PS (Severe short term memory loss: Capacity to engage in sexual relations), Re [2024] EWCOP 42 (T2)

Judgment concerning capacity where PS, a 79 year old woman, has severe short term memory loss.

PS, who now lives in residential care, has a relationship with WP, an old childhood friend. It was common ground the relationship was sexual which they both wished to maintain. This judgment concerned her capacity in relation to having sexual relations as well as residence, care, contact and consumption of alcohol. A plan / protocol had been put in place by the LA to manage WP's visits which included a stipulation WP should not enter PS's bedroom so he could not be accused of rape or indecent assault. 

After reviewing the relevant law and expert evidence, HHJ Burrows looks at the risks around the relationship such as understanding the risk of STDs but also around memory loss and the ability to give and if necessary withhold consent. It was important in this case that WP can be trusted to behave appropriately so at [61] the judge concludes PS does have capacity but goes on at [62] to say 'the presumption or assumption of capacity only survives in the event that a proper protective care plan can be put in place' which he acknowledges will be challenging. 

Read the judgment on the National Archive