Thursday, 24 August 2017

Down Syndrome man awarded damages

[Small Places]

"Last month Mr Justice Hedley, sitting in the Court of Protection, handed down a judgment in an important case concerning the responsibilities of local authorities to provide people assessed as lacking the mental capacity to consent to sex with appropriate sex education. In CH v A Metropolitan Council, Hedley J approved an award for damages under the Human Rights Act 1998 (HRA) from a local authority to a 38 year old man with Down Syndrome, for failing to provide him with a course of sex education after it was recommended by a psychologist who had assessed him as lacking the mental capacity to consent to sex."

"The case is important under the Mental Capacity Act 2005 (MCA) because it confirms that in tandem the HRA it can give rise to positive obligations to take steps to enhance a person’s ‘mental capacity’ to make particular decisions, and if local authorities (or other public bodies) fail to do so they may be liable in damages. But the case is also important for the light it shines on the ‘price of protection’ paid by those whose mental capacity to consent to sex is called into question."

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