The capacity to consent to sex in mental health inpatient units

Abstract

Objective: Discussions of capacity to consent in mental health care usually revolve around capacity to consent to treatment. This paper instead explores the issue of capacity to consent to sexual activity in a mental health inpatient setting as a way of exploring capacity from a different perspective. This is not a purely theoretical exercise, with both consensual sexual activity and sexual assault commonplace in mental health inpatient units, current policy and practice approaches are clearly not working and require re-examination. Methods: Four key frameworks are explored: human rights law, mental health law, the criminal law and the law of tort governing the duty of care. These frameworks are explored by highlighting relevant case law and statutes and considering their potential application in practice. This is undertaken using the state of Victoria, Australia, as a case study. Results: The four frameworks are shown to be consistent with each other but inconsistent with contemporary policy. All four legal frameworks explored require clinicians to take a case-by-case assessment to ensure that a person’s right to make their own decisions is preserved ‘ unless the contrary is demonstrably justified’ or where it is ‘ legally demanded’. While Victorian inpatient units attempt to enforce a blanket ban on consensual sexual activity in inpatient settings, this ban may be without legal basis and may be in breach of both human rights and mental health law. Conclusion: In policing the lawful bodily interactions of their patients and pushing sexual activity out of sight, clinicians may be breaching their duty of care to provide sexual health support and risk creating an environment in which the therapeutic relationship will be sacrificed to the enforcement of institutional policy. Clinicians and policymakers must understand the relevant legal frameworks to ensure that they are acting ethically and lawfully.

Isolated Psychiatric Ward Patients in Southern Israel with Severe Mental Illnesses Describe Their Sexual Needs: A Qualitative Study

“…Thus, it seems that there is currently no consistent and comprehensive policy that dictates sexuality-related practice within hospitals in Israel. Taken together, the current literature confirms that the existing approach to mental patients' sexuality is inadequate and requires reexamination [25]. New, progressive policy is needed to truly address patients' sexual needs and go beyond perceiving the issue in terms of risk management [39].…”

“…There are potential risks both to providing opportunities for sexual activity in the hospital and to coerced sexual activity or control over another person. Therefore, hospitals must establish clear guidelines for maintaining patients' health [25].…”

‘It’s Not Really a Part of Standard Practice’: Institutional Silencing of Sexuality Within Australian Mental Health Settings

“…In this study, participants working in inpatient settings had difficulty navigating the presence of prohibitive, risk-oriented policies regarding sex and sexual expression. Indiscriminate ‘no sex’ policies or cultures are common in inpatient and residential settings in Australia, but these are not well aligned with a Recovery approach (Evans et al, 2020), nor supported by human rights law, mental health law, criminal law or duty of care (Maylea, 2019). The practicality of responding appropriately to individuals’ sexuality-related needs in inpatient and residential settings poses a complex challenge.…”

Sexual Coach in High-Functioning Autism: A Growing Need

“…Therefore, sexual coaching may be really helpful to overcome sexual dysfunction in people with different neurological and psychiatric disabilities. Nonetheless, if, usually, patients with brain or spinal cord lesions often retain the capacity to consent to “sex activities”, this is not the case for individuals with intellectual disabilities, including ASD [ 11 ]. Indeed, if, on the one hand, patients with ASD have the right to live life to the fullest, pediatricians have practical concerns regarding their ability to consent to sex as well as avoid coercion and manipulation in sexual encounters [ 12 ].…”