An acquired brain injury (ABI) can happen to anyone. It doesn't discriminate and can occur following traumatic events such as strokes, illnesses or accidents. This can affect the injured person’s relationships, and capacity to consent to intimacy, marriage and cohabitation.
We spoke to our serious injury solicitor Georgina Moorhead, who specialises in supporting adults and children following a brain injury. She shares insight about what issues can arise when it comes to forming relationships and how we support our clients through this.
How The Law Protects Vulnerable People
Under Article 8 of the Human Rights Act, we all have a right to enjoy a private and family life. The need for relationships and intimacy is an essential part of most of our lives. For people living with an ABI, this can be far more complex.
The law states that people have capacity to engage in sexual relationships if they understand the physical context. They should understand the basics of the acts involved including the risk of pregnancy, sexually transmitted disease and the ability to say no at any stage.
The courts have consistently stressed that you can't use the Mental Capacity Act as a tool to infringe on a person’s freedom to make unwise decisions. As legal professionals our instinct is to act in our client’s best interests, but this can’t extend to stopping people from making decisions that we personally think are unwise.
Capacity To Consent To Relationships
Cognitive, behavioural and emotional changes are unique to each injury and will depend on the severity and location of the injury to your brain. No two injuries are the same, and so everyone's treatment plan and need for support is unique.
After a brain injury, many people can experience difficulties with concentration, memory, language and problem-solving skills. An injured person may also show signs of lacking restraint, impulsivity and impaired reading of social cues. These can all make it difficult to date or form romantic relationships, as well as the ability to fully comprehend issues such as safe sex and consent.
Georgina recalls how she helped a client who expressed interest in being in a relationship with someone. She said: “I recently represented a young man affected by a brain injury who showed impulsive behaviour which frequently overrode his ability to exercise caution or use appropriate dating behaviour.
His lack of capacity meant he had difficulty understanding and using appropriate online communication. He also showed inappropriate use of dating sites and was accessing inappropriate websites. He couldn’t consistently read social cues and adapt his behaviour or make decisions accordingly.
We arranged a specific capacity assessment and introduced protective measures to monitor and manage his risk from online activity. He also benefited from specialist brain injury support workers who he could openly discuss his online activity with, increasing his understanding of safety online. Ultimately, he did have capacity to date and enter romantic relationships, but there was a very clear need for support to enable him to do so safely.”
Capacity To Marry
Individual circumstances, level of injury and timing all need to be considered when assessing whether a person with a brain injury has the capacity to marry. A person who lacks capacity to manage their property and affairs may still have the capacity to marry.
Georgina recalls a case where the Court of Protection were asked to decide whether a man living with a brain injury had capacity to marry, despite having a financial deputy. He had an estate worth £1.5 million following a personal injury claim. The Judge said that capacity to marry requires a basic understanding of the marriage contract. It also discussed the legal test for the capacity to marry and ruled the assessment should look at the facts of the case, rather than any personal opinions. It ruled that:
- Marriage is status, not person specific
- Other people’s judgement on entering into a specific marriage shouldn’t be a deciding factor
- The person wishing to marry must understand the duties and responsibilities that attach to marriage
- They must not lack capacity to consent to sexual relations.
Ultimately, capacity to marry isn’t a welfare test and does not involve consideration of whether the marriage itself is a wise decision or likely to last.
Sharing A Home
Issues around capacity to cohabit and to marry came up for a young man with a brain injury who Georgina represented. She said: “Throughout the course of his claim, my client had a number of relationships within which certain consistent patterns of behaviour were evident. His relationships quickly became very intense, with him inviting partners to live with him within a matter of weeks.
“Once cohabiting, these relationships quickly became strained as my client was quick to propose the idea of marriage. When his relationships later broke down, we typically saw a period of ‘crisis’ in which he became heavily depressed, demonstrated risk taking, chaotic and violent behaviour and needed 24/7 support.
“We organised and implemented brain injury support and training for my client’s new partner to ensure that she better understood the impact and consequences of his brain injury and his resulting need for support.”
A Holistic Approach
An ABI can affect all aspects of a person’s lives. Our specialist serious injury solicitors are here to support you or someone you know to get access to the best medical care, rehabilitation and support. We also work with many charities that can support you to get your life back on track. Find out more about which organisations can support you and your family.