‘Sometimes we conflate risk and worries with reasons to assess sexual capacity,’ said Dr Catriona McIntosh, Consultant Clinical Neuropsychologist at Yorkshire Neuropsychology. She was speaking at the 2023 Annual Review of the Mental Capacity Act 2005 hosted by Switalskis.  

In her thought-provoking presentation, Dr Catriona McIntosh delved into the intricate aspects of assessing sexual capacity that are often misunderstood. Her talk focused on the civil law test of capacity based on the Mental Capacity Act 2005 and associated case law.

Critical examination: is a sexual capacity assessment truly necessary?

Dr. McIntosh urged professionals to analyse why exactly they may be asking for a sexual capacity assessment. She emphasised that it’s essential to remember that sexual capacity should only ever be assessed if there is a reason to doubt it. Just because a client has a care plan for their sexual needs, this does not mean they require a capacity assessment. Dr. McIntosh highlighted that sometimes, it’s possible to conflate risk and worries with real reasons to assess sexual capacity. The clinician must take on the role of reminding professionals that they are to assume capacity unless there is a clear reason to think otherwise.

In answering the question of whether an assessment is necessary, Dr. McIntosh referred us to the landmark case of A Local Authority v JB (2021). JB is a man on the autistic spectrum who wished to engage in sexual activity and who understood the mechanics of sexual intimacy, but did not understand the need for the other party to also consent. The Supreme Court supported Lord Justice Baker’s conclusion that sexual activity needs to be a mutually agreed activity. With this consideration of consent being fairly new within the law, Dr. McIntosh drew our attention to just how basic the bar is for sexual relationships.

The current ‘bar’ for sexual relations:

Dr McIntosh informed us that when engaging in sexual relations, one must be able to understand:

The mechanics of sex

• Consent
• The possible health risks
• The nature of the type of sex
• The reasonably foreseeable consequences, such as pregnancy

However, according to case law, one does not need to accurately understand the risks of pregnancy. Strikingly, London Borough of Southward v KA decided that an individual who believed pregnancy could only occur during marriage was not adequate to displace the presumption of capacity.

Regarding contraception, one only needs to know that it exists – there is no need to be able to actually use it, as ruled in LB of Southwark (2016). Individuals do not need to understand the social or emotional consequences of pregnancy, nor what it means to care for a child. To put it simply: the ‘bar’ is very low.

Dr. McIntosh is clear that before assessing capacity to engage in sexual relations, attempts must be made to enable capacity. This can be achieved through checking P’s understanding and providing information on any gaps or misunderstood areas. As put by Dr McIntosh, we don’t conclude that people can’t drive without a driving lesson – in the same vein, we must not decide on P’s capacity before ensuring they have been provided with all the relevant information.

Complexities – social cognition, culture and the definition of sex

With the current bar for engaging in sexual relations in mind, Dr. McIntosh then explored the complexities that could pose challenges for clinicians when assessing capacity.

Social cognition refers to our ability to recognise the emotional states of others and to acknowledge that their thoughts differ from our own. Referring to the case of JB, Dr. McIntosh highlighted how difficulties may occur with patients who:

• Don’t know how best to express their own consent
• Struggle to read emotions
• Can’t always comprehend communication
• Finds inhibiting their own actions a challenge

This is an area that isn’t typically explored during capacity assessments, which tend to focus on an understanding of the mechanical act rather than behaviour in the actual moment. In such situations, Dr. McIntosh recommends using images to check P’s recognition of visual cues, their ability to understand verbal consent, and their ability to apply this in their day-to-day life.

Dr. McIntosh then guided the audience to contemplate two complex questions:

• What is the definition of sex?
• What happens when somebody can understand the mechanics of certain actions but not others?

Interestingly, Dr. McIntosh emphasised the importance of acknowledging grey areas in cases where there is no clear guidance. P’s level of understanding about the mechanics may need to be considered. In the case of London Borough of Southwark v KA it was set out that P doesn’t necessarily need to understand all the information. Holding an understanding of the information that is most relevant to them at a reasonable level is sufficient.

With that in mind, Dr. McIntosh explored the complexities that may arise surrounding P’s culture and beliefs when assessing capacity. She recalled an assessment she undertook with a 45-year-old P who was confusing different types of sexual acts – but who informed Dr. McIntosh that these acts are forbidden in Islam, and therefore irrelevant to her. Dr. McIntosh again set out the grey areas, and notes that if these capacity assessments were specific to each person, then the outcome may be clearer, but this is not the case. There were important facts to note, such as that P was instigating sexual contact with men other than those of her same cultural beliefs. This case highlighted the challenge in evaluating capacity where there may be complexities with culture and understanding. Ultimately, it’s important that the clinician sets out the way in which they weigh their consideration of the issue.

Dr. McIntosh highlighted how clinicians approach capacity assessments using their own knowledge and experiences, and it is essential to be mindful of biases. There can be limitations stemming from this – what might a clinician know, or rather not know, about the sexual relations of patients who are of a different sexuality, or of other cultures and religions?

Sometimes, the concerns of others may not exactly be about sexual relations but rather about P’s potential vulnerability in relationships and their ability to stay safe. Capacity assessments, Dr. McIntosh notes, may need to incorporate areas such as capacity to use social media or capacity for using contraception. The ‘bar’ for these decisions are higher than the bar for engaging in sexual relations. It is possible to have a case in which someone has capacity to engage in sexual relationships, but lacks capacity to choose their sexual partner, or to manage their own financial issues.

Additionally, Dr McIntosh recalls from her experience that capacity assessments can be a huge barrier to rehabilitation. It is paramount to provide clients with support regarding social skills and ways to stay safe. As Dr McIntosh points out, just because somebody lacks capacity for sexual relationships, there is no reason they can’t have an interest in going on dates.

It's not all about capacity

Dr. McIntosh ended her captivating speech by emphasising the importance of conversation. Research shows that professionals do not ask patients enough about the difficulties they may be experiencing. If conversations aren’t taking place regarding sexuality or relationships, it is impossible to know whether one needs to consider capacity. ‘This is an area with a slight over-focus on capacity rather than the individual’s needs,’ said Dr. McIntosh. ‘Some of my clients might say everything is physically fine, but that they are experiencing social difficulties’. She stressed the importance of normalising conversations with P surrounding their feelings and their bodies, with permission. Simply asking clients if there is anything they are struggling with can lead into the need to consider capacity, and can also be profoundly important in identifying other difficulties P may be facing.