EE (Capacity: Contraception and Conception), Re
[2024] EWCOP 5
PS (Severe short term memory loss: Capacity to engage in sexual relations), Re
16 August 2024
[2024] EWCOP 42 (T2)
Court of Protection
An elderly woman with memory problems wanted to continue a sexual relationship with her partner. The court decided she couldn't make decisions about her daily life due to her memory, but she *could* decide if she wanted to have sex, as long as there's a plan to keep her safe.
Key Facts
- •PS, a 79-year-old woman, suffers from severe short-term memory loss due to alcohol-related amnesia.
- •PS and WP, her long-term partner, wish to continue their sexual relationship despite PS's residence in a care home.
- •Concerns were raised about PS's capacity to make decisions regarding residence, care, alcohol consumption, contact with others, and sexual relations.
- •A 'protection plan' was implemented restricting visits between PS and WP to communal areas.
- •The case centred on PS's capacity to consent to sexual relations, particularly in light of her memory impairment.
Legal Principles
Presumption of capacity; all practicable steps to help P make a decision must be taken; unwise decisions do not equate to lack of capacity; decisions must be in P's best interests; least restriction principle.
Mental Capacity Act 2005 (MCA), sections 1-21
Test for incapacity: inability to understand, retain, use, or weigh relevant information, or communicate a decision due to impairment of, or disturbance in, the mind or brain.
MCA, sections 2-3
Incapacity regarding sexual relations: no best interests decision can be made to enable consent; the LA must do everything possible to prevent sexual relations if P lacks capacity.
MCA, section 27(1)(a); IM v LM [2014] EWCA Civ 37
Relevant information for assessing capacity to consent to sexual relations (JB): understanding the sexual nature of the act; the need for mutual consent; ability to say yes or no and withdraw consent; risks of pregnancy and STIs.
A Local Authority v JB [2021] UKSC 35
Capacity decisions must be coherent and allow for practical care arrangements; lack of capacity for contact does not automatically mean lack of capacity for sexual relations.
Hull CC v KF [2022] EWCOP 33; Manchester City Council v LC and KR [2018] EWCOP 30
Outcomes
PS lacks capacity to make decisions regarding residence, care, alcohol consumption, and contact with others.
Due to severe short-term memory loss caused by alcohol-related amnesia, PS cannot understand, retain, use, or weigh information relevant to these decisions.
PS possesses capacity to engage in sexual relations with WP.
While PS's memory impairment presents challenges, the court found she understands the nature of the sexual act, the need for mutual consent, and her ability to withdraw consent. The risk of STIs was deemed low within the context of their long-standing monogamous relationship. A tailored care plan will facilitate safe sexual activity.