Court hears woman ‘lacks the capacity’ to consent to sexual relationship with husband

By Brian Farmer8th May 2019News EnglandAdult Care, Courts / Justice, Learning Disabilities, London, Mental Capacity, News England, Vulnerable Adults

A judge might rule that a woman who has learning difficulties is no longer able to consent to having sex with her husband of more than 25 years.

Mr Justice Hayden has been told that a specialist has concluded the woman’s mental health has reached the stage where she is no longer capable of understanding the “sexual act”.

Lawyers representing the woman want him to make a declaration saying she “lacks the capacity” to consent to sex.

The judge said he would need to explore the woman’s “right to a sexual life” with her husband – and her husband’s right to a sexual life with her – before reaching a conclusion.

He said the case was “about understanding and respecting” the “rights and autonomy” of people with a “range of difficulties”.

Mr Justice Hayden analysed the woman’s case at hearings in the Court of Protection, where issues involving people who lack the mental capacity to make decisions are considered, in London.

He oversaw the latest hearing on Tuesday and is expected to publish a ruling later in the year.

Mr Justice Hayden said the couple, who live in London, cannot be identified in media reports.

The husband had initially offered to give an undertaking not to have sex with her, but the judge said evidence had to be explored in detail before decisions were made.

The woman’s husband was not at Tuesday’s hearing.

He had moved out of their home, lawyers said, and the woman was being looked after by carers and relatives.

The judge said he wanted the couple to understand that everyone involved in the litigation wanted to try to help them in the best way.

Mr Justice Hayden, who also oversees cases in the Family Division of the High Court, heard submissions from lawyers representing council social services bosses with responsibility for the woman’s care and lawyers representing the woman.

Staff at the Office of the Official Solicitor, who help vulnerable people caught up in litigation, have instructed lawyers on the woman’s behalf.

Barrister Andrew Bagchi QC, leading the woman’s legal team, told the judge a similar issue could arise with people whose mental health declined because of dementia.