Psychiatrists talk about sex a lot, apprently, so it's about time it was blogged.
The Mental Capacity Act 2005 has had explanation on it's implementation through the Code of Practice which presents helpful guidance.
I have a lady who has dementia. She enjoyed frequent intimate relations with a longstanding friend who has had a turn for the worse and been admitted to hospital. When his name is mentioned her face lights up.
Since he was admitted months ago, another man has started seeing my patient who is an affable old dear and opens her door to anyone. He has started having intimate relations with her. She has repeatedly told nursing staff she doesn't like him but then on other occasions is confused and is more ambivalent. When his name is mentioned she recoils. Her daughter is mortified the man who her mum hardly knows has no relationship with mum except for sex and wants the man to go away and never see mum again.
Within the meaning of the Mental Capacity Act 2005 she is an incapacitated adult. She can not consent to sex. The Code of Practice says in 1.10 that there are ". . . specific decisions which can never be made . . . by family members, carers, professionals, attorneys or the Court of Protection." The subsequent list includes, "consenting to have sexual relations."
She can not consent to having sexual relations and the Mental Capacity Act 2005 makes it clear that nobody can consent on her behalf.
Is it that incapacitated adults can't have sex? Can the issue be ignored? Is it that a man, having sex with a woman without consent, should be charged as a sex offender?
6 comments:
Is there a case here for taking into account the patient's alarm and disgust with the one man, and her complacancy with the other? Perhaps there would be a role for looking at her pre-morbid functioning, if the first man has been her partner for a long time. If the loophole in the law didn't exist, of course.
My personal view would be that in this case, where the patient is so evidently distressed at her relations with the second man, that he is indeed committing a grevious sexual offense. If she's afeared of him, she wouldn't consent were she able to.
Can the issue be ignored? For your patient - hell no. Our duty of care extends beyond that which the law determines.
/end intense reply.
I am inclined to agree with milk and two sugars re her totally different attitudes to the two men. I am puzzled, however, as to who takes what action to prevent him taking advantage of your patient.
Ignoring the problem will not make it go away and may even make it far worse (how about claiming more than the "rights" he now has, and ending up taking control of her money too?)
Sounds like a POVA case in the offing to me.
Sex? No thanks dearie, we're British.
What a fascinating loophole!
Perhaps you could implement the MCA when Mr Nasty is around, but then turn a blind eye when Mr Right gets out of hospital?
Zarathustra, I have indeed commenced Protection Of Vulnerable Adult (POVA) proceedings since I'm feeling a touch muddled. The senior Decision Maker mused over this then asked me my views . . .
Perhaps you could implement the MCA when Mr Nasty is around, but then turn a blind eye when Mr Right gets out of hospital?
Pragmatically that sounds right.
For us to decide what's an offence and what isn't does seem curiously outwith medical school training and professional roles though.
Spoke to police today who seemed to have views at variance with my own ("you mean dementia is a type of mental illness?") so really weren't up to speed with incapacitated adults/consent/vulnerability.
We shall see what POVA and police input in to that can generate . . .
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