When capacity for contact and sex do not align: Pragmatic decisions and judicial work-arounds

To my mind, the need for judges to adopt creative or pragmatic approaches to reach decisions they feel comfortable with indicates that the state of the law is less than satisfactory. Based on this case and the KF case, it sounds as though this is the direction that decisions about capacity to engage in sexual relations may now be headed: a finding of capacity on a general basis, but with the opportunity for reconsideration where specific individual risks arise.

A ‘hypothetical’ marriage and a snowball rolling downhill

There was a plan to provide sex and relationship education,  but the COVID-19 pandemic and a failure to locate educational providers intervened and so it was sometime later when an education programme to support capacity in relation to sex and marriage was completed. A newly appointed expert then assessed P again and said that P had still not gained capacity in these areas. 

“The parties should work together and not rush to court in a litigious way. It is not ready to be heard”: Reflections from a Best Interests Assessor

By Eleanor Tallon, 31st August 2022 As an experienced Best Interests Assessor (practising within the legal framework of the Deprivation of Liberty Safeguards), I have an avid interest in the Open Justice Court of Protection Project which is aligned with my passion to promote human rights.  I find that both reading the reflective blogs and participating as an observerContinue reading “The parties should work together and not rush to court in a litigious way. It is not ready to be heard”: Reflections from a Best Interests Assessor

Reflections from a social worker on a case about capacity for sex: Hull City Council v KF

A key part of effective social work practice is being able to form open and trusting relationships with service users – relationship-based practice can facilitate more effective communication, allowing for transparency and a person-centred approach. Conflict often arises when outcomes don’t match a service users wish, creating a strain on the relationship. One way to rebuild this relationship is to keep the service user informed, ensuring they are aware of decisions being made and the reasons for them.

Capacity to have sexual relations with a specific partner: In the matter of Hull City Council v KF [2022] EWCOP 33

By Aisling Mulligan, 15th August 2022 As a barrister practising in Public Health Law in Ireland, I am familiar with the vulnerable client and the myriad complex questions that come before Courts. Ireland is due to commence the Assisted Decision Making (Capacity) Act 2015 (the 2015 Act), which creates a framework for supporting decision making where aContinue reading “Capacity to have sexual relations with a specific partner: In the matter of Hull City Council v KF [2022] EWCOP 33”

Determining capacity for sex with her abuser

By Celia Kitzinger, 25th July 2022 UPDATE: We’re sad to learn (from Mr Justice Poole on Thursday 27th October 2022) that the woman at the centre of this case (KF) has recently died. This is a desperately sad story about a woman (KF) who is pleading to have intimate unsupervised contact with her abuser before she dies[1].  Continue reading “Determining capacity for sex with her abuser”

“Grave concerns”: Funding arrangements, capacity for sex, and a TZ-style care plan

By Celia Kitzinger, 13th July 2022 The protected party at the centre of this case (COP 13627568 before DJ Glassbrook sitting in Northampton on 8th July 2022[i]) was described as “ a 19-year-old lady with diagnoses including Mild Learning Disability. Mixed Disorders of Conduct and Emotion, and Reactive Attachment Disorder of childhood”.   Introducing the hearing for the benefitContinue reading ““Grave concerns”: Funding arrangements, capacity for sex, and a TZ-style care plan”

Challenges in observing a (remote) hearing at Swansea Civil Justice Centre: Capacity for contact and sexual relations

By Celia Kitzinger, 6th May 2022 I had no idea what this hearing would be about.  I picked it at random because I had an hour free at 10am on the morning of Friday 22nd April, and thought I could profitably use it to perform my civic duty of supporting open justice in the Court of Protection.   Here’sContinue reading “Challenges in observing a (remote) hearing at Swansea Civil Justice Centre: Capacity for contact and sexual relations”

Absconded

The tension is between, on the one hand, P’s autonomy and freedom, and on the other keeping her safe from harm. As Ben McCormack put it, “she’s been locked up for her own good, but she doesn’t like it”

Capacity to engage in sex: Putting the MCA’s foundational values to protect and empower to the test

By Samantha Williamson, 18th March 2022 Most of us couldn’t begin to imagine being told (as adults) that we are prohibited from spending private time with our chosen partner – and that we cannot be allowed to have sex with them. That’s been the case for 19-year-old T and her 25-year-old boyfriend since 19th November 2021.  Continue reading “Capacity to engage in sex: Putting the MCA’s foundational values to protect and empower to the test”