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Capacity to decide to engage in sexual relations - a case law example

View profile for Jessica Hobro
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Court of Protection decides that man with irreversible stoma has the right to choose to die

The recent case of Hull City Council v KF [2022] EWCOP 33 concerned KF, a 34-year-old woman with a condition of agenesis of the corpus callosum which causes her to have a moderate learning disability. KF’s condition has an impact on her capacity to make decisions for herself.

In this case, the Court of Protection had to consider whether it was in her best interests to be allowed to spend a night of unsupervised contact with KW, a man whom she had been in a long-term relationship with. The relationship was very abusive, including incidents of sexual and physical assault. The assaults led to KF moving to a care home.

In May 2022, the court had declared on an interim basis that KF had capacity to engage in sexual relations but lacked capacity to conduct the proceedings, to manage her property and affairs and to make decisions in respect of her residence, care and contact with others. These declarations were made following KW seriously assaulting KF which caused serious internal injuries to her (almost leading to her death). KW was charged with a s18 assault and was awaiting sentencing for assault on KF.

KF had been diagnosed with metastatic breast cancer and had been given a poor prognosis of being unlikely to survive beyond eighteen months, or possibly even a few months. It was likely KW would not be released from prison during KF’s remaining lifetime. KF had consistently expressed a wish that she wanted to spend time with KW before his sentence (unsupervised and overnight contact), as she missed him and “wants to hug him and lay next to him” [para 8]. KW confirmed that he also wanted to have unsupervised contact with KF and to have sex with her during that time. The court was being asked to determine whether this would be in KF’s best interests.

The initial expert evidence concluded that KF lacked capacity to make decisions in respect of contact with others and her residence, but had capacity to make decisions about engaging in sexual relations. The reason for this conclusion was that KF, “understands the key issues in sexual relations” and “has been able to retain the necessary information.”

In deciding whether it was in KF’s best interests to spend a night of unsupervised contact with KW, the Judge considered the fundamental principles concerning capacity and best interests set out in sections 1 to 4 of the Mental Capacity Act 2005:

  • Section 1(2) - “A person is assumed to have capacity unless it is established that he lacks capacity”.
  • Section 2(1) - “For the purposes of this Act, a person lacks capacity in relation to a matter if at the material time he is unable to make a decision for himself in relation to the matter because of an impairment of, or disturbance in the functioning of, the mind or brain”.
  • Section 3(1) - “A person is unable to make a decision for himself if he is unable to (a) understand the information relevant to the decision, (b) retain that information, (c) to use or weigh that information as part of the process of making the decision, or (d) to communicate his decision.”

The Judge also considered Lord Stephens judgment in the case of A Local Authority v JB, in particular that, “If the formulation of “the matter” for decision can be properly described as person-specific, then the information relevant to the decision may be different, for instance depending on the characteristics of the other person… or the risks posed to P by an individual”.

The Judge gave permission for further expert evidence to consider the issue of KF’s capacity to make decisions in respect of engaging in sexual relations specifically with KW. In his addendum report, the expert concluded that, “Although it is my opinion that KF does have capacity to decide whether to have sexual relations in general, in the person specific question of having sexual relations with KW, it is my opinion that she does not have capacity as to whether sexual relations with KW are safe.”

The Judge concluded that the court’s previous determinations about capacity to engage in sexual relations concerned a general matter for decision by KF however the matter before the court concerned a person-specific decision about sexual relations.

The Judge concluded that KF lacks capacity to make decisions to have unsupervised contact, including overnight, with KW and to decide to have sexual relations with KW as she is unable to retain, weigh and use the relevant information in relation to each of these matters.

The Judge further concluded that as KF lacks capacity to decide to engage in sexual relations with KW, the court cannot decide that it is in her best interests to have sexual relations with him. The Court of Protection is not able to consent to sexual relations on behalf of a person. The Judge considered whether any form of unsupervised, overnight contact would be in KF’s best interests and his conclusion was that it would not.

This may not be a surprising decision in light of the abuse previously suffered by KF, perpetrated by KW and the clear risks to her, but an individual’s wishes and feelings ate taken into account by the Court of Protection in making a decision on their behalf and a key consideration is the weight to be given to express wishes in any particular case – in this case, other factors included the fact that KF has a relatively little amount of time left to live, and that spending time alone with KW was her dying wish.

However, it was decided to be in her best interests to have contact with KW in public places under supervision, and say “no reason why it could be contrary to KF’s best interests to accede to her wish to kiss and cuddle KW during a final supervised contact in a public place” [para 35].

It is important that if a person wishes to engage in sexual relations and there are concerns in respect of their capacity to do so, that you obtain advice from a specialist solicitor. It is imperative that any capacity assessments are undertaken thoroughly and in accordance with the relevant legislation and case law. Our Court of Protection team at Stephensons can provide clear advice in respect of this very complex area and can be contacted on 0161 696 6174.