Practice Guidance Note Mental Capacity Act - Assessing Capacity for Consent to Sexual Relations V02 Date issued Issue 1 Feb 16 Planned review February 2019 MCA-PGN-01 Part of NTW(C)34 MCA Policy Author/Designation Responsible Officer / Designation Janet Grace Consultant Psychiatrist Kerry Graham Acting MH Legislation Development Lead Rajesh Nadkarni Acting Executive Medical Director Section Content Page No: 1 Introduction 1 2 Background 2 3 Aims and Objectives 2 4 Responsibilities 2 5 Capacity to consent to a sexual relationship and the MCA 2 6 Process of Assessing Capacity 3 7 Relevant Case law 3 8 Current position 4 9 Finely Balanced Decisions 4 10 Best interest decisions 4 11 Impact on Equality and Diversity 5 12 Training and Support 5 13 Implementation 5 14 Review and Monitoring 5 Document No: Appendices, listed separate to Practice Guidance Note Description Issue Issue Date Review Date Appendix 1 Impact Assessment 1 Jan 16 Jan 19 1. Introduction 1.1 This practice guidance note (PGN) deals with the procedures for assessing the mental capacity of people to consent to having sexual relations and applies to people aged 16 years and over. It should be read in conjunction with the Mental Capacity Act 2005 and its Code of Practice 1
1.2 It is beyond the scope of this PGN to describe what action should be taken by clinical teams within (the Trust), once capacity is determined. This will need to be considered on a case by case basis taking into consideration the individual circumstances of the person and the nature of the service provided. 2. Background 2.1 Assessment of capacity to consent to sexual relationships can be part of day to day clinical practice, part of risk assessment and a part of protecting vulnerable adult assessments. 2.2 Where capacity to consent to sexual relationships is thought to be impaired, a specific assessment of capacity must be carried out by the treating team. 2.3 It is recognised that assessing capacity can present some clinical anomalies; for example a capacity assessment may show that a patient does not have capacity to weigh up the advantages and disadvantages of contact with a violent expartner but may have capacity to consent to a sexual relationship with them. A common sense approach needs to be taken in these situations, concentrating on patient safety. 2.4 Where capacity to consent to sexual relations is determined but the person is thought to be under pressure/duress to engage in sexual activity then a safeguarding referral should be made. 3. Aims and Objectives 3.1 This practice guidance note aims to set out the principals and procedures necessary to meet the Trust s responsibilities to service users, staff and the Mental Capacity Act 2005 when assessing capacity for consent to sexual relations. 4. Responsibilities 4.1 All staff assessing capacity for consent to sexual relations will have regard to the details in this practice guidance note and highlight any issues with the operation of this document to their line manager. 4.2 Mental Health Legislation Steering Group will ensure this practice guidance note is monitored, reviewed and updated as necessary. 4.3 Mental Health Legislation Steering Group will report any required actions to the Mental Health Legislation Committee. 5. Capacity to consent to a sexual relationship and the MCA 5.1 Assessing capacity to consent to sexual relations is covered by the Mental Capacity Act 2005 and supplemented by case law (see below). However, making a best interests decision is not covered by the Mental Capacity Act 2005 and is specifically excluded by Section 27 - Family relationships, (1)(b) Nothing in this Act permits a decision on consenting to have sexual relations. 2
5.2 The definition of incapacity is outlined in section 2 of the MCA; A person lacks capacity in relation to a matter if at the material time he is unable to make a decision for himself in relation to the matter because of an impairment of, or a disturbance in the functioning of, the mind or brain. 5.3 Section 1 of the MCA states that a person must be assumed to have capacity unless it is established that he lacks capacity. 6. Process of Assessing Capacity 6.1 The MCA sets out a single clear test for assessing whether a person lacks capacity to take a particular decision at a particular time. It is a decisionspecific test: that it to say, a person s capacity is only ever assessed in relation a specific decision that needs to be taken, and not in general. It is also a time-specific test: that is to say, their capacity is assessed to take that decision at the relevant time and again not in general. 6.2 Anyone assessing someone s capacity to make a decision for themselves must use the two-stage test of capacity as set out in section 3 MCA: Stage 1 Does the person have an impairment of the mind or brain, or is there some sort of disturbance affecting the way their mind works? (It does not matter whether the impairment or disturbance is permanent or temporary). Stage 2 If so, does that impairment or disturbance mean that the person is unable to make the decision in question at the time it needs to be made? In answering this question will be determined by applying the four stage functional test. The person will be unable to make a decision for themselves if they are unable to do any one of the following four things: o Understand the information relevant to the decision, or o Retain that information, or o Use or weigh that information as part of the process of making the decision, or o Communicate their decision (whether by talking, using sign language or any other means). 6.3 The assessment of stage 2 (as set out in s.3 MCA) must include consideration of factors which have been identified as relevant to capacity for sexual relations identified through case law which are summarized at 8.3 below. 6.4 Detail of all considerations and assessments of capacity in relation to having sexual relations must be clearly recorded in the patient s health record. 3
7. Relevant Case law 7.1 The legal test of capacity to consent to sex has varied with recent case law. There have been several relevant judgments and these may be reconsidered in the future. There is a lack of clear authority / consensus on this point but the current interpretation is shown in section 8 below. 7.2 It is important that this PGN be read in conjunction with any recent or subsequent judgments and these are considered in assessments of capacity to consent to sexual relationships. 8. Current position 8.1 The structure of understanding that needs to be followed by clinicians when assessing capacity to consent to sexual relationships is now detailed as; An understanding and awareness of; the mechanics of the act; that there are health risks involved, particularly the acquisition of sexually transmitted and sexually transmissible infections; that sex between a man and a woman may result in the woman becoming pregnant Note: when considering the risks involved Hedley comments that what is required is fairly rudimentary..it would suffice if a person understands that sexual relations may lead to significant ill health and that those risks can be reduced by precautions like a condom. 9. Finely Balanced Decisions 9.1 Where an assessment of capacity to consent to sexual relations is finely balanced and cannot be determined by clinicians involved a second professional may be asked to assist with the assessment. Alternatively, or ultimately, the case may be referred to the Court of Protection for a determination. Advice and assistance may also be asked of the Court of Protection where the outcome may be affected by the different interpretations from the courts. 10. Best interest decisions 10.1 It is not possible to make a best interests decision arising out of a finding as to lack of capacity to consent to sexual relations as this is an excluded decision. It is not covered by the Mental Capacity Act 2005 and is specifically excluded by Section 27 - Family relationships, (1)(b) Nothing in this Act permits a decision on consenting to have sexual relations. 4
11. Impact on Equality and Diversity 11.1 In conjunction with the Trust s Equality and Diversity Officer this practice guidance note has undergone an Equality and Diversity Impact Assessment which has taken into account all human rights in relation to disability, ethnicity, age and gender. The Trust undertakes to improve the working experience of staff and to ensure everyone is treated in a fair and consistent manner. 12. Training and Support 12.1 Training this practice guidance note will be brought to the attention of all clinicians responsible for assessing capacity of patients to have sexual relations and be reinforced in existing training. 12.2 Support for the operation of this practice guidance note will be sought via line management, the MHA / Mental Capacity Act (MCA) Multi-agency Group and Mental Health Legislation Committee. 13. Implementation 13.1 This practice guidance note will be implemented at ratification and reviewed in 3 years or sooner if there are changes to national / local guidance or as and when case law develops. 14. Review and Monitoring 14.1 This practice guidance note will be monitored by the Mental Health Legislation Steering Committee who will in turn report any required actions to the relevant Group Quality & Performance Effective Committee. 5