Positive about mental health and learning disability Sex and Capacity, Law and Morality Peter Bartlett Nottinghamshire Healthcare NHS Trust Professor of Mental Health Law University of Nottingham

Positive about mental health and learning disability The Scenario A wife is in care home, with dementia. Her husband comes calling on Saturday afternoons. Closes door. Staff reasonably sure that sexual congress is taking place. As far as anyone can tell, the wife enjoys this, but it would seem that she has no real understanding of the sexual nature of the husbands behaviour.

Positive about mental health and learning disability

Mental Capacity Act 2005 S 27(1) precludes sexual activity from the operation of the Act

Positive about mental health and learning disability Sexual Offences Act: Offences by Carers Paid carers not permitted to have sex with people with mental disorders in their care Wide range of sexual activity included, with significant penalties Incapacity need not be shown: this is about breach of position of trust Exceptions: married or sexual relationship pre-existing the care relationship

Positive about mental health and learning disability Sexual Offences Act (2): People Unable to Refuse Still require mental disorder Inability to refuse: –he (or she) lacks the capacity to choose whether to agree to the touching (whether because he lacks sufficient understanding of the nature or reasonably foreseeable consequences of what is being done, or for any other reason OR –unable to communicate

Positive about mental health and learning disability People Unable to Refuse (contd) wide range of sexual activity again – –penetration of mouth, anus or vagina with body part or anything else: up to life imprisonment –other touching: up to 14 years –sex in presence/watch: up to 10 years –same penalties for inducement to engage in sexual activity Marriage/pre-existing relationship not a defence

Positive about mental health and learning disability Sexual For the purposes of this Part penetration, touching or any other activity is sexual if a reasonable person would consider that (a) whatever its circumstances or any persons purpose in relation to it, it is because of its nature sexual, or (b) because of its nature it may be sexual and because of its circumstances or the purpose of any person in relation to it (or both) it is sexual.

Positive about mental health and learning disability Capacity he [or she] lacks the capacity to choose whether to agree to the touching (whether because he lacks sufficient understanding of the nature or reasonably foreseeable consequences of what is being done, or for any other reason

Positive about mental health and learning disability XCC v MB [2006] 2 FLR 968 The better view is that,in order to protect those with a mental disorder, a person is to be treated as understanding the nature of the touching if they understand its sexual nature, as opposed to the fact that physical touching is taking place. This interpretation focuses on the complainants knowledge or understanding of the meaning or consequences of sexual relations, and so moves firmly away from the heavily criticized and old- fashioned view that a mentally disordered person can legally consent to sexual activity if their animal instincts take over.

Positive about mental health and learning disability XCC v MB [2006] 2 FLR 968 Does the person have sufficient knowledge and understanding of the nature and character – the sexual character – of the act of sexual intercourse, and of the reasonably foreseeable consequences of sexual intercourse, to have the capacity to choose whether or not to engage in it, the capacity to decide whether to give or withhold consent to sexual intercourse (and, where relevant, to communicate their choice to their spouse)?