Page 9 - Community Living Issue 31-3

living a life: sex, marriage and the law

move upon their personal privacy, yet
such a move was in its essentials Conclusions: consent and welfare concerns
entirely lawful and properly motivated.
As I have said, perhaps it is part of the Laying down any clear experimentation or matters such as the
inevitable price that must be paid to test for capacity in simply hunger for differing possible
have a regime of effective relation to sex is a attention, love or consequences of sex for
safeguarding.” multifaceted problem. It comfort. men and women, and the
all depends on the facts. There is social differing impact of
The safeguarding implications of this It is hard to define ambivalence about the sterilisation (usually
case are: consent on paper given range of sexual acts – irrevocable in women,
● ●Despite the “presumption” of capacity, the range of contexts and from the ordinary straight potentially reversible
the local authority’s safeguarding motives for people or gay, through to the in men).
responsibilities were properly regarded without cognitive unusual, to the well out The underlying purpose
as triggered in relation to the married impairment to willingly of the ordinary and into of criminal law is different
couple’s assumed intimacies. participate in a sexual fetishism – if there is no from civil law, and
● ●Not even Making Safeguarding Personal activity – many of us apparent unwilling victim. prosecution and actions
(Local Government Association, 2017) might accede to It is almost impossible for civil assault have
could have been used to prevent the deliberately abusive to separate welfare different standards of
council from doing as it did, because the treatment through concerns from the strict proof for public policy
evidence about capacity was not ignorance, openness to question of capacity in reasons.
contradicted, which gave the council a
reasonable belief that the man was
subject to abuse. “If you believe my husband lacks The tabloid press might find the idea of
● ●Safeguarding cannot work without a capacity and you intend to tell other women in care homes having a right to
lower threshold than certainty being people about that in the context of sex if they have capacity unseemly or
applicable to section 42 enquiries, given safeguarding, you need to get it declared inappropriate, especially if others deem the
the parallel operation of the to be the case by a competent court woman vulnerable. But the presumption
presumption of capacity. because he is presumed to be capable of capacity applies to everyone, and the
● ●However, as the KA case showed in our and the psychologist is only expressing a Care Quality Commission says care homes
last issue (Schwehr, 2017) a competent view with which I do not happen to agree. should be homely.
medical expert can be overruled by a “I intend to go on offering him the For this reason, a degree of legal literacy
judge in a capacity decision. Whether opportunity to have sex with me unless really matters for adult social health and
one’s level of functioning refutes the or until you take proper procedural care clients. The distinction between what
presumption of capacity is ultimately a steps to clarify your position. constitutes a sexual crime or a civil assault,
legal judgment. An expert opinion on criminal offence, I will have a as opposed to conduct that carries risks but
“If I am arrested by the police for a
can be managed as an issue of maximising
capacity is not an absolute determinant.
“ reasonable belief in my husband’s welfare, is part and parcel of person-
willing consent so I am not expecting to
centred care planning and provision.
It is almost impossible
be charged or prosecuted.
Observance of human rights is a duty in all
“If you take steps in the court of
care homes, not just of social work staff in
to separate welfare
concerns from the strict protection to get an injunction against councils or clinical commissioning groups. n
me, or change my loved one’s care plan
question of capacity in so as to impact upon our private life, Belinda Schwehr is chief executive of legal
matters such as the that is up to you, but you need to have advice charity CASCAIDr (www.CASCAIDr.
taken on board my views about his
org.uk) and owner of the Care & Health
consequences of sex for capacity and best interests (because I Law consultancy. She has been a barrister,
” References
men and women am a statutory best interests consultee), a solicitor advocate and a university law
lecturer
in order to have any hope of success.”
This approach could be used, in adapted
Possible action by spouse form, by any third party in a situation like CH v A Metropolitan Council [2017] EWCOP12
What about WH’s loss of conjugal this where a person is potentially unfairly Local Government Association (2017) Making
relations in this case? regarded as a possible perpetrator of any Safeguarding Personal. www.local.gov.uk/
The report states that she pursued a type of abuse, particularly if the topics/social-care-health-and-integration/
claim under the Human Rights Act 1998, relationship is close. adult-social-care/making-safeguarding-personal
Schwehr B (2017) What is the law on capacity
which was settled on confidential terms. to have sex? Community Living. 31(2): 10-11
What else could CH’s wife have done, Legal literacy in social care
considering that nobody in this case Consider, however, if this had been an
suggested that the psychologist’s elderly woman with dementia in a care This article is the second of a two-part
assessment was wrong? home, whose husband’s entrenched view series. Part one highlighted the case of
It would have taken a brave and was that she still knew him as her KA, a person with a rudimentary
well-informed person to say the following, husband, and could consent to sex after understanding of sex, who was presumed
but she could in theory have written to 50 years of marriage – would the press capable of consenting (Schwehr B, 2017)
the council as follows: coverage be critical of a “nanny” council?

www.cl-initiatives.co.uk Community Living Vol 31 No 3 | Spring 2018 9