Capacity to consent to sexual relations

Background

PS is a 79-year-old lady with severe memory impairment. She has a diagnosis of alcohol related impairment and associated alcohol misuse, and amnesiac syndrome related to alcohol use. PS was married for many years to one LS and had been friends with WP since she was a teenager. Upon her husband’s death, her friendship with WP developed into a relationship, and this relationship had lasted for almost two decades.

The judge acknowledged that despite PS now being resident in a care home, both PS and WP would like their relationship to continue, and that there was a sexual component to the relationship.

The judge noted that there appear to have been issues with alcohol use during the relationship of PS and WP, and that this may have been alcohol overuse. There were also concerns about neglect by WS because he was unable to look after PS, not because he was deliberately neglecting her. Additionally, there were some safeguarding concerns investigated by the Local Authority, one of which arose when WP and PS were found to be locked together in her bedroom. A "protection plan" was subsequently put into place (although there appear to have been two breaches of this following the plan being agreed).

The law

1. Section 2 Mental Capacity Act 2005 addresses the "diagnostic test" for capacity and assesses whether a person lacks capacity because of an impairment of, or a disturbance in, the functioning of the mind or brain.
2. Section 3 Mental Capacity Act 2005 addresses the "functional test" and assesses whether the person can understand the information relevant to the decision, retain that information, use or weigh it, and communicate information relevant to that decision.
3. Section 4 of the Mental Capacity Act deals with best interests. In the case of most areas of incapacity, a decision can be made on behalf of P in P’s best interests. However, in the case of sexual relations, section 27(1)(a) Mental Capacity Act intervenes, which prohibits a best interest decision being made on P’s behalf to enable P to consent to sexual relations.

The judge felt that the critical issue in this case may be that if PS must understand that she can say yes or no to the act of sexual relations. She must also be able to understand that she can withdraw her consent at any time during the act.

The issues

Using the framework of the Mental Capacity Act 2005, the court had been asked to decide whether PS had capacity to consent to sexual relations, in the context of her long-standing relationship with WP.  

The other issues considered by the court were:

• Decisions regarding residence.
• Decisions regarding the care she receives.
• The decision to consume alcohol.
• Decisions about contact with others.

The court heard from professional advocates Neil Allen and Dr Barbara Green, as well as WP, DT (one of PS’s property and affairs attorneys), and RS (who is PS’s son).

The issue of contact was made more complex by PS’s inability to assess risk from contact, and also by her tendency to misidentify people, including mistaking other men for WP. In a report by Dr Catriona McIntosh, a consultant neuropsychologist, she found that PS lacks capacity for contact with males in general and not specifically with her long-term partner.

The court was satisfied that risk of pregnancy, and risk of contracting a sexually transmitted infection, was not a bar to PS’s capacity in this case. In addition, the court was satisfied that PS is able to understand the mechanics of the sexual act and the fact that the other person must have the ability to consent to the sexual activity (and must consent before and throughout the sexual activity).

The issue arose over the question of whether PS understood that if she changed her mind during sexual relations, the sexual relations would have to cease. The judge noted that it was hugely important in this case to emphasise that the sexual activity here is between "established and loving partners" and "WP can be trusted to ensure that he behaves appropriately within the context of their relationship".

The decision

In an interesting decision, the judge found that PS lacks the capacity to make all decisions with the exception of engaging in sexual relations.

The judge found that the risk identified in terms of contact between PS and WP, is the risk that WP will not follow a care plan put in place to keep PS safe. However, the judge added that there was no reason (as matters stand) why WP and PS should be denied contact with each other.

The judge also noted that the presumption of capacity will only exist with a proper protective care plan that enables PS to enjoy sexual activity with WP if they both want to. If such a plan, taking into account PS’s wider best interests in care and residence, can be managed and effected.

Comment

Mental capacity is a difficult and complicated concept, and it is important to remember that the court must avoid simply making the easiest decision to prevent PS and others in a similar situation from acting as they wish because the risks are complicated to manage.

If you need assistance or advice about mental capacity, please contact our expert team.