Article 8 and the Lack of Capacity to Consent to Sexual Relations

Article 8 and the Lack of Capacity to Consent to Sexual Relations

CH (by his Litigation Friend, Official Solicitor) v Metropolitan Council [2017] EWCOP 12

In this highly unusual case, the Court was asked to approve a settlement made by a local authority (represented by Sam Karim QC) relating to an individual (CH), who had a diagnosis of Downs Syndrome and learning difficulty. When assessed by a psychologist it was concluded that he lacked capacity to consent to sexual relations. CH’s wife, WH, was advised she must abstain from sexual relations and she moved into a separate bedroom. There was a delay in providing the course of sex education that CH needed to achieve the necessary capacity. Proceedings were instituted by CH’s sister in the Court of Protection and the programme of education was delivered resulting in CH gaining capacity and resuming a normal conjugal relationship. The claim for damages arose after the local authority assessed CH as lacking capacity to consent to sexual relations with his wife (WH) and that such relations could only be continued once he had undertaken a course of sex education. It was accepted by the local authority that they were in breach of Section 6(1) of the HRA 1998.

The Court approved the settlement reached between the local authority and CH, which included £10,000 (plus paying his costs) and the settlement had to be agreed by the court. The court agreed the settlement figure put forward by the local authority. Sir Mark Hedley said that this case:

"raised some important questions both about liability and damages under the HRA 1998 but also about the risks or cost of protecting the vulnerable. Many would think that no couple should have had to undergo this highly intrusive move upon their personal privacy yet such move was in its essentials entirely lawful and properly motivated. ... [It was] part of the inevitable price that must be paid to have a regime of effective safeguarding."

The claim was brought as a CPR Part 8 Claim pursuant to Luton v SW [2017] EWHC 450 (Fam). The Court of Protection had power to approve a settlement (YA(F) v A Local Authority [2010] EWHC 2770) under CPR 21.10.

For an interview by Alex Heshmaty of LexisNexis with Sam Karim QC and Arianna Kelly about decision of this case click hereSimon Burrows and Francesca Gardner also represented WH in the underlying Court of Protection proceedings. 

Sam Karim QC is the head of Court of Protection & Public Law at Kings Chambers. He represented the local authority in this case, and is recognised as a leading silk in this area including administrative law and serious medical treatment by the Legal 500 and Chambers and Partners. They comment that he is an “outstanding advocate” and that “When he is on his feet in a courtroom, he is simply captivating." For more information please contact Mark Ronson (mronson@kingschambers.com)

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