Capacity Assessments: the Price Of Getting It Wrong

Posted: 21st September 2017

When a person lacks capacity to make a decision for themselves, a decision should be made in their best interests apart from in certain circumstances. It is unlawful for anyone to decide that it is in the best interests of an incapacitated adult to enter into a marriage or engage in sexual relations. Capacity is issue specific so it is possible for a person to have capacity to make a decision about one issue (e.g. the care they receive) but not another (e.g. to consent to sexual relations).

When an assessment takes place, consideration must be given to the maximisation of capacity, that is whether anything can be done to assist the person to gain capacity. Examples of this include providing education around a certain subject or communication aids to help the person understand and communicate.

This issue was considered by the Court of Protection in the recent case of CH http://www.bailii.org/ew/cases/EWCOP/2017/13.html

CH was a married man who sought fertility treatment with his wife. As part of the treatment there was an assessment which found that he lacked the capacity to consent to sexual relations. Engaging in sexual relations with someone who lacks capacity to consent is a criminal offence and so such marital relations stopped. It is crucial to note that the capacity assessment stated that CH should be provided with a sex education course which may assist him to develop capacity to consent.

Almost a year later, the sex education course had not been provided by the local authority and only started after the case was brought before the Court of Protection. Once the course had eventually taken place, CH was further assessed and found to have the capacity to consent to sexual relations and could then continue his sexual relations with his wife.

The delay in provision of the sex education course, as the method to assist CH to develop capacity in this area, was then the basis of a claim against t he local authority. The claim was brought under the Human Rights Act on the basis that CH’s right to respect for a private and family life under Article 8 of the European Convention on Human Rights had been disproportionately interfered with. An award of £10,000 damages plus costs was made.