Sex and the Law by Trish O’Hara January 2015
Having just spent most of the day writing a programme for Sexuality, Sex and Intimacy for Older People in the Care Setting, I am rather raging about how restrictive the laws seem to be.
I understand and support the sentiments of the Sexual Offenses Act 2003 in protecting those at risk of sexual crime and abuse and recognise the necessity of making it clear that those who violate individuals who cannot or will not consent to sex are committing a sexual crime. I am convinced this also restricts the rights of people who may not have capacity to enjoy intimacy and sex when there are situations this may violate their Human Right to family life (article 8 – 1998)
Those who have read my blogs before will know that my favourite law, if one can have such a thing, is The Mental Capacity Act 2005. My only criticism (as I truly adore the rest of it) is the restrictions from future decisions or best interest decisions with regard to sexual relations. I think the Act is remiss in not including supported decision making with regard to sex as this means loving and intimate relationships are completely denied for those without capacity.
As stated by the WHO 2010, we all should have the right to a sexual relationship with both ourselves and others and exercise our sexuality in a way that we see fit. People with a learning disability, acquired brain injury or dementia may benefit from a sexual relationship, but if they are incapacitated, then the law would prevent any support for them to achieve this.
The obvious and perhaps clearest dilemma is in a situation where an older person with dementia, who lacks capacity to consent to sex, is regularly visited by her long term partner or husband who wishes to continue to have sexual relations with her. The woman may clearly demonstrate a sense of well-being with her visit and enjoy the intimacy, love and touch during sex, but if the care home were to facilitate this, they are at risk of abetting a criminal activity – And the husband prosecuted for a sexual criminal offense.
Surely, this cannot be acceptable. Professionals and family are involved in big decisions all the time for people with a lack of capacity – regarding issues of health and well-being. Why not the decision of sex?
I simply think the Mental Capacity Act was not brave enough to take this on – and in avoiding to include it – has created a black hole of practice that many know will either ignore the law – or indeed cause ill-being by abiding by it.
Let’s hope the select committee take a good look at this when reviewing the otherwise brilliant law, The Mental Capacity Act.