Woman with dementia should be allowed to have sex but can't marry, judge rules

Gabriella Swerling
·2-min read
Central Family Court
Central Family Court

A care home resident who has dementia should be allowed to have sex but cannot marry, a judge has ruled.

The 69-year-old woman, who cannot be identified for legal reasons, has become attached to a fellow resident at the care home she lives in.

However, while Mr Justice Poole said the woman is not mentally capable of deciding whether or not to marry the man, he ruled that she is able to make decisions about "engagement in sexual relations".

The judge, who is based in London, outlined his decision in a ruling published on Friday after analysing evidence at a recent hearing in the Court of Protection, where issues relating to people who might lack the mental capacity to make decisions for themselves are considered.

He said it was regrettable that delay in resolving the case had prevented the woman from "sharing intimacy" with the man.

Council social services bosses with responsibility for the woman's care had asked for rulings about what the woman was mentally capable of doing.

Mr Justice Poole, who also hears cases in the Family Division of the High Court, concluded that she lacked the mental capacity to make decisions about litigation, residence, care, financial affairs and property, and marriage.

He said evidence showed that she had "no idea" what would happen to money and property after any divorce, and did not appear to understand that divorce may bring about a "financial claim".

But he ruled that she did have the mental capacity to make decisions about "contact with others" and "engagement in sexual relations".

The judge said she had formed an attachment with a man in the care home and had "been consistent over many months" about her "desire to have sexual relations" with him.

Mr Justice Poole also considered a report from a psychiatrist, who had interviewed the woman.

The psychiatrist explained, in his report, that the woman had a "blunt conversational style".

He said he had apologised about asking "embarrassing questions" but the woman had told him, "just get on and ask me the questions..."

"I asked whether she thought she was at risk of becoming pregnant," said the psychiatrist.

"She laughed and said 'I'm too old. There's just as much a chance of him becoming pregnant as me', and laughed again."

The psychiatrist said the woman had demonstrated a basic understanding of the "nature and mechanics of sexual intercourse," and of consent.

He said she had demonstrated that she was aware of the risk of sexually transmitted disease.

"She said, 'I have never had it and I don't want it'," said the psychiatrist.

"Asked how she could protect herself, she said 'by not having it'.

"When asked what else could be done, she said, 'wearing a condom'."