A local authority has agreed to pay £10,000 in damages to a man with learning disabilities after it breached his human rights by delaying him with the sex education required to help him gain capacity to consent to sexual relations. In a Court of Protection ruling last month, judge Sir Mark Hedley found that the man was entitled to compensation since he did not start to receive sex education, which was recommended following a capacity assessment by a consultant psychologist, until more than a year after his wife had been told by the council to abstain from having sex with him.
This case raises many issues about the assessment of an individual’s mental capacity to consent to a sexual relationship under the Mental Capacity Act (MCA). Current case law requires a person to understand the mechanics of the sexual act; the risk of pregnancy; the health risks involved and especially sexually transmissible infections; and the importance of understanding consent and the right to say “no.”
The Court of Protection Judge Sir Mark Hadley admitted that this case was “maybe unique” in addressing this issue in a marriage. The couple had been married for 5 years and had “enjoyed normal conjugal relations”. However, once the husband had been assessed as lacking capacity to consent, the consequences for the couple were life changing. The wife was informed that they had to abstain from sexual relations otherwise she would be committing a crime under section 30 of the Sexual Offences Act 2003. She faced her husband having to move out from their home if sexual relations took place. It is not surprising that the couple moved into separate bedrooms and reduced “any physical expressions of affection.” This feels wrong especially when the couple had achieved a positive relationship and marriage which is often an unreachable dream for many people with learning disabilities.
The clinical psychologist who carried out the mental capacity assessment recommended that the Local Authority provide a course of sex education for the husband. The aim of this was to enable him to meet the requirements of the capacity assessment in line with the MCA’s emphasis that “a person is not to be treated as unable to make a decision unless all practicable steps to help him to do so have been taken without success.”
Recognising the appalling situation that the couple was in following the initial capacity assessment, you would anticipate that the Local Authority would move sensitively and quickly to provide all practicable steps. However, no sex education programme was provided for fifteen months, despite regular contact and written requests. The programme was finally provided as a result of an order from the Court of Protection as the husband’s sister was forced to institute proceedings. The delay in providing the sex education programme for no good reason was simply disgraceful and quite rightly resulted in the apology, costs and damages that have been secured from the Local Authority.
However, it is clear that the steps taken following the assessment that the husband lacked capacity to consent to sexual relations are viewed as legal, justifiable and anticipated. The couple had to abstain from sexual relations with each other from March 2015 to May 2017 because of the safeguarding concerns linked to the capacity issues. The intrusion into their private lives and the unanticipated consequences and impact of this experience makes me question whether the MCA is the best way to address these issues.
The Court of Protection Judge Sir Mark Hedley stated: “Many would think that no couple should have 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.”
In my view, this is a price that is not worth paying. There must be a better way to address understanding and capacity in friendships and relationships that also protects people from abuse and exploitation.
Keith Smith, BILD Head of Consultancy.