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

 

A married man with Down’s Syndrome, CH, was awarded £10,000 after he and his wife, WH, were deprived of conjugal relations for more than a year because he allegedly lacked the capacity to consent.

WH was effectively warned by a local authority safeguarding team she could face legal action if she continued to initiate sex with him; the type of action was not set out in the legal report so may have been civil or criminal. Following a separate claim, she was also awarded an undisclosed sum.

The case, CH v A Metropolitan Council, followed an assessment triggered by
the couple’s seeking fertility treatment. For such treatment to be lawful, any medical professional must be satisfied the parties have consented to sex. A psychologist said that the man did not have the mental capacity to consent to sex and therefore, presumably, to the desired treatment.

That must have been distressing for the wife, but the psychologist recommended that a course of sex education ought to enable the man to acquire the capacity.

The concerns were formalised in early 2015, but the course began only in mid 2016. It was completed within the expected time; the man had to go back for further input on health-related issues but he eventually “passed”.

Solicitors then issued a human rights claim within the Court of Protection proceedings.

The judge (Hedley J) pointed out that article 8 of the Human Rights Act 1998 – the right to respect for one’s private and family life – was a qualified right that could be interfered with in certain circumstances, including when in accordance with the law and for the prevention of crime.

This meant that some of the “incursions on the conjugal relations of CH and WH” were justifiable. It was the delay in doing anything about it that led to the successful claim for a breach of human rights, compensated for in damages.

The judge noted that CH was psychologically and emotionally resilient and did not seem to have suffered long-term consequences.

However, it was accepted that the impact must have been profound at
the time, not only over the loss of sexual relations but also because he would
have been unable to understand why this was happening.

Furthermore, his wife, understandably and foreseeably, withdrew to another bedroom and withheld much physical affection.

Before the hearing, the local authority offered to make a formal apology to CH for the delay and agreed to pay him £10,000 in damages, his pre-action costs, plus £21,600 in costs from the previous Court of Protection proceedings. This offer was approved.

Assessment, care planning and commissioning points

The case report does not indicate whether the local authority was already providing services to CH. I have been assured that the problem was not that he was found ineligible or denied the funding for the course, but that the council simply
failed to organise it despite much correspondence and having accepted that it should.

Any council may have said to a person with this high degree of daily living skills that he was ineligible for a service, because there was only one area of his life in which he was “unable to achieve” (in this case, relationships).

If that had been the case for CH, this would have shown the relevance of the Care Act section 19 power as opposed to the duty to provide, given the overarching duty to promote wellbeing and the obvious intrusion generated by the council’s intervention.

Public expenditure, in a social care context, to be lawful at all, must come within the wording of the Care Act. Relationship support for people with impairments is well established, in the form of chaperoning and helping a person into a social life, as well as part of the facilitation of leisure activities and recreation, and the management of relationships.

The new law is less prescriptive than the old law, which is good for people who want to innovate. Under the Care Act, the word “facilities” in section 8 is clearly wide enough to cover a sex education course. It is legal to assess a person as being unable to manage a relationship, and for the impact of this to be significant enough to create a duty to meet need, via the cost of a course, as long as the course is educational and upskilling. If there is not enough impact to create a duty, councils have a power to act.

Even though local authorities are the decision makers on how to meet need, it is worth remembering that direct payments provide a mechanism for private commissioning of anything that councils are too embarrassed to commission or quality assure when they fear prurient interest or criticism from the tabloid press – so long as the service is legal.

Safeguarding points

The judge said:

“Society’s entirely proper concern to protect those who are particularly vulnerable may lead to surprising, perhaps even unforeseen consequences. Such, however, may be the price of protection for all … Many would think that no couple should have had to undergo this highly intrusive move upon their personal privacy, yet such a move was in its essentials entirely lawful and properly motivated. As I have said, perhaps it is part of the inevitable price that must be paid to have a regime of effective safeguarding.”

The safeguarding implications of this case are:

Despite the “presumption” of capacity, the local authority’s safeguarding responsibilities were properly regarded as triggered in relation to the married couple’s assumed intimacies.

Not even Making Safeguarding Personal (Local Government Association, 2017) could have been used to prevent the council from doing as it did, because the evidence about capacity was not contradicted, which gave the council a reasonable belief that the man was subject to abuse.

Safeguarding cannot work without a lower threshold than certainty being applicable to section 42 enquiries, given the parallel operation of the presumption of capacity.

However, as the KA case showed in our last issue (Schwehr, 2017) a competent medical expert can be overruled by a judge in a capacity decision. Whether one’s level of functioning refutes the presumption of capacity is ultimately a legal judgment. An expert opinion on capacity is not an absolute determinant.

Possible action by spouse

What about WH’s loss of conjugal relations in this case?

The report states that she pursued a claim under the Human Rights Act 1998, which was settled on confidential terms.

What else could CH’s wife have done, considering that nobody in this case suggested that the psychologist’s assessment was wrong?

It would have taken a brave and well-informed person to say the following, but she could in theory have written to the council as follows:

“If you believe my husband lacks capacity and you intend to tell other people about that in the context of safeguarding, you need to get it declared to be the case by a competent court because he is presumed to be capable and the psychologist is only expressing a view with which I do not happen to agree.

“I intend to go on offering him the opportunity to have sex with me unless or until you take proper procedural steps to clarify your position.

“If I am arrested by the police for a criminal offence, I will have a reasonable belief in my husband’s willing consent so I am not expecting to be charged or prosecuted.

“If you take steps in the court of protection to get an injunction against me, or change my loved one’s care plan so as to impact upon our private life, that is up to you, but you need to have taken on board my views about his capacity and best interests (because I am a statutory best interests consultee), in order to have any hope of success.”

This approach could be used, in adapted form, by any third party in a situation like this where a person is potentially unfairly regarded as a possible perpetrator of any type of abuse, particularly if the relationship is close.

Legal literacy in social care

Consider, however, if this had been an elderly woman with dementia in a care home, whose husband’s entrenched view was that she still knew him as her husband, and could consent to sex after 50 years of marriage – would the press coverage be critical of a “nanny” council?

The tabloid press might find the idea of women in care homes having a right to sex if they have capacity unseemly or inappropriate, especially if others deem the woman vulnerable. But the presumption of capacity applies to everyone, and the Care Quality Commission says care homes should be homely.

For this reason, a degree of legal literacy really matters for adult social health and care clients. The distinction between what constitutes a sexual crime or a civil assault, as opposed to conduct that carries risks but can be managed as an issue of maximising welfare, is part and parcel of person-centred care planning and provision.

Observance of human rights is a duty in all care homes, not just of social work staff in councils or clinical commissioning groups. n

Conclusions: consent and welfare concerns

Laying down any clear test for capacity in relation to sex is a multifaceted problem. It all depends on the facts.

It is hard to define consent on paper given the range of contexts and motives for people without cognitive impairment to willingly participate in a sexual activity – many of us might accede to deliberately abusive treatment through ignorance, openness to experimentation or simply hunger for attention, love or comfort.

There is social ambivalence about the range of sexual acts – from the ordinary straight or gay, through to the unusual, to the well out of the ordinary and into fetishism – if there is no apparent unwilling victim.

It is almost impossible to separate welfare concerns from the strict question of capacity in matters such as the differing possible consequences of sex for men and women, and the differing impact of sterilisation (usually irrevocable in women, potentially reversible in men).

The underlying purpose of criminal law is different from civil law, and prosecution and actions for civil assault have different standards of proof for public policy reasons.

Belinda Schwehr is chief executive of legal advice charity CASCAIDr (www.CASCAIDr.org.uk) and owner of the Care & Health Law consultancy. She has been a barrister, a solicitor advocate and a university law lecturer

References

CH v A Metropolitan Council [2017] EWCOP12

Local Government Association (2017) Making Safeguarding Personal. www.local.gov.uk/topics/social-care-health-and-integration/adult-social-care/making-safeguarding-personal

Schwehr B (2017) What is the law on capacity to have sex? Community Living. 31(2): 10-11

This article is the second of a two-part series. Part one highlighted the case of KA, a person with a rudimentary understanding of sex, who was presumed capable of consenting (Schwehr B, 2017)