A tale of dissatisfaction

What is to happen when one half of a married couple is assessed to lack capacity to consent to sexual intercourse? And what are the consequences of failing to act appropriately? Those are the questions that were answered by Sir Mark Hedley in CH v A Metropolitan Council [2017] EWCOP 12.

The facts of the case are rather unique. CH, a man with Downs Syndrome, married his wife in 2010. They lived together from that time and happily had an intimate relationship. That is until March 2015 when, as a result of the couple seeking fertility treatment, CH’s wife was advised that CH did not have capacity to consent to sexual intercourse, and that by continuing sexual relations she may be committing a serious criminal offence. Naturally, CH’s wife did not want to suffer the consequences of that and so moved out of the marital bedroom and “reduced any physical expression of affection”.

The psychologist who assessed CH as lacking capacity advised that he may be able to gain sufficient understanding for him to have capacity if he undertook a course in sex education. Rather unfortunately, the Local Authority failed to take steps to implement this advice. This then led to a dry spell for CH and his wife until March 2017 (some 2 years later), when after having issued proceedings, the necessary courses were undertaken by CH and he was finally assessed to have capacity.

It was not disputed that CH’s Article 8 rights had been breached by the Local Authority. An offer of £10,000 of damages (along with an apology and costs) had been made by the Local Authority to compensate for this, and CH’s legal advisers thought this an acceptable agreement. Given CH lacked capacity, an approval hearing was convened for the Court to consider whether the agreement was in CH’s best interests. The Court ultimately concluded that it was.

The damages agreed represent an award for a period of approximately 12 months. CH brought separate proceedings against the Local Authority in the Court of Protection, and the sex education course finally began in June 2016. This was followed by a second course because further work was needed before CH was considered to have gained capacity. The Court accepted that the Local Authority would need some time to set up the course, and therefore considered the breaches to be of a 12 month duration.

What can be taken from this frustrating saga?

Firstly, heed section 1(3) of the Mental Capacity Act 2005 which provides:

“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.”

It is not enough to simply assess a person’s capacity. Consideration must (imperative) be given to what steps can be taken to help a person make a decision. And when you get that advice, act on it – and swiftly.

Secondly, if you are a public body and you do not act on advice, and as a result there is a breach of rights, be prepared to put your hand in your pocket. The £10,000 awarded in this case was described to be towards the lower end of the range of reasonable damages. The Court was willing to agree it on the basis that the Local Authority had also agreed to pay the costs in the Court of Protection proceedings (£21,600), plus the pre-action costs of these proceedings (£7,395), and the actual costs of these proceedings (not quantified). Therefore, in total, the blunder cost the Local Authority well in excess of £38,000.

Finally, a rather interesting point was made by the Court which I repeat:

“Before turning to the proposed settlement itself one further observation may be ventured. This case is unusual; indeed thus far it may be unique in being applied to a settled, monogamous and exclusive married relationship. In those rare cases where the courts have made declarations of incapacity to consent to sexual relations, they have generally been cases of restraining sexual disinhibition to protect from abuse or the serious likelihood of abuse. However, logically the question of capacity must apply also to married relations and the criminal law makes no distinction between settled relations and sexual disinhibition or indeed between sexual relations within or outside marriage. 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”.

Fortunately, all ended well. We are told that CH and his wife resumed a normal conjugal relationship, which subsisted.

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