Page 8 - Community Living Issue 31-3

living a life: sex, marriage and the law
married – but without the

capacity to consent to sex?

A man with Down’s syndrome and his wife were awarded damages after he
was assessed as lacking the capacity to consent to sex and they were denied
conjugal relations. Belinda schwehr reports on the case and its implications

married man with down’s The judge noted that CH was If that had been the case for CH, this
syndrome, ch, was awarded psychologically and emotionally resilient would have shown the relevance of the
a £10,000 after he and his wife, WH, and did not seem to have suffered Care Act section 19 power as opposed to
were deprived of conjugal relations for long-term consequences. the duty to provide, given the overarching
more than a year because he allegedly However, it was accepted that the duty to promote wellbeing and the
lacked the capacity to consent. impact must have been profound at obvious intrusion generated by the
WH was effectively warned by a local the time, not only over the loss of sexual council’s intervention.
authority safeguarding team she could relations but also because he would Public expenditure, in a social care
face legal action if she continued to have been unable to understand why this context, to be lawful at all, must come
initiate sex with him; the type of action was happening. within the wording of the Care Act.
was not set out in the legal report so may Furthermore, his wife, understandably Relationship support for people with
have been civil or criminal. Following a and foreseeably, withdrew to another impairments is well established, in the
separate claim, she was also awarded an bedroom and withheld much physical form of chaperoning and helping a person
undisclosed sum. affection. into a social life, as well as part of the
medical professional must be satisfied the “ Society’s concern to recreation, and the management of
The case, CH v A Metropolitan Council,
facilitation of leisure activities and
followed an assessment triggered by
the couple’s seeking fertility treatment.
relationships.
The new law is less prescriptive than
For such treatment to be lawful, any
vulnerable may lead
want to innovate. Under the Care Act, the
parties have consented to sex. A protect those who are the old law, which is good for people who
psychologist said that the man did not to surprising, perhaps word “facilities” in section 8 is clearly
have the mental capacity to consent to even unforeseen wide enough to cover a sex education
sex and therefore, presumably, to the course. It is legal to assess a person as
desired treatment. consequences being unable to manage a relationship,
That must have been distressing for the ” and for the impact of this to be significant
wife, but the psychologist recommended enough to create a duty to meet need, via
that a course of sex education ought to Before the hearing, the local authority the cost of a course, as long as the course
enable the man to acquire the capacity. offered to make a formal apology to CH is educational and upskilling. If there is
The concerns were formalised in early for the delay and agreed to pay him not enough impact to create a duty,
2015, but the course began only in mid £10,000 in damages, his pre-action costs, councils have a power to act.
2016. It was completed within the plus £21,600 in costs from the previous even though local authorities are the
expected time; the man had to go back Court of Protection proceedings. This decision makers on how to meet need, it
for further input on health-related issues offer was approved. is worth remembering that direct
but he eventually “passed”. payments provide a mechanism for private
Solicitors then issued a human rights assessment, care planning and commissioning of anything that councils
claim within the Court of Protection commissioning points are too embarrassed to commission or
proceedings. The case report does not indicate whether quality assure when they fear prurient
The judge (Hedley J) pointed out that the local authority was already providing interest or criticism from the tabloid press
article 8 of the Human Rights Act 1998 services to CH. I have been assured that – so long as the service is legal.
– the right to respect for one’s private and the problem was not that he was found
family life – was a qualified right that ineligible or denied the funding for the safeguarding points
could be interfered with in certain course, but that the council simply The judge said:
circumstances, including when in failed to organise it despite much
accordance with the law and for the correspondence and having accepted that “Society’s entirely proper concern to
prevention of crime. it should. protect those who are particularly
This meant that some of the “incursions Any council may have said to a person vulnerable may lead to surprising,
on the conjugal relations of CH and WH” with this high degree of daily living skills perhaps even unforeseen
were justifiable. It was the delay in doing that he was ineligible for a service, consequences. Such, however, may be
anything about it that led to the because there was only one area of his life the price of protection for all … Many
successful claim for a breach of human in which he was “unable to achieve” (in would think that no couple should have
rights, compensated for in damages. this case, relationships). had to undergo this highly intrusive

8 Vol 31 No 3 | Spring 2018 community Living www.cl-initiatives.co.uk