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Friday, 18 August 2017

Down's Syndrome man to get £10,000 as council tells wife to stop sexual activity with him

Written by Brian Farmer

A 38-year-old Down's Syndrome sufferer is to get more than £10,000 compensation from a council after his wife was told to stop having sex with him.

Council staff wrote to the woman warning that her that she could be committing a crime if they had sex because he did not have the mental capacity to consent, a judge heard.

The woman moved into a separate bedroom and "significantly reduced any physical expressions of affection" in order "not to lead him on", Sir Mark Hedley was told.

Detail of the case emerged in a written ruling by the judge following a hearing in the Court of Protection - where issues relating to people who lack the mental capacity to make decisions are analysed - in Leeds

He said the couple, who married seven years ago, could not be identified and he has not named the council.

A psychologist had said the man needed a "course of sex education" to help him "achieve the necessary capacity", the judge heard.

But council staff, who had welfare responsibilities for the man, had taken nearly 18 months to set up the course.

Council bosses had apologised for the delay in providing the "sex education to which he was entitled".

Sir Mark (pictured) said they had agreed to pay £10,000 damages and pick up some of the man's legal bills.

He said a relative had taken legal action on the man's behalf - a year after the woman was told to stop having sex - asking a judge to order council bosses to "implement" the sex education course.

The judge indicated that the relative would have responsibility for managing the man's compensation.

Sir Mark said council staff had intervened after the couple sought fertility treatment about three years ago.

A psychologist had assessed the man following the couple's fertility treatment request.

The specialist had concluded that the man lacked the mental capacity to consent to sex.

Council staff had then written to the couple.

"(His wife) was advised that she must abstain from sexual intercourse with (him) as that would, given (his) lack of capacity to consent, comprise a serious criminal offence," said Sir Mark.

"(She) had reasonably understood from the local authority that should she fail to comply, safeguarding measures would be taken which would require the removal of (him) - or herself - from their home.

"The parties did indeed comply and (she) moved into a separate bedroom."

Sir Mark added: "In order not 'to lead him on', she significantly reduced any physical expressions of affection."

He said when the letter arrived, the couple had been married for about five years and had "enjoyed normal conjugal relations".

The judge said the man could understand why his wife had moved into a separate bedroom and added: "The impact of all this on (him) is not difficult to imagine."

Sir Mark said it had not been possible to find reports of "any close, let alone exact" cases.

But he said he had concluded that the council's £10,000 offer was a "fair outcome" and in the man's best interests.

The man had been represented by a senior barrister, Bridget Donlan QC, who had asked the judge to approve the council offer.

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