When should the state prevent vulnerable people from having sex? Jolanta Edwards
Jola Edwards, LLB Solicitor and Director
When should the state intervene to prevent vulnerable people
from having sex? Jolanta Edwards
IM v LM and Others  EWCA Civ 37 (Court of Appeal)
As the solicitor with conduct of this matter I felt it might be useful to set down a few brief thoughts about a case which has grabbed recent newspaper headlines.
The fundamental issue in this case is the threshold that has to be applied when assessing the capacity of an individual to engage in sexual relationships and how this might be different when considering ‘best interests’ decisions such as having contact, going away for a holiday or even shopping.
My client’s daughter had been found lacking capacity to make any decisions as far as the choice of her accommodation, type of care or contact with others and yet she was considered by a Court of Protection Judge to have sufficient capacity to make decisions about engaging in a relationship with a man that bore witness to the gradual disintegration of her life due to drugs and alcohol and who was asked to leave the premises of the hospital where she had been treated following her traumatic brain injury due to his ‘inappropriate behaviour’.
From my client’s perspective, the outcome of the decisions, both in the Court of Protection and in the Court of Appeal, were highly unsatisfactory as she believes that they have not afforded her vulnerable daughter the protection that her family consider to be essential in order to safeguard her future safety and her best interests.
My client’s daughter belongs to a group of people who will not be best served by the judgment. Whilst it may be correct to say that the threshold for capacity to engage in sexual relations should be set deliberately low on the basis that ordinary people rarely spend hours agonizing over the choice of their sexual partner, there is fundamental difference between my client’s daughter and an ‘ordinary citizen’.
Most of us are able to review and reassess our decisions in relation to our relationships and hopefully we learn from past mistakes and can chose to protect ourselves from the consequences. Furthermore, most of us have the inherent good fortune in being both physically and emotionally robust enough to be able to move on with our life. Such luxuries may not be afforded to people with severe brain injury or other learning difficulties. This is why there are safeguards in place to protect them from life’s daily hazards whilst out, for example, on a shopping trip.
It is difficult to understand why it is not considered appropriate to apply a similar approach when it comes to sexual relationships. Some people with learning disabilities may be unable to learn from past mistakes and thus if society considers it right not to allow them to make decisions about their finances, choice of accommodation partner, treatment and care, why is it not appropriate to afford them protection from a possibly exploitative sexual contact.
How can it be right for a mentally vulnerable person to engage in a sexual relationship if they are unable to appreciate the consequences of their actions such as potential sexual injury, pregnancy, unusual sexual practices and emotional trauma? If they are rejected by their partner, they may experience great emotional distress without the ability to understand the reasons for the rejection.
The judgment of the Court of Appeal has not helped this mother who strongly believes that a choice of a sexual partner for her daughter who has a severe brain injury should not be left entirely in her hands. There should be the mechanism for creating a protective framework which this judgement makes it more problematic.
This is not the end of the road as permission is being sought to appeal to the Supreme Court.
13th February 2014
Peter Edwards Law