Free tool to assess capacity from BiLD.
Supported Loving toolkit
Capacity to engage in sexual relations
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Here at Supported Loving, one of our most frequently discussed topics is mental capacity regarding sex. Staff are often uncertain about this topic and this page aims to provide clarity.
Introduction
This page covers one of the most talked about areas regarding sex and intimate relationships… the dreaded C word…capacity.
‘Most people faced with the decision whether or not to have sex do not embark on a process of weighing up complex, abstract or hypothetical information. There is a danger that the imposition of a higher standard for capacity may discriminate against people with a mental impairment.’ Justice Baker (2013)
Imagine if our own sexual and relationships choices faced the same level of scrutiny as the people we support?
The Mental Capacity Act (MCA) was designed to protect and empower people who may lack the mental capacity to make their own decisions about their care and treatment. It applies to people aged 16 and over. The MCA says:
- assume a person has the capacity to make a decision themselves, unless it's proved otherwise
- wherever possible, help people to make their own decisions
- do not treat a person as lacking the capacity to make a decision just because they make an unwise decision
- if you make a decision for someone who does not have capacity, it must be in their best interests. Sex is an excluded decision and it can never be decided in a person’s best interest to have sex.
- treatment and care provided to someone who lacks capacity should be the least restrictive of their basic rights and freedoms.
Understanding the two-stage test for capacity
The Mental Capacity Act (MCA) uses a two-stage test to assess a person’s capacity:
- At the time that the person needs to make a decision, is there an inability to make that decision?
- Is this inability to make the decision because of an impairment or disturbance in the functioning of their mind or brain?
This test must always focus on the person and the specific decision they are making. However, recent legal cases, like A Local Authority v JB, highlight the importance of looking at the cause of the inability to make a decision, what’s known as the "causative link." Essentially, if someone can’t make a decision, you need to ask: is this because of their impairment, or could there be another explanation?
When using the two-stage test, avoid seeing it as a rigid checklist. Instead, think about the person in front of you and whether their difficulty making a decision directly links to their impairment or if other factors, like a lack of information or support, could be involved. For example:
- Have they had enough accessible education or support to understand the decision?
- Are there environmental or communication barriers affecting their ability to decide?
- Are there any social or cultural reasons why they might be finding it difficult to make a decision or communicate
Assessing capacity surrounding sex and relationships can cause anxiety for assessors. Staff fear that if people do anything remotely intimate without a mental capacity assessment they will in trouble, resulting in many inappropriate referrals to safeguarding for consensual sexual activity.
We will look at the key issues regarding capacity and sexuality and how to address them.
What are the most common challenges faced in this area and how best to support people to overcome them?
Not knowing what to assess – Training frequently highlights that the majority of staff are uncertain as to what needs to be assessed when exploring if a person has the capacity to engage in sexual activity. People often think you need to know a lot more than you do. Justice Mumby who set out the original criteria “set the bar low”, meaning to keep it as simple as possible, as he felt sex was a fundamental aspect of being human and that the test should not be overly complex. To have capacity for sexual relations a person needs to understand:
- the mechanics of the sexual act and its character (what is sex - depending on the type of sex you might be having)
- the reasonable foreseeable consequences of sexual intercourse – namely pregnancy (if this is heterosexual sex involving a female of child baring age)
- that there are health risks involved in sexual relations (basic knowledge of STIs/sex can potentially make you unwell)
- that you have the right to say no and can communicate this
- that the risks of STIs can be reduced by taking precautions such as condoms
- the other person must have the capacity to consent to the sexual activity and must consent before & throughout the sexual activity - if not, then this is committing rape or sexual assault.
D Borough Council vAB (2011) EWHC 101 (COP)
London Borough of Southwark v KA & Ors (2016) EWCOP 20
B v a Local Authority [2019] EWCA Civ 913
A Local Authority v JB (Rev 1) [2020] EWCA Civ 735 on BAILII
An assessment will usually be on a ‘generalised forward looking basis’, ie without reference to a specific (actual or prospective) sexual partner. However, there may be situations where the question is person-specific, for example, in a long-term monogamous relationship where one partner develops dementia. Then parts of the generalised test can be removed if they are not applicable.
When assessing capacity, if there is something unusual about the case, you may need a specific question relating to the sexual act.
Not understanding it’s about sexual relations – Capacity assessments are for concerns regarding a person’s ability to engage in a sexual relationship. The test for capacity with respect to sexual relations does not apply to other expressions of affection such as kissing or being in a non-sexual relationship. People typically do not need assessments for this, but they must give their consent. We should always have written notes of how a person communicates consent and how we would know if they were not consenting.
Not understanding the role of education - A capacity assessment where a person is labelled as “lacking capacity to engage in sexual activity” with no attempt to provide education to help them gain capacity is incorrect. It would be like someone can’t drive without ever giving them a lesson. Everyone should be provided with sex education that they understand to be able to make an informed decision, and cannot be deemed to lack capacity without this, see the educational resources available on our webpage. People have a right to receive information in a way which is accessible to them to be able to make decisions.
Not understanding the urgency - Imagine we met a partner and wanted to follow our natural instincts and have sex… but we were found to lack capacity and had to wait a year to receive sex education. It’s unacceptable, but sadly not a rare occurrence. A man was awarded £10,000 (plus costs) from a local authority for such a delay. Education must be provided as a matter of urgency.
Watch Prof. Claire De Than's webinars on people's legal rights surrounding sex and relationships.
Join 39 Essex Chambers for a webinar on the case of (ZX: Capacity to Engage in Sexual Relations) [2024] EWCA Civ 1462. Victoria Butler-Cole KC and Francesca Gardner covers the ruling, its implications, and the challenging issue of capacity to engage in sexual relations, which raises important legal and ethical questions.
Do...
- assess each decision separately
- have a good understanding of how the person communicates, so you are best able to communicate with them in the capacity assessment
- be aware of changing case law in this area which impact on what needs to be assessed
- make sure people have had the information they need to be able to make an informed decision (Relationships and Sex Education).
Don't...
- be afraid to refer to the Court of Protection if the case is complex, borderline or the person disputes the decision
- delay conducting an assessment – people’s lives are on hold while this happens
- stop a person having any form of relationship just because they lack capacity for sex. Relationships are still worthy and fulfilling without this.
Case study
Juri is a 25-year-old man with a learning disability. After watching a programme showing two men having sex, Juri tells his staff that he has a boyfriend called Matt who he likes very much. Juri met Matt at a club for adults with learning disabilities, that he goes to independently. When asked what he and Matt like to do together as boyfriends, Juri says they like to kiss, dance to the slow songs and he also enjoys it when Matt touches his penis when they go to the toilet, so Matt's staff can't see them. Staff tell his social worker that they have spoken to Juri about sex, but they don’t think he really understands as he has no knowledge of STIs. They also raise a safeguarding regarding Matt, who they don’t know, in case he potentially lacks the ability to consent. Staff have stopped Juri from going to the club and from seeing Matt and he is very unhappy about this.
How to support the person
- Juri (and potentially Matt) require a capacity assessment, as soon as possible, to determine if Juri lacks capacity with regards to sex – remember this needs to reflect the activities he is engaging in. As Juri is having sexual relations with a man, he does not need to understand about pregnancy, but would need to understand consent, (his and Matt’s), protection from STIs and what sex involves.
- All practical steps should be taken to assist Juri to make the decision, such as sex education, in a way he understands and is relevant to the sex he is having.
- Matt and Juri may benefit from receiving education together as a couple, which can be explored.
- While the assessment/RSE is taking place or if it is established that either Juri (or potentially Matt) lack capacity, staff need to support Juri to maintain his relationship and a level of intimacy with Matt.
- If, after receiving RSE, Juri (or Matt) lack capacity to consent to sex, but he still wishes to continue his sexual relationship, then an application to the Court of Protection may be necessary. If a person lacks capacity, but is having sex, this is classed as rape or assault under the Sexual Offences Act. The local authority (and social care providers) will have to take steps to remove opportunities for sexual contact.
Top tips
- Be sure you know what you are assessing and how you are going to do this. Do you need resources etc?
- Have resources which are meaningful and understood by the person, based on how they communicate.
- Remember, just because someone has an ‘impairment of their mind or brain’ – it doesn’t mean they will lack capacity to consent to sexual relations.
- Or if someone lacks capacity at this time, it doesn’t mean that they won’t be able to gain this via education.
- Remember to seek legal advice if the case has the potential to go to the Court of Protection (if it is borderline/the person disputes the outcome and/or if it is complex).
The views expressed in the Supported Loving toolkit are not necessarily those of Choice Support.
Resources
BILD Capacity Assessment Tool
39 Essex Chambers Mental Capacity Guidance
Guidance for social care professionals around the law and principles relating to assessing mental capacity.
Easy Read Guide to Sexual Consent
Available from Change and SARSAS (Bristol).
My Body My Choice
Created by My Life My Choice, a booklet if you want to find out more about consent.
Consent Film by SignHealth
Watch this video by on non-verbal consent by SignHealth
Mental Capacity Law, Sexual Relationships, and Intimacy
This collection gathers insights from academics, practitioners, and organizations to explore these challenges and discuss future directions for law, policy, and practice. Buy Here
Mental Capacity Act Code of Practice
Mental Capacity Act Code of Practice giving guidance for decisions made under the Mental Capacity Act 2005.
Sexual Consent Animation- Informing Choices
Watch this video by Informing Choices Northern Ireland about sexual consent
Consent in Relationships
A guide to consent in relationships for adults with learning disabilities by People First Merseyside
Supported Loving toolkit
The Supported Loving network has produced a series of guides to help support people with issues surrounding sexuality and relationships.
Read more
What is Supported Loving?
For some people finding love is often more than just chemistry – it can come down to getting the right support
Read more
Supported Loving network
Supported Loving is not a formal membership organisation. Anyone can take part, it is free.
Read more