February 4, 2011
A man with a low IQ has been banned from having sex by a High Court judge who admitted the case raised questions about “civil liberties and personal autonomy”.
The 41 year-old had been in a relationship with a man whom he lived with and told officials “it would make me feel happy” for it to continue.
But his local council decided his “vigorous sex drive” was inappropriate and that with an IQ of 48 and a “moderate” learning disability, he did not understand what he was doing.
A psychiatrist involved in the case even tried to prevent the man being given sex education, on the grounds that it would leave him “confused”.
Mr Justice Mostyn said the case was “legally, intellectually and morally” complex as sex is “one of the most basic human functions” and the court must “tread especially carefully” when the state tries to curtail it.
But he agreed that the man, known only as Alan, should not be allowed to have sex with anyone on the grounds that he did not have the mental capacity to understand the health risks associated with his actions.
Under the judge’s order , the man is now subject to “close supervision” by the local authority that provides his accommodation, in order to ensure he does not break the highly unusual order.
The judge concluded: “I therefore make a declaration that at the present time Alan does not have the capacity to consent to and engage in sexual relations.
“In such circumstances it is agreed that the present régime for Alan's supervision and for the prevention of future sexual activity is in his best interests.”
It is the latest controversial case to come before the Court of Protection, a little-known authority whose proceedings are held behind closed doors.
Under the Mental Capacity Act 2005, its judges have the power to make life or death decisions for people deemed to lack the intelligence to make them for themselves – such as ordering that they undergo surgery, have forced abortions, have life-support switched off or be forced to use contraception.
In the latest case, the man known as Alan was described as “sociable” and “presented as an able man” but who was “seriously challenged in all aspects of his mental functionality”.
He lived in a home provided by the council, where he developed a sexual relationship with a man called Kieron by the court. Alan was also accused of making lewd gestures at children in a dentists’ surgery and on a bus, although no police action was taken.
In June 2009 the town hall began court proceedings to restrict his contact with Kieron on the grounds that he lacked mental capacity, and an interim order was made to that effect.
“Since then Alan has been subjected to close supervision to prevent any further sexual activity on his part,” except when he is alone in his bedroom.
However he told representatives of the Official Solicitor, who acts in the Court of Protection, to tell the judge “I want to kiss them again”.
Mr Justice Mostyn highlighted the fact that the court cannot prevent people from merely making “unwise” decisions, and that a simple test can be carried out to see if a person is capable of consenting to sex based on the act itself rather than the proposed partner.
The judge said it requires an understanding and awareness of the “mechanics of the act”, “that there are health risks involved” and that sex between a man and a woman may lead to pregnancy.
He said that the psychiatrist thought Alan “believed that babies were delivered by a stork or found under a bush”, and that “sex could give you spots or measles”.
On that basis the judge ruled that Alan did not have the capacity to consent to sex, but also ordered that the council should provide him with sex education “in the hope that he thereby gains that capacity”.