A brain-damaged woman had the capacity to decide whether to have sex, despite her family insisting otherwise, an appeal court has ruled.
The woman has been at the centre of litigation in the Court of Protection over whether she has the mental capacity to make decisions about having sexual relations.
The three Court of Appeal judges also concluded that courts could make general evaluations about the capacity of disabled people to make decisions about sex.
They said it would be impossible for a court to conduct an assessment every time a disabled person, whose capacity to consent to sex was questionable, showed an interest in having a sexual encounter.
The Court of Appeal upheld a ruling by a High Court judge sitting in the Court of Protection, following a challenge by the woman’s mother.
Mr Justice Peter Jackson ruled that the woman, who is in her 40s, had the capacity to make decisions about sex.
He said she had been sexually active before suffering a brain injury, understood the 'rudiments of the sexual act' and had a basic understanding of contraception and of the risks of sexually-transmitted diseases.
The woman’s mother argued that he had been mistaken.
Judges said the woman could not be identified.
'In our view there is no substance in the criticism of the judge’s conduct of the hearing,' said Sir Brian Leveson, the most senior judge on the appeal panel. 'We dismiss the appeal.'
Sir Brian, president of the Queen’s Bench Division of the High Court, said it was right that people did not consent to 'sex in general' but to an act of sex with a particular person at a particular time.
And he said the focus of the criminal law was always on a specific sexual event.
But he added: 'The fact that a person either does or does not consent to sexual activity with a particular person at a fixed point in time, or does or does not have capacity to give such consent, does not mean that it is impossible, or legally impermissible, for a court assessing capacity to make a general evaluation which is not tied down to a particular partner, time and place.
'Going further, we accept the submission made to us to the effect that it would be totally unworkable for a local authority or the Court of Protection to conduct an assessment every time an individual over whom there was doubt about his or her capacity to consent to sexual relations showed signs of immediate interest in experiencing a sexual encounter with another person.
'On a pragmatic basis, if for no other reason, capacity to consent to future sexual relations can only be assessed on a general and non-specific basis.'
Judges said the woman suffered a brain injury during surgery more than three years ago.
Litigation started after concerns were raised about a man she had been involved with.
They said the man had a 'significant criminal record' for inappropriate behaviour and the woman’s mother had made various allegations against him.'
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