Capacity to Make Decisions About Sex and Intimate Relationships.

As Valentine’s day approaches, many will be making romantic plans with their significant other or perhaps arranging to meet someone new, either to begin a relationship or possibly seeking something more fleeting…

For some disabled adults, for example those with learning disabilities or brain injuries, the desire to participate in Valentine’s day activities is just as great, but often those around them may be concerned about the implications intimate relationships may have on that person’s wellbeing. The factors to be considered when determining whether an adult has capacity to make their own decisions about sexual relationships are explored in this article.

As those involved in the care of disabled adults who lack capacity may know, a key piece of law concerning capacity is the Mental Capacity Act 2005 (MCA). The MCA was made to protect and empower people who might lack capacity to make their own decisions.

The MCA says that an adult can only be said to be unable to make a decision if they have an impairment of their mind or brain which means they cannot make a specific decision. A person is unable to make this decision if they cannot do one or more of the below:

• understand the information relevant to the decision;
• retain that information for long enough to make the decision;
• use or weigh up that information as part of the process of making the decision; and
• communicate their decision in any way.

The “relevant information” must always be specific to the decision in question.

Sexual Relationships

When assessing capacity to have sexual relations, the relevant information to be understood, used, and retained is:

(a) The mechanics and nature of the sexual act.
(b) The risk of sexually transmitted infections. (This can be a fairly basic knowledge – i.e. that sex can lead to infections and illness and the risks of this can be reduced by safe sex precautions).
(c) The potential that some sexual activity can give rise to pregnancy. However, it will usually be unnecessary to consider this element where pregnancy is not a foreseeable consequence of the sexual act contemplated because of the person’s sexuality.
(d) A basic understanding of contraception.
(e) That you have a choice whether to have sex and can refuse to have sex. The person must understand that they, and their partner, can change their mind in relation to consent to sex at any time leading up to and during the sexual act.

Interestingly, the test for capacity to consent to sexual relations will ordinarily not be based on the identity of the person that the act is planned with. The person being assessed does not need to be able to understand or evaluate the characteristics of one particular partner over another.

Further, whilst the fact that the risk of pregnancy may be a relevant factor in some circumstances, the social, emotional, health and psychiatric consequences of falling pregnant and having a child is not relevant information, and so the person’s ability to understand, use and retain this information cannot be considered when assessing their capacity to decide about having sex.

The MCA states that if you make a decision for someone who cannot make their own decision, it must be made in their best interests. However, it is worth noting that the MCA specifically excludes consenting to sexual relations as a decision that can be made on behalf of someone else. As such, the adult in question must always be able to make their own decisions about sex to consent to it.

Where an individual does not have capacity to make decisions about sex, they are unable to safely give their consent to have sex. It is therefore very important that a disabled adult is assessed by a suitably qualified person if it is unclear whether their cognitive impairment may impact their capacity to have sexual relations.

There may be some circumstances where adults can be supported through education to improve their understanding of the relevant information. Any educational information provided should be accessible to the individual making the decision in line with their needs.

If you have concerns that someone you care for may not have capacity to consent to sex, or alternatively, that they may have capacity to consent to sex but may lack the appropriate support, please do not hesitate to reach out to Lanyon Bowdler. Our Court of Protection Team, who work with disabled adults and their families, will provide you with clarity and can signpost you to other organisations who may be able to provide further support.

Useful resource:

Supported Loving Toolkit - https://www.choicesupport.org.uk/about-us/what-we-do/supported-loving/supported-loving-toolkit