Commentary on Sections Part 3 – Mentally Disordered Persons Section 17 – Capacity to consent
51.This section deals with the capacity of those with a mental disorder to consent to sexual activity. Subsection (1) provides that it relates to the offences in sections 1 to 9, where lack of consent is an essential element.
52.Subsection (2) states that a mentally disordered person is incapable of consenting to conduct (i.e. any conduct which falls within sections 1 to 9) where, by reason of the mental disorder, he or she is unable to do any of the things listed in sub-paragraphs (a) to (c). This test for capacity mirrors the one set out in section 311(4) of the Mental Health (Care and Treatment) (Scotland) Act 2003.