PS v A Local Authority, WP, DT & RS

Summary 

This case concerned PS, a 79 year old lady with what was described as an extremely serious memory impairment related to alcohol use. She had been in a sexual relationship and lived with WP for almost twenty years. By the time the matter came before the court PS was residing in a care home, but it was common ground that both PS and WP wished for their sexual relationship to continue. However the care home had put in place a protocol to prevent the couple having time alone together in PS’s room because of concerns that PS lacked the capacity to consent to sex. 

The issues in the case centered on PS’s capacity to make decisions about contact and engaging in sexual relations. The expert found that PS was unable to assess risks that a person with whom she was having contact with may pose to her. In addition, she was liable to misidentify people – she had for example mistaken other men for WP. HHJ Burrows perhaps unsurprisingly therefore found that she lacked the capacity to make decisions about contact with people in general and WP in particular. 

With respect to PS’s capacity to engage in sexual relations, HHJ Burrows held that given PS’s age, the relevant information did not include the fact that pregnancy could result from sexual intercourse. Further, HHJ Burrows held that as WP and PS were in a monogamous stable sexual relationship, the risk of transmission of sexually transmitted infections could also be excluded as part of the relevant information. He accepted that PS could understand, retain etc the mechanics of the sexual act and the fact that the other person must consent to the sexual activity. He also accepted the expert’s view that PS understood that she must also consent to the sexual activity. There was some discussion about whether or not PS had the capacity to change her mind once sexual activity had started. HHJ Burrows came to the view that if she did so, this would become apparent from her behaviour and WP would need to stop the activity. Unsurprisingly, he concluded that PS had capacity to consent to sexual relations and the presumption of capacity had not been displaced. However, importantly, he held that 

the presumption or assumption of capacity only survives in the event that a proper protective care plan can be put in place to enable PS to enjoy sexual activity with WP if she (and he) want it. As I said using other words during the hearing, that will be a challenging TZ care plan . That will require a set of arrangements that enables the couple to have time together in privacy when they wish.

Comment

Some might think that in his approach to sexual capacity, HHJ Burrows came as close as it is possible to the line in terms of maximising PS’s capacity to make decisions in relation to sexual relations.  Some might also think that the case suggests that the bedroom is peculiarly unsuitable for the sort of legal exercises that are required by the (statutory) law as it stands.  

What is also particularly interesting about this case is the separate consideration HHJ Burrows gave to PS’s capacity to make decisions about contact with people in general, and then with WP in particular. HHJ Burrows took this approach because PS’s deficits in the functional part of the capacity test arose from her seriously impaired short-term memory. However, because WP had been her partner of many years, she had “a strong sense of memory of him at a very deep level”.  In other words, HHJ Burrows felt, it was important to consider whether this might mean that she retained capacity to make decisions about contact with him. In fact, he found that she “had no ability to initiate or refuse contact within the context of her relationship with WP, other than simply following her basic feeling that she knows him, and he is her husband/partner.”