Useful Guidance on Relationships, Sexuality & Mental Capacity | QCS

Useful Guidance on Relationships, Sexuality & Mental Capacity

March 12, 2019


CQC has brought out new guidance for inspectors and providers of adult social care. The guidelines are a useful introduction to a range of topics that some of us find bewildering, such as how best to support transgender people or those in a same-sex relationship, or what to do when a person with a physical disability asks for advice on how to access intimate relationships.


Balancing people’s rights

It can be really hard for staff to know how to respond to someone who may lack mental capacity but expresses sexual feelings, and this is one of the areas that crops up. The guidance needs quite a bit of unpacking for us to understand properly how to handle some of the challenges that can arise.

These challenges come from trying to balance people’s rights under the Human Rights Act Article 8 – to live as they choose, even though they might lack capacity to make some decisions, and to enjoy a private and family life – against the need to keep them and others safe. A person has the right to refuse intimacy – and indeed the right not to be upset by someone else’s inappropriate advances; at the same time, we have the right to form relationships with others, even when we may have lost the capacity to make some decisions.

Another recent guidance document produced by the Royal College of Nursing (RCN) explains: ‘Balancing the needs, desires, rights and choices of a number of residents in a care home is never straightforward for staff. Balancing the need of residents to be sexually active while simultaneously protecting residents from situations they would rather not experience, can raise dilemmas for staff.’


Encourage existing relationships

We certainly should encourage existing, important relationships, such as a long marriage, to be kept strong even though one of the two is now living in residential care.

I come across far too many examples where older couples, one of whom is a resident, are prevented by care staff from spending time together in private.  You’ll even sometimes see in the care plan that ‘Mrs X has a diagnosis of dementia so her husband must not shut the bedroom door when he visits, she’ll only want him to give her a cuddle.’ As long as continuing to express their love in private gives happiness to them both, it is cruel – and unjustifiable, and indeed unlawful – to prevent them.

And we may need to put aside our own cultural values, and encourage staff to do the same, if the couple in question are of the same gender, or in some other way challenge our own norms.


How should we assess capacity to make decisions about relationships and sex?

The law says that people have capacity to engage in sexual relationships if they understand the physical context:

  • the basic mechanics of the acts involved
  • the risk of sexually-transmitted diseases or of a woman becoming pregnant (if relevant to this person)

and, equally important, the social and human rights context:

  • either party has the right to say no, at any stage, whether or not they have engaged in sexual activity together in the past
  • this must be respected and cannot be overruled by the other person.

Assessing someone’s capacity, then, requires a sensitive conversation, in private and not rushed, where the assessor explores whether the person does understand these points.


Maximise capacity to enable decision-making

The principles of the Mental Capacity Act (MCA) stress that, before deciding people lack capacity for a decision, we must do all we can to encourage and enable them to make a decision for themselves. This applies particularly to people living with learning disabilities, who may never have been given the essential education that would enable them to decide whether to enter into, or continue, a relationship. Specialist education can be provided by psychologists or occupational therapists with expertise in learning disability: they have excellent pictorial resources that help.


Sexual relationships are never ‘best interests’ decisions

The Mental Capacity Act (MCA) says nobody can ever make a best interests decision that someone else should (or should not) engage in sexual behaviour. And if someone lacks the capacity to consent to sexual relations, nobody must ever take advantage of them even if they appear to go along with it.

Whether the person lacks capacity or not, it is never lawful to rape anyone, or take advantage of a power imbalance, for example between staff and users of services, to coerce someone into a sexual relationship.

But if the people concerned have capacity regarding these decisions, and are happy, and nobody else is harmed or upset, it is really unlikely that you have the authority to stop them.


How should we use this to prepare for inspection?

The CQC guidance gives useful pointers from page 8 onwards to the questions that inspectors may ask, to explore how well a provider supports people in this area.  In particular you should be prepared to:

  • Explain how you have trained your staff to do this, perhaps through informal discussion groups to explore their own preconceptions
  • Give examples of relationships you have supported, and
  • Be able to show your person-centred decision-making relating to individuals, in their care plans.


Get the basics right

Situations about relationships and sexuality can be complex; the RCN guidance gives really thoughtful case examples, showing how sensitive you must be – and how you must record how you have reached decisions in this area.

With people who may lack capacity to make relevant decisions, remember to do all you can to improve their capacity, and assess their ability against the relevant criteria as explained in the CQC document and where you must limit people’s right to live as they choose, do it tactfully and restrict their freedom as little as you can.


Rachel Griffiths
Rachel Griffiths

Mental Capacity and Human Rights Specialist


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