Sexuality, Sex and Intimacy and the law

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.

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Sexuality, Sex and Intimacy and the law

Published by Residential Forum

The Residential Forum is to promote the achievement of high standards of care and support for children and adults living in residential care and nursing homes, supported housing, residential schools and colleges, hospices and hostels. It contributes to improving the quality of service to the public. Members of the Forum are people of standing and experience drawn from the public, private and voluntary sectors, as well as some who can speak for service users and carers.

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