Judge: Sir Mark Hedley
Citation:  EWCOP 12
CH was born with Downs Syndrome and an associated learning difficulty. In 2010, he married his wife, WH, and they lived together in his parents’ home. They sought fertility treatment, during which a consultant psychologist concluded in late 2014 that CH lacked capacity to consent to sexual relations. On 27 March 2015, the couple were informed of the capacity assessment and WH was advised that she must abstain from sexual intercourse with her husband as that would, given his incapacity to consent, comprise a serious sexual offence under sections 30-31 of the Sexual Offences Act 2003. She was also given to understand by the local authority that should she fail to comply, safeguarding measures would be taken which would require the removal of CH (or herself) from their home. His wife moved into a separate bedroom and significantly reduced any expression of affection so as not “to lead him on”. CH could not understand why she did that and, ass Sir Mark Hedley noted, “[t]he impact of all this on CH is not difficult to imagine.”
Importantly, the consultant psychologist had made clear that CH needed a course of sex education to assist him to achieve the necessary capacity. As Sir Mark noted “[t]hat advice was of course in line with the principle set out in Section 1(3) of the Mental Capacity Act 2005 (MCA 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.” However, “[f]or reasons that have never been satisfactorily explained, the Local Authority failed to implement that advice despite requests and protracted correspondence.” In the end, it required proceedings initiated by CH’s sister in February 2016 to bring about both that education and, in due course, a determination that CH had the requisite capacity.
A court order implemented the original psychological advice and the education course finally began on 27 June 2016. The therapist reported that CH had made sufficient progress in all areas but did not understand the health risks from a sexually transmitted disease. However, given that CH and WH were in a committed monogamous and exclusive relationship, he questioned whether that was ‘relevant information’. The court-appointed expert psychiatrist advised that further sex education would be necessary and the same therapist delivered this in early 2017, as a result of which CH now had capacity to consent to sexual relations. The court made a declaration to that effect on 2 May 2017, after which the couple were entitled to and did resume a normal conjugal relationship.
A claim was then brought under the Human Rights Act 1998 on the basis that the local authority breached CH’s rights under Article 8 ECHR. And the court was invited to approve the claim on behalf of CH. As Sir Mark Hedley noted:
Sir Mark Hedley made the important observation (rather lost in the press coverage) that:
CH’s wife had already brought her own claim for a violation of Article 8 ECHR which had been settled on confidential terms. But for CH, the local authority made the following offer to settle the claim:
The local authority had also agreed to pay CH’s costs of the Court of Protection proceedings agreed at £21,600 (inclusive of VAT). This ensured that the damages would not need to be recouped by the Legal Aid Agency under s.25 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012.
The court approved the terms of the settlement as being in CH’s best interests and reflecting a fair outcome to the proceedings. Sir Mark Hedley emphasised, however, that “[m]any would think that no couple should have had to undergo this highly intrusive move upon their personal privacy yet such 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” (para 25).
This important decision raises a substantive issue relating to the capacity to consent to sexual relations. In particular, whether the risk of sexually transmitted diseases is relevant information where the individuals are in a committed monogamous and exclusive relationship. Compared to those situations where sexual disinhibition puts P at serious risk of abuse, the sexual health risks must be negligible.
The case also provides a useful opportunity to reflect upon whether capacity to consent to sexual relations ought to be “on a general and non-specific basis” (IM v LM and others  EWCA Civ 37, at ) or whether a more sensitive person-specific approach ought to be adopted. After all, sex is a form of contact and capacity to consent to contact is person-specific (see ‘The opacity of sexual capacity’ (2012) 2 Elder Law Journal 352). In our view, it would be entirely logical, for example, for CH to have capacity to consent to sexual relations with his wife whilst lacking capacity to consent to sexual relations to others as the nature and degree of risks are different.
It is interesting that English law seems comfortable making best interests decisions that P has contact with Y but prohibits in MCA s.27 a decision that it is in P’s best interests to have sexual relations with Y. The logic appears to be that such a decision would be too personal to make on behalf of P. But why? Is it not just as personal not to make such a decision? To have to do what CH’s wife did in this case so as not “to lead him on”? Could it be argued that the absolute prohibitive nature of MCA s.27 is in fact contrary to Article 8 (and potentially 12) ECHR? The warning letter from the local authority in this case also vividly illustrates the stark interface between sexual incapacity and the criminal law. Whether the blanket prohibition in the Sexual Offences Act 2003 is necessarily the appropriate response has also been called into question (for example, see Bartlett, ‘Sex, Dementia, Capacity and Care Homes’ (2010) 21(2) Liverpool Law Review 137).
We note, finally, that something may have gone awry procedurally (at least as it is reported). Sir Mark Hedley noted that, pursuant to the decision in Luton v SW  EWHC 450 (Fam), the claim had to be brought under the Civil Procedure Rules as a Part 8 claim. To comply with H v Northamptonshire CC  EWHC 282 (Fam) at , a letter before action was sent on CH’s behalf. Sir Mark Hedley then noted that the court’s approval to the proposed settlement was required under CPR rule 21.10.
The difficulty with the course of action set out above is that it seems to have conflated two things: (1) the fact that a separate claim for HRA damages should have been brought, something which now appears to be the right course of action in almost all cases (not least to avoid problems with the LAA statutory charge); and (2) the location for such a claim. A CoP judge, as CoP judge, has no ability to hear a Part 8 CPR claim. Either the CoP judge should be hearing and determining a claim brought within the CoP under the CoP Rules (and Practice Direction 11A), or they should be sitting as a judge endorsing a settlement within civil proceedings.