The Court of Protection recently considered the steps taken to safeguard vulnerable individuals and intervention in the intimate relationship of a married couple.

CH v A Metropolitan Council [2017] EWCOP12

CH had Down’s syndrome and a learning disability. He married his wife WH in 2010 and they lived together and enjoyed normal conjugal relations. An application for fertility treatment led to an enquiry as to CH’s mental capacity to consent to sexual relations. A consultant psychologist’s assessment resulted in a decision that CH did not have capacity to consent to sexual relations and would require a course of sex education in order to gain the necessary capacity.

Following a delay in implementing the sex education course, proceedings were brought for damages against the Local Authority pursuant to a breach of Article 8 rights.

The claim centred on the delay in implementing the course of sex education and ‘enforced abstinence from conjugal relations’.

The Court of Protection heard the case. Sir Mark Hedley concluded that some interference with Article 8 rights was permissible in view of the psychologist’s expert evidence but that the delay in providing the sex education course was actionable and breached CH’s Article 8 rights. The Court of Protection therefore approved a settlement in the sum of £10,000 plus payment of costs.

Comments

  • It was not the initial decision to direct abstinence from sexual relations that breached Article 8 but the subsequent delay in providing the sex education course. Barring a married couple from intimacy is on the face of it a breach of Article 8. Any interference with an individual’s private life must be justified and proportionate.
  • The criminal law makes no distinction between sexual relations inside or outside marriage.
  • The Mental Capacity Act 2005 provides that a person is not to be perceived to be lacking in capacity until all necessary steps have been taken to help him to regain capacity.