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.
What is mental capacity?
This page covers one of the most talked about areas regarding sex and 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 sexual and relationship 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. However if you have concerns it is necessary to investigate
- 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 interest. 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.
The MCA sets out a two-stage test of capacity:
- Does the person have an impairment to their mind or brain?
- Does the impairment mean the person is unable to make a specific decision when they need to? Mental capacity can also fluctuate with time – someone may lack capacity at one point in time, but may be able to make the same decision later on. The MCA says a person is unable to make a decision, if they cannot:
- understand the information relevant to the decision
- retain that information
- use or weigh up that information as part of the process of making the decision.
This is the topic in the area of sex and relationships which causes staff the most concern. Staff fear that if people do anything remotely intimate without a mental capacity assessment they will be 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 – when delivering training I ask participants what a person needs to know in order to be considered to have the capacity to engage in sexual relations. I rarely get a correct answer. People often think you need to know a lot more than you actually do. Justice Mumby, who outlined the original criteria, "set the bar low" as he felt sex was a fundamental aspect of being human and the test should not be overly complex. Current case law states, in order to have capacity for sexual relations, a person needs to understand:
- the mechanics of the sexual act and its character
- the reasonable foreseeable consequences of sexual intercourse – namely pregnancy
- they can say yes or no to having sexual relations and are able to decide whether to give or withhold consent
- that there are health risks involved in sexual relations ie have a basic knowledge of Sexually Transmitted Infections (STIs). That sex can potentially make you unwell, and understand that these risks 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 and throughout the sexual activity - if not, then this is committing rape or sexual assault.
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 concern regarding a person’s capacity to engage in sexual relations. The test for capacity with respect to sexual relations does not apply to other expressions of affection such as kissing. People typically do not need assessments for this, but they must give their consent. We should always have written notes about how a person communicates consent and how we would know if they were not consenting.
Not understanding the role of education – I receive assessments for feedback where a person is labelled as ‘lacking capacity to engage in sexual relations’, with no attempt to provide education to help them to try and gain capacity. It would be like saying someone can't drive without ever giving them a driving lesson. People should be provided with relationships and sex education (RSE) that they understand, to be able to reach an informed decision and should not be deemed to lack capacity without this. People have a right to accessible information. (See our educational resources available here).
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 happens. A man was awarded £10,000 (plus costs) from a local authority for such a delay. We encourage organisations to ask for timely support where needed, if a person faces such delays and restriction to their human rights. It might be helpful to share this article with them.
Watch Prof. Claire De Than's webinars on people's legal rights surrounding sex and relationships.
Do...
- assess each decision separately
- be aware of changing case law in this area which impacts on what needs to be assessed
- make sure people have had the information they need to be able to make an informed decision (RSE).
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 and dance to the slow songs. He also enjoys it when Matt touches his penis when they go to the toilet. 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 the mechanics of the act.
- 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 Juri 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?
- 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.
- 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 ie if it is borderline/the person disputes the outcome and/or if it is complex.
Dr. Claire Bates, Supported Loving Leader
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).
Mental Capacity Act Code of Practice
Mental Capacity Act Code of Practice giving guidance for decisions made under the Mental Capacity Act 2005.
My Body My Choice
Created by My Life My Choice, a booklet if you want to find out more about consent.
Sexual Consent Animation- Informing Choices
Watch this video by Informing Choices Northern Ireland about sexual consent
Consent Film by SignHealth
Watch this video by on non-verbal consent by SignHealth
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
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Supported Loving network
Supported Loving is not a formal membership organisation. Anyone can take part, it is free.
Read more