concerns have been raised about a relationship and the person's understanding needs to be established properly.

Restrictions are being considered

A provider or local authority is restricting contact or supervision, and that interference must be justified on evidence.

Court of Protection proceedings

The court requires evidence applying the JB formulation rather than an older or looser test.

A person is being deprived of privacy

Blanket supervision is in place and nobody has tested whether it is actually necessary.

A change in presentation

There has been a cognitive, neurological or psychiatric change affecting the person's understanding.

A previous assessment is disputed

An earlier report applied the wrong test, or reached a conclusion the evidence does not support.

The assessment addresses the decision to engage in sexual relations, following the approach explained in A Local Authority v JB [2021] UKSC 52. Relevant information includes the need for the other person to be able to consent and to agree before and throughout the activity. The following topics are explained in a way the person can understand, with the information tailored where appropriate.

The nature of the act, in broad terms

That the other person must be able to consent, and must in fact consent, before and throughout

That they themselves can say no at any point, before or during

That there is a risk of sexually transmitted infection, and that it can be reduced

That pregnancy may result, where that is relevant to the person and their circumstances

That the decision is theirs, and that it is not one anyone else can make for them

Nobody can consent to sexual relations on another adult’s behalf under the Mental Capacity Act. A finding of incapacity therefore cannot be followed by a best-interests decision authorising sex. Any protective arrangements need separate lawful consideration, while support and appropriate education may help the person develop their own understanding.

The person’s preferences and privacy deserve respect. A relationship that relatives or professionals dislike is not, for that reason, beyond the person’s capacity. We examine their ability to make the relevant decision and record the support offered, rather than judge their choices against the assessor’s own values.

A Sexual Relations capacity assessment applies the Mental Capacity Act 2005 to the specific decision. The question is whether, at the time the decision needs to be made, the person can:

A person may have capacity for some decisions but not others. Sexual Relations capacity must therefore be assessed as its own decision. Under the Mental Capacity Act, an inability to make this decision must result from an impairment of, or disturbance in, the functioning of the mind or brain. We explain that causal link using the evidence at the relevant time, after taking all practicable steps to support the person. A diagnosis or an unwise decision alone does not establish a lack of capacity.

Framework: Mental Capacity Act 2005 sections 1–3 and 27; the Code of Practice; A Local Authority v JB [2021] UKSC 52. Capacity and the presence of actual, continuing consent are different questions.

Read the supporting guidance

Understand the information relevant to the decision about Sexual Relations

Retain that information long enough to make the decision

Use or weigh that information as part of making the decision

Communicate their decision by any means

Initial enquiry and triage

Tell us the decision, who needs the report and any deadline. We discuss the person’s needs and confirm the right service before booking.

Quotation and booking

Receive a written scope, fee including applicable VAT and agreed timetable. Travel and any additional work are explained before you proceed.

Assessment appointment

The assessor meets the person in an appropriate setting, explains the relevant information clearly and provides the support they need to take part.

Report preparation and peer review

The report explains the evidence, reasoning and conclusion. A second professional reviews it before delivery. Any court-specific requirements are agreed at instruction.

Secure delivery

Receive the report securely, with its findings and any limitations clearly explained. We respond to clarification requests within the agreed scope.

We review the documents relevant to the question and explain how to share them securely. The report distinguishes records, the person’s own responses and information supplied by others.

Medical records

GP summaries, hospital letters and any information about diagnosis or treatment that bears on decision-making.

Any relationships and sex education provided

What the person has been taught and how, since capacity can often be supported rather than simply measured.

Safeguarding records

Any enquiry, protection plan or court order relevant to the person's relationships.

Previous assessments

Earlier capacity assessments, including any that applied the pre-JB formulation.

Care and support records

Care plans and daily notes, including any restrictions currently placed on the person's privacy or contact.

Accounts from people who know the person

Observations from family, carers and professionals, recorded carefully and without speculation.

A well-reasoned assessment explains how the conclusion has been reached, rather than simply stating an outcome, tied to the actual decision in issue.

The specific decision being assessed

Whether the person was given the relevant information in a way they can understand

Whether they understand the information relevant to the decision

Whether they can retain that information long enough to decide

Whether they can use or weigh the relevant information

Whether they can communicate their decision by any means

Whether any inability is because of an impairment or disturbance of the mind or brain

The support provided, the person's views, and the reasoning behind the conclusion

The assessment and fee on this page cover our standard service, which is suitable for most instructions. If your case is more complex, high-risk or potentially contested, additional evidence may help. We can advise on the appropriate scope before booking.

Explore Advanced and Enhanced assessments

£720 including VAT

Standard fee. Displayed service fees include VAT. Travel costs are confirmed separately. If your case needs additional evidence, follow the Advanced and Enhanced assessments link below to explore the scope and fees. Travel time is charged at £48 per hour including VAT (£40 excluding VAT) where applicable and is confirmed before booking.

Assessment appointment options

We arrange a face-to-face or remote assessment where suitable for the person and the decision being considered. For sexual relations decisions, the format must allow the assessor to explore the person's understanding clearly and respectfully. The appointment can usually take place at home, in a care home, in supported living, in hospital where appropriate, at a professional location or by video where this is clinically and legally suitable.

Gentle, professional assessment

The assessment is carried out calmly, with attention to communication, anxiety, fatigue and the person's preferred way of engaging. The person is not treated as a problem to be tested, but as the central decision-maker wherever possible. For sexual relations decisions, the assessor may need to explore sensitive personal information without turning the appointment into an interrogation or imposing personal values.

Decision-specific approach

The assessment focuses on whether a person can decide to engage in sexual relations, including understanding the nature of the act, consent, pregnancy and sexual health risks at a broad level. It is not a general opinion about whether the person has capacity overall. The relevant information is tailored to the actual decision, including safeguarding concerns, intimate relationships, care settings, supported living, Court of Protection proceedings, sexual vulnerability, exploitation concerns and disputes between autonomy and protection. This reduces the risk of a vague report that cannot properly assist professionals or the court.

Mental Capacity Act compliant

The assessment applies the Mental Capacity Act 2005 framework, including the presumption of capacity, practicable steps, the functional test and the need to avoid treating an unwise decision as incapacity. For this decision, the assessor considers whether any impairment or disturbance in the functioning of the mind or brain causes the person to be unable to understand, retain, use or weigh relevant information, or communicate their decision.

Relevant information for sexual relations

The assessment explores whether the person can understand the information that matters to this specific decision. For this page, that includes the sexual nature and character of the act, the fact that the other person must have capacity to consent and must consent before and throughout the activity, that the person can say yes or no and change their mind, pregnancy risk where relevant, and sexual health risks and precautions at a broad level. Relevant information must be explained in a way the person can access, and it must be specific to the real situation rather than a purely abstract question.

Written capacity report

Following the assessment, we prepare a written mental capacity report setting out the evidence, the MCA test, the decision assessed and the reasons for the opinion. The report can be prepared for families, solicitors, deputies, local authorities, safeguarding professionals or Court of Protection use depending on the instruction and the purpose of the assessment.

Safeguarding concerns about an intimate relationship

An assessment may be needed where professionals are concerned about sexual exploitation, coercion, vulnerability or whether the person understands the other person's need to consent.

Supported living, care home or community risk

Capacity may need to be assessed where a person lives in a care setting or receives support, and professionals need to balance autonomy, privacy, safeguarding and legal duties.

Court of Protection or professional welfare proceedings

A report may be required where the court or professionals need clear evidence about whether the person can make the decision to engage in sexual relations for themselves.

This is an illustrative example. It does not describe any individual client.

The value of the service lies in the assessment and the explanation behind it: the relevant expertise, a supported process, careful use of records and a written opinion that others can examine. Our role is to provide independent evidence within the agreed instruction.

For families

Know the work, cost and timetable before booking. We agree the appointment arrangements around the person’s needs and explain what the completed report will include.

For professionals

An employed professional team, with relevant expertise and a second professional reviewing the report. We agree the appropriate assessor and written output for your instruction.

Decision-specific, not generic

Focused on the exact decision in issue and the information relevant to it, not a broad opinion about capacity overall.

Court-ready reporting

Reports structured for solicitors, the Court of Protection and other professionals who need to rely on them.

Therapeutic assessment interviews

A calm, supportive conversation that helps the person engage as fully as possible.

Nationwide coverage

A permanent team covering England and Wales, in person or by video where appropriate.

Peer reviewed as standard

Every report is reviewed by a second qualified professional before it is issued.

Employed, not outsourced

A permanent full-time team, not an ad hoc panel of associates.

How quickly can a sexual relations capacity assessment be arranged?

Appointment availability depends on the location, the person’s needs and the work required. The published standard for routine reports is usually five working days from the assessment visit. We confirm the timetable for your instruction before booking; enhanced work, additional evidence and court requirements may need a different timetable.

How much does a sexual relations capacity assessment cost?

Most single-decision assessments are completed at our standard fee of £720 including VAT, with travel costs confirmed separately in writing. Fees can vary with the number of decisions, complexity and reporting requirements. If the case is complex or high-risk, we can advise whether additional evidence would help; see the Advanced and Enhanced assessments link below. Please see https://www.nelliesupports.com/prices or contact us for a written quotation for the specific instruction.

Can the assessment be completed remotely?

Sometimes. Remote assessment may be suitable where the person can engage effectively by video and the decision can be assessed safely and fairly that way. For sensitive or complex sexual relations matters, face-to-face assessment is often more appropriate, and we advise on the right format at the enquiry stage. Whichever format is used, the report applies the same decision-specific standard and is peer reviewed.

What happens if the person refuses to take part?

Please tell us if the person is reluctant or does not wish to take part. We consider whether better explanation, a different setting or other support could help. Refusal alone is not evidence of incapacity, and an assessment must not be presented as complete when the necessary evidence could not be obtained. Any authority to proceed requires separate consideration.

Does the assessment decide whether a relationship is safe?

No. A capacity opinion does not establish that a particular relationship is safe or that a person is consenting to particular activity. Safeguarding, actual consent and the lawfulness of any restrictions must be considered separately. The report can record relevant concerns without answering questions outside the instruction.

What if the assessment does not reach the conclusion we hoped for?

Our opinion follows the evidence. We explain the findings and any uncertainty, whether or not the conclusion matches the initial concern. Paying for an assessment does not buy a preferred outcome.

Mental Capacity Act 2005 explained

A plain English guide to the key MCA principles and the two-stage capacity test.

What is relevant information in a capacity assessment?

Explains why each capacity decision must be assessed using information specific to that decision.

How to prepare for a mental capacity assessment

Practical guidance on documents, context and support before an assessment appointment.

Remote versus face-to-face capacity assessments

Explains when remote assessment may be suitable and when face-to-face assessment may be preferable.

What makes a capacity report court-ready?

Explains the features of a clear, reasoned and decision-specific report.

If a different decision needs to be assessed, our team can help across the full range of mental capacity assessments.

We provide independent assessment and professional evidence. Legal advice and court applications remain with the relevant legal adviser.

Contact Nellie Supports to discuss a sexual relations capacity assessment. We will confirm the decision, the evidence needed, the likely timescale and whether a face-to-face or remote assessment is suitable.

Reports are typically delivered within 5 working days of the assessment visit.

The functional test

Impairment and causation

For more, read our guide: Mental Capacity Act 2005 explained.

The Mental Capacity Act 2005 requires that no one is treated as unable to make a decision unless all practicable steps to help them have been taken without success. That support is built into every assessment:

Plain language and real examples

Decisions are explained using the person's own circumstances and the decision actually in front of them, rather than abstract scenarios.

The right time and place

Appointments are arranged for when the person functions best, at home, in a care setting, in hospital or remotely.

A familiar person nearby

A relative, friend or carer can be close at hand where that reassures, while the assessment itself remains independent.

Communication adjustments

More time, information broken into stages, and written notes or aids where they help the person express a view.

Instruction is straightforward and the evidential standard is consistent whichever decision is being assessed:

Scope confirmed in writing

The decisions to be assessed, the fee and the timescale are confirmed in writing before instruction.

A traceable evidential line

Evidence, analysis and conclusion are set out in a structure a court, bank or public body can scrutinise.

Peer review as standard

A second qualified professional reviews every report before it leaves the practice.

Follow-up clarification

Clarification for instructing parties is included after the report is delivered.

Assessments are carried out across England and Wales, at home, in care settings, in hospital or remotely where appropriate. Travel is charged at £48 per hour including VAT (£40 excluding VAT) and confirmed before booking.

A registered professional from our permanent, employed team, which includes Social Work England and Social Care Wales registered social workers and a Chartered Psychologist (BPS). Every report is peer reviewed by a second qualified professional before delivery.

For Court of Protection deputyship applications.

Independent, decision-specific assessment of capacity to manage money, property and financial affairs.

Written by Ben Slater, Founder and Managing Director, Nellie Supports. Read our editorial policy.