Court Guidance on Mental Impairment and Sexual Relations

In a guideline case which begged the question of when it is appropriate for society to intervene paternalistically in an individual’s choice whether or not to enter into sexual relations, the Court of Appeal has ruled that a woman who suffered severe brain damage during surgery nevertheless has the mental capacity to consent to intimate contact with her boyfriend.

Medical experts and care professionals had expressed deep concerns that the woman might come under pressure to agree to sex. She had endured bouts of amnesia and acute confusion and it was said that she was incapable of weighing up information concerning the risks of pregnancy or sexually transmitted disease.

The woman had, prior to the operation, led a chaotic lifestyle and had an extensive history of drug and alcohol abuse. Her boyfriend also had a troubled background and had a significant criminal record. However, despite her mental impairment, the Court of Protection ruled that she was entitled to participate in activities ‘which may carry at least some levels of risk’ and that she had capacity to consent to sexual relations.

The woman’s mother challenged that decision, but the Court found that that the Court of Protection’s ruling was ‘not just unassailable…but correct’. The Court noted that the case had raised profound issues as to the extent to which society should intervene in areas which are normally matters of personal choice.

Medical experts had raised concerns that unsupervised contact between the woman and her boyfriend – whose ‘inappropriate behaviour’ had seen him barred from visiting her in hospital – might lead to sexual relations. Fears were expressed that the woman placed too much trust in her boyfriend and that she might ‘feel coerced or pressurised or manipulated into sexual activity’.

Dismissing the appeal, however, the Court stressed that that there was nothing to suggest that the boyfriend had sought, or would seek, to take advantage of the woman sexually. With appropriate support, supervision and safeguarding measures in place, the woman would be adequately protected and there would in any event be few opportunities for sexual contact.

The Court concluded, “This woman’s weakness of perception in this area, a weakness which is sadly not uncommon, does not in her case tell in favour of a lack of capacity to consent to sexual relationships any more than it does in a person of full capacity.”