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?