William Eichler 26 March 2020

Court finds woman has capacity to decide about contact with husband

The High Court today ruled that a woman with a relatively rare form of dementia has the capacity to make decisions for herself when it comes to her husband.

The judgment, handed down at the Court of Protection which was sitting in the High Court, also said that she lacked the capacity to make certain decisions for herself, including about her contact with people who are not her husband.

The ruling follows a one day hearing during which the court heard that a married woman with complex health and social care needs – known only as SF – had allegedly been sexually exploited by a man who visited her home while her husband was at work.

The case was brought by an unnamed local authority in Yorkshire which called on the court to make decisions as to whether the woman had the mental capacity to consent to sexual relations.

Experts involved in the hearing said that while her deteriorating condition means her ability to understand and appraise her own emotions and the non-verbal cues of persons she does not know, is impaired, she still has a level of knowledge, appreciation and understanding of her husband which she uses to make decisions about her relationship with him.

In a report produced by Dr Rebecca O’Donovan, a consultant forensic psychiatrist, who was instructed by both the local authority and official solicitor, it was revealed that the woman showed signs of going along with things regardless of whether she was comfortable or happy to do so,

However, Dr O’Donovan said, as the woman has historically been a passive person, it was difficult to determine whether her presentation was down to her personality or due to her dementia.

While the report found that the woman struggled to make decisions regarding her contact with others, her husband was a different matter as, using knowledge from her past, she could read his body language and make informed decisions about her relationship with him, which she could not do with people she had just met or did not know so well.

Speaking of today’s judgment Caroline Hurst from the law firm Simpson Millar, who was instructed by the Official Solicitor to represent SF throughout the case, said: ‘This is an important ruling which unusually differentiates the ability of a person who does not have the capacity to make informed decisions about their contact with someone who they have a history with, from those they do not.

‘While SF’s condition will need to be carefully monitored in order to ensure that the authority is acting in her best interests moving forward, for now, the judgment recognises that she can make an informed choice with regards her relationship with her husband, even if she is not able to do so with others.

‘This by no means sets a precedent for other individuals in similar circumstances. What it does is provide clarity in so far as each case must be considered with their own set of unique circumstances in mind.’

The case, which was bought by the local council, sought clarity on the protection that she required given her complex health and social care needs – including a diagnosis of frontal lobe dementia – amid concerns that she may have been subjected to alleged sexual exploitation by a man who visited her home while her husband was at work.

As part of the judgment Mr Justice Cobb said that it was in her best interest to continue living with her husband without restriction, but that she should continue to receive assisted care during the day to protect her from further potential exploitation.

Due to the deterioration of condition linked to her frontal lobe dementia it has been determined that a further review of the woman’s capacity will be necessary, and a further assessment and review hearing will follow.

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