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Sex and Capacity, Law and Morality

Sex and Capacity, Law and Morality. Peter Bartlett Nottinghamshire Healthcare NHS Trust Professor of Mental Health Law University of Nottingham. The Scenario.

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Sex and Capacity, Law and Morality

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  1. Sex and Capacity, Law and Morality Peter Bartlett Nottinghamshire Healthcare NHS Trust Professor of Mental Health Law University of Nottingham

  2. 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 husband’s behaviour.

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

  4. 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

  5. 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

  6. People Unable to Refuse (cont’d) • 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

  7. ‘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 person’s 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.

  8. 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

  9. 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)?’

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