A 38 year old man with Down’s Syndrome has been awarded £10,000 in damages after the Local Authority barred him and his wife from having sex for over a year on the basis that he lacked the capacity to consent.
The anonymised judgment was published yesterday following a Court of Protection hearing in front of Sir Mark Hedley on the 10th July.
Background to the case
CH and his wife WH married in 2010. They moved in together and enjoyed a “normal” and “happy” sexual relationship. In late 2014 after the couple had pursued fertility treatment, the Local Authority intervened to have CH psychologically assessed and concluded that he lacked capacity to consent to sexual relationships. In a letter dated 27th March 2015, the couple were informed of this outcome and WH was advised that sexual intercourse with her husband would comprise a serious criminal offence. WH moved into a separate bedroom and made efforts to limit physical affection in order not to “lead him on”. Though the consultant psychologist had prescribed a sex education course to help CH gain the capacity to consent, the Local Authority failed to implement it, so this state of affairs continued.
In February 2016, CH’s sister, acting as his litigation friend, instituted Court of Protection proceedings. After a court order, the sex education course finally began on 27th June 2016. On that course’s completion, a court-appointed consultant psychiatrist recommended further sex education and it was not until the 19th March 2017 that the psychiatrist finally concluded that CH had the capacity to consent.
Shortly after CH began proceedings to seek damages from the Local Authority for breaching his Article 8 rights.
Hearing the case in the Court of Protection Sir Mark Hedley emphasised that there was no contention that barring a married couple from sexual intimacy is, on the face of it, a breach of ECHR Article 8.
However he found that the breach of this qualified right was in the first instance justifiable. Hedley explained that CH’s Down’s Syndrome and associated learning difficulty mean that the Local Authority has “certain responsibilities” towards him and therefore “there can be no criticism of the fact that there was an assessment in late 2014.” The prescription of a sex education course too was regarded as in line with the Mental Capacity Act 2005.
Hedley thus emphasised that it was not the initial move to bar sexual relations which breached CH’s rights but the subsequent delay in delivering the necessary sexual education.
Even given some time to set up the programme, the actionable delay was found to be over a year, “for reasons that have never been satisfactorily explained” and “despite requests and protracted correspondence”. The Local Authority did not contest that there was at least a 12 month actionable delay and that as a result they breached CH’s Section 8 rights and therefore Section 6(1) of the HRA 1998. They offered a formal apology for the delay, £10,000 damages and to cover CH’s legal costs.
Assessing this offer Hedley found that as WH pursued her own confidential claim, the costs could not be recouped by legal aid and that the Local Authority was fully liable. Putting the appropriate range of damages between £10,000 – 20,000, Hedley also considered the offer in the light of the public apology offered and the advantages of settling the case without further litigation which could be distressing and invasive for the couple. Hedley authorized the litigation friend to accept the offer on the behalf of CH, concluding that the proposed settlement is in the best interests of CH and reflects a fair outcome.
This was an unusual case with little to no relevant case-law. Indeed in his judgment Hedley noted that it was not possible to find “any close, let alone exact comparators” in reported cases in England and Wales. As he notes, in the rare cases that courts have made declarations of incapacity to consent to sexual relations they have generally been concerned with restraining sexual disinhibition to protect from abuse and not within happy relationships:
“This case … may be unique in being applied to a settled monogamous and exclusively married relationship.”
The case examines some of the risks involved in state efforts to safeguard vulnerable people. Notwithstanding the controversy of intervening in the private life of a married couple, Hedley’s broad, instinctual approach and the Local Authority’s cooperative offer results in a confident interpretation of liability and damages under the HRA 1998.
You can read the full judgment for CH v A Metropolitan Council  EWCOP 12 (28 July 2017) here.