SUMMARYPeople with mental disorder and intellectual disability have the same rights to sexual expression as other people, albeit that in some cases a lack of capacity may require curtailment of those rights and regard must be had to protecting the vulnerable. Furthermore, the formation or maintenance of sexual relations, or the attainment of sexual fulfilment, may assist in the maintenance or restoration of mental health or well-being. This article demonstrates how the courts in England and Wales, applying statute law and judicial precedent, are largely supportive of the rights of people with mental disorder or intellectual disability to make decisions about sexual expression, sexual relationships and related matters, notwithstanding some societal and staff attitudes that act to prevent them fulfilling their sexual needs and making decisions about sexual and reproductive matters.LEARNING OBJECTIVES•Understand the underlying principles that apply to the exercise of their sexual rights by people with mental disorder or intellectual disability•Understand some of the obstacles to the exercise of sexual rights by people with mental disorder or intellectual disability•Understand the statute and case law that apply to the exercise of sexual rights by people with mental disorder or intellectual disabilityDECLARATION OF INTERESTNone.
SUMMARYClear policies regarding sexual expression, sexual behaviour and related decision-making assist in ensuring that the rights of people with mental disorder or intellectual disability are upheld, and that staff know how to react to situations consistently and lawfully without interfering on the basis of their own moral judgements or personal beliefs. Sensitive and holistic planning of care that complies with domestic law, international human rights law and statutory guidance is necessary to complement such policies. Non-intimate physical contact, masturbation, sexual relationships, contraception, sterilisation and vasectomy, pregnancy, termination of pregnancy, sexual dysfunction, parenthood, marriage and civil partnership, divorce, prostitution, pornography, and sex aids and toys are all matters that may properly be part of care planning.LEARNING OBJECTIVES•Understand the limited legal basis for the formulation of policies and rules concerning sexual expression, sexual behaviour and related decision-making by people with mental disorder or intellectual disability•Be able to formulate policies concerning sexual matters as they relate to people with mental disorder or intellectual disability•Be able to plan care for psychiatric patients and community service users balancing their rights to sexual fulfilment with the protection of their own welfare and the protection of othersDECLARATION OF INTERESTNone.
The Draft Mental Health Bill for England and Wales proposes a range of changes to the Mental Health Act 1983. Among these is a proposal to amend the definition of ‘Mental Disorder’, which would mean that people with a primary diagnosis of autism or learning disability would be excluded from most of the civil sections of the Act. If enacted, this will be the first occasion in English and Welsh law where a legal definition of autism is created. While we argue that there are inherent difficulties in creating legal definitions of clinical problems, this ‘legal Autism’ appears to be substantially disconnected from a clinical understanding of autism, and its breadth could potentially encompass conditions beyond those currently identified as autism. Moreover, numerous potential unwanted practical consequences may arise from these changes, partly because of uncertainty about the legal position of presentations that share features with autism, uncertainty about the process of assessment of ‘legal Autism’, and potential perverse incentives placed on local authorities. We argue that particular groups of people likely to be impacted by these changes are those who not only present with profound clinical impairments, but also with significant risks to others. We urge serious consideration is given to these issues in the legal debate of the Bill.
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