Are we the Sex Police?
And if its not us?...............
Louise Hamilton - Lead Manager (Integration)
Sex – People do it!
•
•
•
•
•
•
We can be uncomfortable talking with service users about
sex
Frankly you don’t need to discuss it with everyone – that
would be just weird!
But when it becomes an issue we need to get better at
talking about it than we are now
It’s a fairly basic instinct and an intrinsic human right
On many occasions we have to accept it really is nothing
to do with us and we need to butt out
However, sometimes it is about safeguarding …….
The Human Rights Act
•
•
Article 8 - Right to respect for a private and family
life
What would you do or feel if someone came into
your home and said “you can’t have sex”?
The Human Rights Act
•
•
•
•
•
Do you think about this in your daily job?
It’s to do with state interference
Whether you like it or not you are agents of the
state….
And are you interfering with a person’s human
rights?
Qualified rights
ECHR
•
•
•
•
Article 8 includes the right to define ones “inner
circle”.
This implies an interest in determining who we
establish and/or continue a relationship with.
The state may need to intervene in order to
protect and individual’s right not to have a
relationship
The wishes of an incapacitated adult are
amongst the most important factors to consider
ECHR
•
•
•
•
•
The areas services are being challenged about,
and its becoming more common….
Right to life
Respect for private and family life
Right to liberty
Freedom from inhumane or degrading treatment
What is mental capacity?
•
•
•
•
The ability to make a decision
Everyone who is an adult is assumed to have this
ability
For some, there may be a problem which affects
their ability to make a decision
Could be due to ………..
Could be due to:
•
•
•
•
•
•
•
•
Stroke or brain injury
Mental health problems
Dementia
A learning disability
Confusion, drowsiness, unconsciousness because of a
illness or its treatment
Shock, pain
Substance misuse (including alcohol)
Absolutely anything else
Safeguarding
•
•
•
•
Remember there is no “safeguarding law”
If you need to take action to protect someone,
you need to ensure you engage the correct
legislative procedures
Even if you are not taking action, you still need to
be aware of what the correct legislative
procedures expect of you.
Omissions are also actions
The 5 principles - PLUMB
•
Presumption of capacity . A person is assumed to have capacity. A lack of
capacity has to be clearly determined.
•
No-one should be treated as unable to make a decision unless all steps to
help them have been tried. (MAXIMISING CAPACITY)
•
A person can make an unwise decision. This does not necessarily mean
they lack capacity.
•
If it is determined that a person lacks capacity then any decision taken on
their behalf must be in their best interests.
•
Any decision should show that the least restrictive option or intervention is
achieved.
How is mental capacity assessed?
•
•
•
•
Is there an impairment or disturbance in the functioning of
the mind or brain?
Does this make the person unable to make a decision at
the time it needs to be made?
– Understand the information
– Retain the information
– Weigh the information in balance
– Communicate their decision
Loss of capacity is loss of one of the above 4 points
Remember the 5 principles
How can someone be helped to
make a decision? Principle 2
•
•
•
•
•
•
•
•
•
•
•
Assume Capacity
Encourage and support
Is the information given in the right way
Is the right information given – alternatives explained
Has the person had enough time to make the decision
Time of day?
Can anyone else help
Can the family/friends help to communicate with the person
Are there any other circumstances which may help the person make
a decision
Can the decision wait
As this is one of the statutory principles – how is it evidenced
How do you write a mental capacity
assessment?
•
•
•
•
•
Where there is any concern you should write a capacity
assessment down, even if you are finding that a person
ahs capacity.
Follow the 2 stage test
What makes you believe there is an
impairment/disturbance in the functioning of the mind or
brain?
What do you know about it, how do you know, who told
you etc.
Why do you believe it has an impact on the person's
ability to make this decision?
Section 4 MCA – Best Interest
Decisions
•
•
•
Enables “decision makers” to make decision on
behalf of someone who can’t
This is called “proxy decision making”
Section 4 is essentially a checklist you need to
follow to ensure you have used the right process
to determine what is in someone's best interests
The checklist
•
•
•
•
•
•
•
•
Non discrimination …….age appearance condition
behaviour
All relevant circumstances
Regaining capacity
Permit and encourage participation
Person’s wishes feelings beliefs
What would they choose if they had capacity?
The views of other people
Life sustaining treatment
How do you record a best interest
determination?
•
•
•
•
•
•
•
•
•
Same as before, follow the checklist.
A statement about not discrimination etc
What are the relevant circumstances
How did you encourage participation
What at the person’s views? Their family/carers?
What can you learn about previous views
Is there any authority in place for decision making?
Views of the IMCA or other advocate.
Have a rational rationale
Decisions specifically excluded from
the Mental Capacity Act
•
•
•
•
•
•
Marriage, civil partnership
Divorce
Adoption
Voting
Donation of tissue
Sexual Intercourse
•
This means that the MCA gives no authority to make best interests
decision on behalf of a person who lacks capacity in the above areas
so no proxy decision making.
If you need to take action in relation to these only the courts can
intervene
•
“Judge bans woman from having
sex” (Daily Mail)
•
•
•
•
•
29
Autism
IQ of 64
had to be protected from “potentially exploitative
and damaging” relations in the future
Prevents her from having sex and also means
and anyone trying to have sex with her can be
charged under the sexual offences Act
Sexual Intercourse and Vulnerability
•
•
•
Its far more complex than can be explained in this brief
workshop
If you have concerns…..
– Be clear about what the concrete situation is
– Give it due and proper consideration
– If you need advice, ask for it
– See it from all sides
Take legal advice. You can only get this from lawyers
Basic Capacity Test for Sexual
Activity
•
Sufficient knowledge and understanding of the
sexual nature and character of the act, and of the
reasonably foreseeable consequences to have
the capacity to choose whether to engage in it ,
the capacity to decide whether to give or withhold
consent to sexual intercourse.
•
X City Council & Ors (2006)
Mental Capacity to decide to have
sex
•
•
•
•
•
•
The general capacity test plus
Rudimentary knowledge of the mechanics of the act
That it is sexual in nature
That there is a risk of STDs
That some sexual acts risk pregnancy
That the person understands they can say no
•
•
It is act not person specific
However there may be occasions where a particular sexual partner
impedes or undermines the mental functioning of the person , making
them incapacitous
And the nature of the relationship with a particular partner may have
a bearing on the persons vulnerability and risk of exploitation.
•
Capacity to consent to sex
•
Always remember it’s a low threshold
•
You don’t need to know much …. Just enough
•
“understanding need not be complete or sophisticated”
(Munby)
•
Think about Wakefield city centre at the weekend!
The Sexual Offences Act 2003
•
•
•
It is unlawful to have sexual activity with a person
with a mental disorder which impedes choice
(s30)
B is unable to refuse if— (a) lacks the capacity to
choose whether to agree to the activity (whether
because he lacks sufficient understanding of the
nature or reasonably foreseeable consequences
of what is being done, or for any other reason), or
is unable to communicate such a choice to A.
Sexual Offences Act
•
•
•
S31 – 34 other offences regarding mental
disorder impeding choice
S34 – 37 causing or procuring sexual activity with
a person with a mental disorder through
inducements threats or deception
S38 – 44 care workers for people with a mental
disorder
Sexual Offences Act
•
The part of the test this relates to is the question
on whether or not the person understands they
can say yes or no.
S38 – 44 care workers for people
with a mental disorder
•
•
Longcare Inquiry
Philip Carver (59)- 16 months for assaulting a 25 year old
victim with a mental age of 5. Judge said at his age he
should have known better
•
Colin Hines (46) – 30 months, 2 female victims
Wall of shame
•
Joshua Montemayor (46) care worker jailed for eight
years – Victim 82 with dementia
•
Devon care home abuser's sentence is cut, from 12 to
4 years. James Watts (58) offences against 4 women
who had cerebral palsy who could not stand or move
unaided
Wall of shame
•
Married nurse (52) Jeanette Mc Cloud carried out 2 year
affair with teenage patient (17) 18 months 9
•
Sex assault carer's sentence cut Gareth Jones (23)
sentence cut from 9 – 7 years for a cruel, deplorable,
sexual and sadistic attack on an 77year old lady with
dementia
Wider issues to consider:
•
•
•
•
•
•
•
•
Understanding of the statutory age limit? – only an issue
where the person is a possible perpetrator
Power imbalance?
Third party influence
Under fear or duress? Even if deluded
Do the persons derive pleasure from each other’
company?
Do they seek each other out?
Does each person know who the other person is?
Dignity issues?
Wider issues (continued)
•
•
•
•
•
•
The pleasure (or otherwise) which they experience in the
relationship
May be able to exercise choice in one situation but
another
Question is whether capable of agreeing at that time on
that day
Situational influences
There may be specific characteristics which destroy the
ability to weigh up and choose.
Inability to weigh up is not equal to a poor choice
Sex – is it anything to do with
morality
•
Well?
Marriage
•
•
•
•
•
Need capacity to understand the “contract” of
marriage
It brings with it an expectation that the contract
includes sexual relations
Sheffield case
Telephone marriage. X in UK, Y in Bangladesh
Any assessment of capacity to marry must take
into account the question of capacity to consent
to sexual relations.
•
•
AK had sustained brain injuries which caused him to have severe
memory problems. At the time of the hearing, he was married to BK,
who had been his girlfriend prior to his second head injury. BK said
that although they had split up shortly before the second head injury,
AK had subsequently expressed a wish to marry her. BK did not get
on with AK’s family, and disagreed with the views of professionals
that AK lacked capacity to decide to marry. She arranged to marry
AK in secret, taking him out of the care home where he resided in
order to do so. The registrars did not identify any difficulties with
AK’s mental capacity, and the ceremony took place without incident.
Found to lack capacity
Contraception?
•
•
It’s a best interest decision
Not excluded from the MCA proxy decision
making
•
But sterilisation or termination would need a CoP
application
Enabling sexual contact?
•
•
•
We should only ever intervene where we have
concerns about mental capacity, vulnerability or
exploitation
If a person lacks the ability to understand the act
of sex, principle 2 of MCA requires us to provide
education and support an eventual
understanding.
Recent local case
Munby
•
•
We must avoid the temptation to put the physical health
and safety of the elderly and the vulnerable before
everything else….. Physical health and safety can
sometimes be bought at too high a price in happiness and
emotional welfare……The emphasis must be on sensible
risk appraisal, not striving to avoid all risk
Be willing to tolerate manageable or acceptable risks as
the price to be paid in order to achieve some other good.
Munby
•
What good is it making someone safer, if it
merely makes the miserable?
Scenario 1
•
•
•
•
•
•
•
Julie has dementia and lives in a care home
Phil also has dementia but to a lesser degree than Julie
Phil and Julie have been “canoodling”
Julie thinks Phil is her husband (her husband died some
years ago)
Both parties enjoy each others company and seek each
other out
It appears that the relationship will become sexual
What do you do?
Scenario 2
•
•
•
•
Marcus and Jennie both have mental health
problems and live in the same supported living
complex
They have become boyfriend and girlfriend
Jennie asks you about contraception
What do you do?
Scenario 3
•
•
•
•
Andy (64) is a bus driver taking people with
special needs to a day centre
Lula (17) a service user with learning disability
who is a passenger, tells you Andy is her
boyfriend
Lula asks you about contraception
What do you do?