Pregnancy and brain injury
As I approach the start of my maternity leave, issues surrounding pregnancy and birth are constantly on my mind. This has also made me think a bit more about the additional challenges that brain injury survivors may have to overcome when considering similar issues.
An injury to the brain can effect a number of different aspects of one’s life including one’s ability to consent to sexual relations, the actual physical ability to have sexual relations and reproduce, as well as the emotional and behavioural effects of doing so.
The following issues are common to both male and female brain injury survivors and can impact on sexual relations:
Physical effects:
- Problems with balance and dizziness
- Fatigue
- Hormonal problems
- Weakness or paralysis on one side
- Communication problems
Cognitive effects:
- Memory problems
- Lack of insight
- Difficulties with making decisions
Emotional and behavioural effects:
- Depression
- Emotional lability
- Loss of self-esteem
- Impaired empathy
- Lack of inhibition
Although the issue of decision making is universal to both men and women, it also has a specific interplay with the legal framework which must be considered by brain injury survivors and those involved in their care.
The Court of Appeal in A Local Authority v JB [2020] EWCA Civ 735 recently reviewed the functional test for mental capacity in the specific context of capacity to consent to sexual relations. It was held that for ‘a decision whether to engage in sexual relations, the information relevant to the decision may include… the fact that the other person must have capacity to consent to the sexual activity and must in fact consent before and throughout the sexual activity’.
Previous case law on this point did not take into account the ability to understand the importance of a partner consenting to such relations. This Court of Appeal judgment therefore sets a higher threshold to be met for those lacking capacity to be able to decide whether they can engage in sexual relations. It is likely that further judicial comments will be sought on this issue as the general public, carers and even local authorities will require guidance on care planning on this subject.
If mental capacity is however not an issue for our clients, there is still a myriad of other factors, such as those listed above, which must be considered when contemplating having sexual relations or becoming pregnant or becoming a parent to a child.
As lawyers specialising in brain injury cases, we have come across these issues in the past and have learned that the best way to deal with them is to speak to our clients, and if necessary speak to their families and case managers (if our clients have one). We may also have to consider the possibility of further external help, including having a multidisciplinary team meeting with the assistance and support of a neuropsychiatrist and neuropsychologist.
The brain injury charity, Headway, also have a number of publications that we/our clients can refer to for further support including:
