Court of Protection to Rule on Capacity For Sexual Consent

Social services officials have asked the Court of Protection (CoP) to rule on whether a man should no longer be allowed to have sex with his wife of 20 years, as they consider she is losing the capacity to give sexual consent.

The woman in question receives care on account of learning difficulties, with those responsible for her care saying that there is evidence her mental health may have deteriorated in recent months.

At the preliminary hearing for the case in March, Mr Justice Hayden indicated that due to the complexity of the case he would need to examine the evidence further, adding that he would like to hear arguments on behalf of all three parties – the woman, her husband and the council – before arriving at a decision. If it is determined that the woman is no longer able to consent to sexual activity, her husband – who has offered to give an undertaking not to engage in sexual activity with his wife – would potentially face a prison sentence should he breach an order on sexual consent.

Judge criticised for terming marital sex “a fundamental right”

Whilst the full hearing for the complex case has not yet begun, the presiding Mr. Justice Hayden has already faced a backlash for comments made in the preliminary hearing.

Speaking on the husband’s right to have his case “properly argued,” the judge stated:

“I cannot think of any more obviously fundamental human right than the right of a man to have sex with his wife.”

These comments from Mr. Justice Hayden – who is currently vice-president of the Court of Protection – attracted criticism from both charities and politicians, with one commentator terming the statement “terrifying.”

Labour MP Thangam Debbonaire lamented that such comments coming from a senior member of the judiciary served to “legitimis[e] misogyny and woman-hatred.”

Meanwhile, Labour MP for Birmingham Yardley Jess Phillips similarly condemned the statement, underlining that marital sex was “not even close to a right.”

The Victim Support charity also took issue with the judge’s words, with a spokesperson stating:

“Whatever the circumstances, no one has the right to have sex with you without your consent.”

Under English law, a man having sex with his wife without her consent is classed as marital rape, an offence which was explicitly deemed illegal in 1991, and is treated as an offence of rape like any other in the criminal justice system.

Court of Protection ‘coming of age’

Created by section 45 of the Mental Capacity Act 2005, the Court of Protection is a relatively recent institution entrusted with the jurisdiction to make legal decisions on the behalf of those who lack the mental capacity to do so for themselves, particularly in relation to issues of welfare and finance. The responsibilities of the court include deciding whether a person has sufficient mental capacity to make a particular decision and appointing deputies or granting lasting power of attorney for others to act on the behalf of those without mental capacity.

Since its creation, the court has become increasingly popular – a phenomenon which Justice Hayden has attributed to the increasingly complex, technologically advanced society in which we live – with the annual number of CoP applications totalling 31,332 in 2017. The court’s hearings are generally open to the public, but the identity of those involved in cases are protected by a transparency order as well as strict restrictions on media reporting.

The court’s vice-president has said in the past that the CoP was bound to “come more and more into the public eye” as society progresses, and resolved last year that it is time for the court to “come properly of age and be a senior court of record.”

Contact IBB's Court of Protection solicitors today

IBB Solicitors has niche expertise on applications to the Court of Protection and three of our solicitors are members of the Court of Protection's panel of professional deputies. For advice, contact a member of the Wills, Trusts and Probate team, call us on 03456 381381 or email enquiries@ibblaw.co.uk.