6. Capacity, consent and coercion

Mental Capacity Act 2005, s 1 — Capacity is presumed; a person is not to be treated as unable to decide without all practicable support, or merely because a decision appears unwise. Official source

Capacity and consent are distinct. A person may have capacity yet submit because of threats, dependency, deception or abuse of power. Conversely, disability, distress, silence, fatigue or unconventional movement does not establish incapacity. Decision-specific, time-specific assessment and communication support are required.

Consent is also act-specific and renewable. Co-residence is not consent to provide intimate care; agreement to one task is not agreement to an indefinite rota; and emergency rescue is not proof of future willingness. For the care recipient, agreement must allow explanation, choice, pause and withdrawal. For the carer, past performance under crisis conditions must not be mistaken for freely chosen availability.

6.1 Care, intimacy and sexual conduct

Intimate personal care is not inherently sexual. Where sexual activity is demanded, obtained through threat, or exchanged under exploitation for essential care, criminal and safeguarding questions arise. The exact offence depends on the act, absence of consent, the accused person’s reasonable belief, capacity issues and evidence. It is unsafe to assign a final offence label without specialist advice and investigation.

Purpose and context matter. Necessary intimate care carried out with valid consent and professional safeguards is not converted into a sexual offence by anatomy alone; equally, a care label cannot excuse touching without lawful consent or proper purpose. Records should identify the task, explanation, alternatives, person performing it, consent and withdrawal signals, distress and any injury.