The Court of Protection had to decide whether a person with severe short-term memory loss lacked capacity to make a decision regarding her sexual relations.
Background:
PS is a 79-year-old woman who suffered from severe memory impairment due to alcohol. For most of her life, she has lived independently. After her husband died, she entered into a relationship with WP and they have been living together since. Their relationship has been framed within a culture of alcohol use and overuse. They both wanted their relationship to continue despite PS moving to residential care. Before PS was assessed as lacking capacity, PS and WP were found in a locked bedroom and the incident was reported to the police. As a result, a ‘protection plan’ was put in place to manage WP's visits which included a prohibition of WP from entering PS's bedroom so he could not be accused of rape or indecent assault. Despite the plan, there had been two incidents.
The Court was asked to determine whether PS had the capacity to make decisions regarding her residence, care, alcohol consumption, contact with others, and sexual relations.
Decision:
His Honour Judge Burrows ruled that PS lacked the capacity for all decisions except engaging in sexual relations according to the Mental Capacity Act 2005. The MCA contains a presumption of capacity and a requirement to take all practicable steps to help a person make a decision.
Her impaired short-term memory meant she lacked the ability to make decisions as to her residence or care because she had no real concept of where she was or what her care needs were. She was unable to assess the risks associated with the consumption of alcohol and that needed to be regulated by others in her best interests.
Having reviewed the relevant case law, especially the Supreme Court guidance in A Local Authority v JB [2021] and expert evidence, the Judge concluded that the threshold for capacity to consent to sexual activity is quite low. The Court highlighted the need to avoid overly protective measures which could unnecessarily restrict PS’s autonomy. The burden of incapacity was on those asserting it and they could not displace the presumption of capacity. So, she was found to understand the mechanics of sexual activity and the need for consent from her long-term partner, WP. The Judge emphasised that PS could only be assumed to have capacity for sexual relations if a proper protective care plan was in place to enable consensual activity with WP. He acknowledges the challenge in setting this care plan and arrangements to enable the couple to enjoy their time together.
Finally, the Court noted that the Lasting Powers of Attorney was defective but made a deputyship order giving DT and other attorneys identical powers.
Implications:
This decision reaffirms that there is a presumption of capacity for sexual relations, as the threshold is quite low. It is on those trying to assert a lack of capacity to demonstrate that such presumption should be displaced. This judgement makes it clear that individuals have the right to engage in sexual activity unless proven otherwise. However, in this specific instance, a protective care plan must be in place to ensure PS can safely enjoy sexual relations.