Part 21 Consent to having sex
Sexual behaviour can be tricky for workers and families to deal with: it can be hard to separate moral judgements about what people should do from their ability to decide what they want to do and then hard to separate their capacity to consent from what they actually consent to.
The law is clear – someone’s capacity to make the decision to engage in sexual behaviour needs to be assessed separately from any other assessments of their capacity.
There may need to be separate assessments for different types of sexual behaviour. Examples of sexual behaviour could include sexual intercourse (penetrative or not; heterosexual or homosexual); mutual masturbation, being filmed or photographed while engaging in sexual behaviour, viewing pornography, kissing, cuddling or fondling in a sexual way. This list is not exhaustive.
No best interests decision can be made about having sex – we can’t decide that someone should have sex. (MCA Code of Practice 1.10)
It may be appropriate to decide that someone lacks capacity to decide to have sex and then it may be appropriate to stop them from doing so. It may be the role of staff to consider if someone who has capacity to make this decision is actually consenting to the sexual activity in which they are engaging.
We need to be clear whether someone can understand enough to make their own decisions. If they do not have capacity to make this decision they must be stopped from engaging in sexual acts to which they cannot consent.
Recent judgements (D Borough Council v AB  and A Local Authority v H ) indicate how someone’s capacity to make this decision should be assessed. The person needs to understand:
- how to have sex – what to do
- the possible consequences in terms of pregnancy
- the risks of sexually transmitted infections.
This is a low level of capacity and many people will meet these criteria; they can then go on to make decisions. Their decisions need to be respected. Making unwise decisions about sex does not indicate a lack of capacity to make the decision
It is then necessary to consider whether the person is consenting to the sexual act in question. For instance if someone is confused and believes they are having sex with their spouse who actually died years ago they would not be able to consent to the present relationship: they are not consenting to have sex with the right person.
Some people may be vulnerable to pressure to consent to sex or to sexual exploitation. All services need to be aware of this risk and to support and protect people as appropriate.
The Court of Protection has been clear that if someone doesn’t have capacity it is the duty of service providers to provide them with education and support to try to enable them to gain capacity, if this is appropriate for the individual.
Until someone has gained this capacity they cannot decide to have sex and we need to put in place whatever protections they need. It is the responsibility of the service provider to prevent the person engaging in sexual behaviour. If this is not done, the service is allowing rape or sexual assault. This may mean extra staffing or support in a residential home or hospital to restrict contact between people. There are recent cases where the Deprivation of Liberty Safeguards have been used to prevent someone who doesn’t have capacity from having sex to which they cannot consent. This should be explored if appropriate. (Part 32: Deprivation of Liberty Safeguards)
Some sexual behaviour engaged in without any else can pose significant risks, such as auto erotic strangulation. If someone may lack capacity to make the decision to engage in this potentially fatal behaviour their capacity will need to be assessed and it may be necessary to take measures to prevent them from doing this.
Illegal sexual activities, such as bestiality or incest should be dealt with through the police or safeguarding processes: the MCA does not apply.