Ed Madden, BL, seems at a current England and Wales Court docket of Safety case by which the Court docket thought of whether or not an aged woman in residential care who suffered from the results of great reminiscence impairment had capability to have interaction in sexual relationships
In August 2024, the England and Wales Court docket of Safety delivered its judgment in a case by which the Court docket needed to determine whether or not a girl in her late seventies (‘PS’) who lived in residential care, lacked capability to make sure selections about her welfare.
These included selections round residence, the care she was receiving, the consumption of alcohol, and make contact with with different folks. Considerably, in addition they included a call round capability to have interaction in sexual relationships. The case was thought of underneath the Psychological Capability Act 2005 (‘the MCA’), which establishes presumption of capability.
When the case got here on for listening to, the Court docket was instructed that lately PS suffered the results of reminiscence impairment, which had change into ‘extraordinarily severe’. She was recognized with alcohol associated impairment, related alcohol misuse and amnesiac syndrome.
For many of her life PS had lived independently. She was married for a few years till her husband died. Following his demise, she began a relationship with ‘WP’ who was a buddy since their teenage years.
Their relationship ‘seems to have been framed inside a tradition of alcohol use and, it seems, overuse’.
Nonetheless, it had additionally been a loving and caring relationship from which PS benefited to the extent that she might. They’d lived collectively as companions for one of the best a part of twenty years. They loved a sexual relationship and it was not in dispute that each of them wished that relationship to proceed, however the truth that she was now in residential care.
In her skilled proof to the Court docket, a Advisor Medical Neuropsychologist described the problem of PS’s capability to have interaction in sexual relations as ‘finely balanced’.
On the finish of her oral proof she had come to the conclusion {that a} correct care plan with a facilitative method to consent would allow PS to make a capacitous resolution about participating in sexual exercise with WP. For that cause, ‘and in line with the regime of the MCA’, steps must be taken to make sure that such an method was facilitated.
Having thought of the proof, Mr Justice Burrows gave his resolution within the case. He determined that PS lacked capability to make all selections, apart from participating in sexual relations. Coping with the latter difficulty, he agreed that the choice was ‘finely balanced’.
Nonetheless, it was essential to emphasize that the sexual exercise being thought of within the current case was between established and loving companions. WP could possibly be trusted to make sure that he behaved appropriately inside the context of their relationship. He was additionally ‘aware of the necessity for the brink for capability to consent to sexual exercise to be set low’.
The decide stated it was essential in circumstances of this sort to keep away from the safety crucial the place ‘the simplest factor on the planet’ is to forestall PS and folks in the same scenario from doing what they need to do, as a result of firstly, facilitating it will be too sophisticated, and secondly it will nonetheless contain threat. He additionally cautioned in opposition to making capability selections which are so synthetic that they impose an unrealistic burden on these concerned in planning care ‘to attain one thing that can’t realistically be achieved’.
The decide concluded that PS didn’t lack the capability to have interaction in sexual exercise with WP. The burden was on these asserting incapacity to displace the presumption of capability supplied for within the MCA. The presumption had not been displaced within the current case.
That being stated, the presumption of capability solely survives within the occasion {that a} correct protecting care plan could be put in place to allow PS to get pleasure from sexual exercise with WP (in the event that they each want to take action). The decide acknowledged that placing such a plan in place could be difficult. It will require a set of preparations that will permit the couple to have time collectively in privateness, when that was required. 
Reference: [2024] EWCOP 42 (T2)
