Dating and Sexual Relationships

The law states that people have capacity to engage in sexual relationships if they understand the physical context. In other words, they should understand the basic mechanics of the acts involved, the risk of pregnancy or sexually transmitted disease and the ability of either party to say no at any stage.

In the context of serious injury litigation, we commonly encounter Claimants who have a strong desire for romantic relationships.

Unfortunately, the cognitive issues they face, which often include difficulty concentrating, poor memory, poor language skills and reduced problem- solving abilities, in addition to disinhibition, impulsivity and impaired reading of social cues, can present significant challenges in both dating and forming romantic relationships.

Cognitive impairments can also impact an individual’s ability to fully comprehend issues such as safe sex and consent.

For professionals involved in such cases, it is crucial to respond by sourcing appropriate support in order to maximise an individual’s capacity to engage in dating safely, whether in person or online.

I recently represented a young man affected by many of these issues. He had a strong desire to be in a relationship but exhibited impulsive behaviour which frequently overrode his ability to exercise caution or appropriate dating behaviour.

His lack of capacity manifested in him having difficulty understanding and utilising appropriate online communication, inappropriate and excessive use of dating sites and accessing inappropriate websites. He was also unable to consistently read social cues and adapt his behaviour/ make decisions accordingly. For all these reasons, the Claimant was considered to be at risk online.

We therefore arranged a specific capacity assessment, following which protective measures were introduced and input was arranged to help monitor and manage my client’s risk from online activity.

He also benefited from input from brain injury specialist support workers with whom he was able to openly discuss his online activity and increase his understanding of the need for him to exercise caution. Ultimately, he had capacity to date and enter romantic relationships but there was a very clear need for support to enable him to do so safely.

In this case, I worked closely with Irwin Mitchell’s Court of Protection team, who appointed a property and financial Deputy for my client.

Katie Strong, a partner in Irwin Mitchell’s Court of Protection team explains that: “Capacity is decision specific and so over time, the level of support and supervision will be kept under review and reduced in the event my client regains capacity in this area.  As well as the specialist support team, we have instructed a neuropsychologist to monitor the client’s capacity and provide support to him as well as his support team in managing the risks.”  

Considerations in Litigation

We are all familiar with the presumption of capacity under the Mental Capacity Act 2005. In serious injury litigation involving brain injured individuals in particular, complex issues often arise when we are acting for clients who have been placed in a vulnerable position (through no fault of their own) and their ability to make reasoned, informed decisions simultaneously reduced.

Such cases inevitably prompt legal professionals to think ‘outside the box’. For example, does an individual require subscriptions for dating agency sites, psychological support or professional IT support to assist in the management of online risk? Does the Case Manager need to act as an intermediary with dating agencies? Is there a role for support workers? There is no ‘one size fits all’ approach and, as always, cases should mould around the individual involved and their particular circumstances.

For example, if a client demonstrates a desire to be in a long- term relationship and to have children, the legal team should consider obtaining expert evidence which addresses the need for any future support that may be required with childcare, both in the context of a successful relationship and relationship breakdown.

An assessment of how well they may manage the end of a relationship and cope with the emotional and psychological challenge may also impact their future care needs, and we may need to prompt our care experts to include additional future contingency care during such periods.

Ultimately, the Courts have consistently held that the requisite standard for capacity to consent to sexual relationships and marriage is deliberately not a high one. We cannot prevent our clients from making decisions we consider to be unwise but we do have several tools at our disposal to protect and support whatever capacity they do have. Our role is to ensure that our client is able to maximise their independence so far as possible.

Read part 2 of this article series – exploring issues regarding capacity to cohabit and marry in more depth.