Capacity, consent and sexual relations: how latest case may help social workers navigate challenges

By Lorraine Currie

I was recently asked to contribute case studies to the revision of the Mental Capacity Act 2005 code of practice. As the MCA has been around for thirteen years, in practice I think I have experienced every issue likely to crop up where mental capacity is an issue in my role. Not just as a social worker myself but in giving guidance and advice to social workers and training them, as well as first-hand lived experience.

However, when it came to be writing something meaningful it was difficult. We all agree the ‘old code’ is too simplistic, with too many happy endings. When I reflected on the challenging cases, they almost all involve sex, but never just sex.

Earlier this year, Shropshire Council held a conference on sex, capacity, rights and responsibilities. It was a fantastic day which set out to balance the difficult challenges in assessing capacity for sex, with the rights of people to engage in and enjoy sex as a right.

I think the conference tried to look at the same issues which have been addressed in the recent case of A Local Authority v JB [2020] EWCA Civ 735.

I am not capable of walking through the thinking of the judge/s in this case, and others will do that much more eloquently. I am reflecting on what this means in practice. In essence this is a brilliant summary of all cases involving the decision to consent to sex, which up until now has required that the relevant information is that a person should be able to understand, retain and use or weigh is:

• the mechanics of the act;
• the possibility of pregnancy in heterosexual sex;
• the possibility of sexually transmitted infection. and
• that the person could say yes or no to sex.

Considering the other person’s consent

It did not include consideration of the other person’s consent.

Lord Justice Baker, who gave the lead judgment in A Local Authority v JB, said the fundamental decision is whether to engage in sexual relations, rather than to consent to sexual relations.

Also, he said the relevant information included all of the above plus the following:

• the fact that the other person must have the capacity to consent to the sexual activity and must in fact consent before and throughout the sexual activity.

It never sat well with most professionals that the consent of others was not a relevant factor in the ‘understanding’ element of capacity for sex. Many found it hard to not be affected by this in their assessments.

Whether it is as easy for us mere mortals to grapple with capacity to consent to sex versus capacity to engage in sex I don’t know. But I do know this: all social workers will have been driven to distraction by an assessment of capacity for sex, where the bar is so low and rights are so high that they can’t not find the person to have capacity and yet they know the risks of acting on that capacity are huge.

Wider issues than sex

If the person has capacity, why would we be worried? In my experience, sex is never the main player; it is often about wider ‘vulnerability’ (I don’t like the term but I haven’t got a better one); it’s about the person wanting what everyone else has – a baby or a partner; it’s about believing everything everyone says; it’s about managing desire and impulse in a virtual world, and it’s about wanting people to like you.

What difference will this change make for the young woman with her bag packed because a handsome stranger she met on the internet is going to buy her a puppy if she leaves with him? Or the young man who wants to move to a certain town, because that’s where a TV soap is set and everyone has sex there?

We end up sailing through the consent to sex bit, but find it of no benefit to the person because we then go on to find they don’t have capacity to use the internet (so where will they meet Mr or Mrs Right?) and they don’t understand the risks of contact with strangers (so where and how will they meet Mr or Mrs Right?).

Tangled up in all this we have young people who are not educated in their rights or their responsibilities and for whom sex education is not rights-based. Young people who suddenly pass an age milestone (often 18 when it should be 16) and acquire rights they didn’t have the day before and that they don’t know how to utilise, benefit from or put into practice safely.

This has to start way back. It has to start with a rights-based approach from the earliest possible age and to do this differently with disabled young people than we would with any other young people is unacceptable.

Starting from a rights-based approach

For this reason, I totally agree that the giving of consent and the continuation of consent is entirely appropriate within an assessment of capacity, and about the focus also on engaging in sex. If it’s more than a tick-box exercise, it might lead to promoting rights, rather than just cutting off a whole part of person’s life.

I like the beginning of this judgment best, where Lord Justice Baker said that the court has to balance three principles, in relation to sex and capacity:

1. Autonomy – defined in article 1 of the United Nations Convention of the Rights of Persons with Disabilities as “to promote, protect and ensure the full and equal enjoyment of all human rights and fundamental freedoms by all persons with disabilities, and to promote respect for their inherent dignity.”
2. Protection – people do require protection when they are placed in particularly vulnerable circumstances and situations.
3. That sexual relations between two people can only take place with the full and ongoing consent of both parties – the MCA and Court of Protection are part of a wider system of law and justice in which this principle has gained wide recognition.

I think this initial opening summarises the challenges for social workers in this field. We strive to promote autonomy for people to choose to engage in and enjoy sex with the same equality enjoyed by those without a mental impairment, yet we know and encounter people who in the exercise of autonomy are made incredibly vulnerable and are experiencing or at risk of experiencing abuse, harm and exploitation.

The first two concepts of autonomy and protection alone have kept us challenged for 13 years and more.

Does it help to now make the decision active rather than abstract? No longer to assess capacity to consent to sex, but to assess capacity to engage in sex which clearly involves the consent of the partner.

More challenging but more real

I think it makes it more challenging, but it makes it more real. If we are preparing young people for the ‘real world’ then consent of partners is part of that world. It says to me that we are actually considering that people may engage in sexual relationships and so must be prepared to think through what’s involved. That it is now more than the physical possibility of pregnancy and sexually transmitted infections, it is about the possibility that the other person may say ‘no’ or they may say ‘stop’

This has to be a good thing.

That said I don’t think we will make this transition easily, but there will be much better conversations. Most of all I hope there will be much better education and training and preparation for life.

I think this case will help with situations that challenge us now, I think it brings parity with the broader community and it squares the circle.  Where I don’t think it helps is in situations of long marriage or partnership where one partner loses capacity for many things due to dementia. The situation where maybe both parties still want to engage in sex but to do so may be deemed unlawful. I think this decision will make those assessments harder by adding another layer of consideration unless this element can be nuanced out, as contraception or sexually transmitted infections can.

Everyone is going to have to rewrite their documentation on assessing capacity to engage in sex, the language needs to be different and let’s hope it’s a great opportunity to strike the right balance between autonomy and protection.

Lorraine Currie is acting principal social worker and professional lead for the MCA at Shropshire County Council