A woman has been given the chance to engage in sexual relationships by a Court of Protection judge.
A ruling from eight years ago had stated that the woman, who has not been named for legal reasons, lacked the mental capacity to “consent to sexual relations” or make her own decisions about using contraception, on account of her diagnosed learning disability.
But in an about turn, Sir Mark Hedley, who made the original ruling in December 2011, says the woman has since made “considerable progress” to the point where the first ruling is no longer proportionate or necessary.
Considering the changes made over the past eight years, Sir Mark found that the woman no longer lived in a care home, is now residing in supported accommodation and has demonstrated the mental capacity to consent to her own sexual relationships, and make contraception decisions, herself.
Sir Mark Hedley has explained his decision in a ruling published online after reconsidering the woman’s case at a Court of Protection hearing earlier this year.
Within the ruling, Sir Mark detailed a conversation he had with the woman during the hearing where he found that: “She very much appreciates the accommodation that she presently has and the support that surrounds it and the security that all that brings to her”
“But what she is anxious to do is to have a much greater control over her own relationships”
“She wants to be able to develop relationships in a way that simply has not been possible because of the declarations that have been in place”
Sir Mark added: “It is right that she should be given the maximum freedom that consenting to sexual relations is intended to bestow”
Whilst making these specific rulings in relation to sexual relationships, Sir Mark found that the woman still lacked the mental capacity to make decisions about other aspects of her life; that she still needed protecting under the auspices of care plans that would require further review in the context of the changes he had made in his ruling.
In this context, Sir Mark explained how the social workers involved in supporting the woman would need to decide whether the people she was having contact with were “appropriate” for her.
However, he clarified this need in the context of explaining that it was not his or a social worker’s job to ensure that the woman lived a “moral life”.
“It is not the function of the court (and) it is not the function of the local authority to ensure that (she) lives a moral life” Sir Mark set out. “That is her business. It is only the function of the court and the local authority to regulate who it is she comes into contact with”
“What they (social workers) may not decide is how she then behaves once that contact is authorised”
“That is for her and it is for her to make her own decisions for good or ill as to how she then conducts herself”