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the expert’s assessment competent sufcient to hold on to the presumpton Team of legal acton if she did not desist
and thorough. of capacity. from having sex with him, on the
grounds of inability to consent.
KA had a very rudimentary understanding a aci o ave se She will also examine the implicatons
and was able to weigh up that the e i licatons o e ulin for care management, assessment
consequences of sex are or may be The core relevant informaton for a and commissioning.
pregnancy and ill-health, though he debate about capacity to have sex is this:
struggled to retain informaton about
condom use or to understand that the i) The mechanics of the act and its THE JUDGE SAID
ill-health may be serious. The expert sexual character (ie. that it is not a
also took the view that KA would fnd it a medical examinaton or procedure). l “It is not ‘risk’ that needs
deprivaton to be unable to have sex to be considered, it is
or to marry. ii) That sexual relatons can lead reasonably foreseeable
to pregnancy. consequences. A [person]
Parker J commented that, whilst not needs to have an understanding,
determinatve of capacity, this did iii) That there are health risks caused by if not a sophistcated one,
support an inference that KA understood sexual relatons. that pregnancy is a
the nature and character of both sex foreseeable consequence of
and marriage. With regard to the relevance of consent heterosexual relatons.
of the person with impaired capacity,
e ulin on e case o it goes to the very nature of the act. l The consideraton of
The judge ultmately disagreed with The queston is: “Does the person have contracepton in general is far
the expert: sufcient knowledge of…the sexual too detailed and complex to
nature and character…of sexual form part of the capacity test.
“The tests for capacity in respect of intercourse, to have the capacity to
sexual relatons and marriage are choose whether or not to l Pregnancy is a separate type
not high or complex. The degree of engage in it, the capacity of consequence from illness
understanding of the ‘relevant to decide whether or not and must be considered
informaton’ is not sophistcated and to give or withhold separately. It does not
has been described as ‘rudimentary’, consent to it, at that tme consttute ill-health.
… ‘salient’ may be more apt. I must and, where relevant,
not set the test too high ... to communicate their choice l It should sufce if a person
[Adding] any further relevant to their partner?” A great understands that sexual relatons
informaton to the requirement for example of a lack of understanding of the may lead to signifcant ill-health
understanding ... is likely to nature of the act is an old case (R v and that these risks can be
involve unnecessary paternalism Williams, 1923) in which a person was reduced by precautons like
and a derogaton from persuaded into sex on the basis it would a condom.
personal autonomy”. be good for her singing voice!
l I do not agree that it is necessary
She emphasised: “It is partcularly This then was the clear outcome for KA to understand condom use,
important to de-couple welfare from from the case of KA in 2016, the leading which, leaving aside efcacy,
capacity under the heading of health case on sexual consent. In the next issue, goes to welfare and not capacity.
and pregnancy.” Putng this another Belinda Schwehr will I examine the It is not an examinaton in which
way, the ability to assess ‘risk’ fully is more recent case of a man with one has to atain a certain mark in
not the same as weighing informaton, Down’s syndrome whose wife was all modules.”
and is not an explicit part of the legal efectvely warned by a Safeguarding
test of capacity; risk assessment is a
functon of social services or the CCG
in the discharge of statutory functons
involving dutes to meet needs.
“The statutory test is of foreseeable
consequences, as in the pre-existng PREVENTING MELTDOWN IN
law. Again on the authorites,
understanding need only be at a ADULT SOCIAL CARE
rudimentary level.”
elin a c we will e lea in ano e o ou o ula
She concluded that it was not necessary
for KA to understand condom use in order le al se ina s on ues a e ua a
to have capacity to have sexual relatons: o as on e ence en e wick anc es e .
condom use went to welfare and not to
capacity to consent to sex. So KA did have See inside front cover of this issue of Community Living for more details.
a rudimentary understanding that illness If there is a subject you would like Belinda to cover, please contact
and pregnancy were foreseeable Rosemary Trustam at rosecli@btnternet.com or call 01257 270430
consequences of sexual relatons

www.cl-initatves.co.uk Community Living Vol 31 No 2 | Winter 2017 11