Dr Celia Harbottle

http://www.celiaharbottle.co.uk
Celiaharb@aol.com
• This session aims to examine the issues of
sexual relationships for people living with
autism balancing their basic human rights with
safeguarding issues.
• This will be achieved by considering issues of
capacity, rights and consent; vulnerability and
social disability in sexual relationships and the
role of carers and professionals in helping, and
possibly protecting, people with autism.
• ECHR Articles
 2 right to life
 3 prohibition of torture and inhumane treatment
 5 liberty and freedom
 6 fairness in decision making
 7 no punishment without law
 8 respect for family and private life
 9 freedom of thought, conscience and religion
 10 freedom of expression
 11 freedom of assembly
 12 right to marriage and to found a family
 14 prohibition of discrimination
• 2003 Sexual offences act:
– Consent: consent can be given if the person can refuse
consent.
– This is the common law test and stands outside the
Mental Capacity Act 2005 as its principles cannot be
applied. (it would not be reasonable to make a ‘best
interests’ decision to consent for example)
– Baroness Hale has recently challenged the common
law test in Re C [2009] UKHL 42 ‘I cannot think of an
activity more person specific and situation specific than
sexual relationships’
 The Mental Capacity Act’s section 1 main principles
1. A person must be assumed to have capacity unless proved
otherwise.
2. Until all practical steps have been taken to help someone
make a decision without success, they cannot be treated as
lacking capacity.
3. An unwise decision does not in itself indicate a lack of capacity
4. Any act or decision made on behalf of a person lacking capacity
must be done in the person’s best interests.
5. Any act or decision must be the least restrictive option to the
person in terms rights and freedoms of action.
 The MCA 2005 encourages maximising the
decision making abilities of individuals.
 Its functional test of capacity is decision and
time specific and to have capacity an individual
will be able to:
Understand
Retain
Weigh up
Communicate
 Everyone who is 16 and over is assumed to have
capacity to consent
 If 2 people have sex together but neither have the
capacity to consent to sexual activity, neither will be
prosecuted under the offences specified in the Sexual
Offences Act 2003
 Sections 30-33 of the Act deal specifically with
offences against people with a mental disorder who
are unable to consent to or refuse sexual activity
 Sections 30-33 apply where sexual activity
involves someone who doesn’t have the
capacity to consent because:
They lack sufficient understanding of the nature or
possible consequences of what happens
Or they are unable to communicate such a choice
Or for any other reason
 Someone’s capacity to choose could be
considered to be impeded if, for example:
 They are unclear about the distinction between personal
care and sexual activity
 They don’t understand the link between intercourse and
pregnancy
 They are unable to make themselves understood
 They didn’t know about sexually transmitted infection
 They didn’t know they were allowed to make a choice
 Responsibility which is shared by all staff, at all levels,
across all sectors, to take appropriate action where there is
a suspicion or allegation of abuse
 Staff have an individual responsibility to protect people from
immediate or continuing harm by making know their
concerns about abuse in order that full consideration can be
given to whether or not further action is needed.
 A failure to do this is a failure in your duty of care and could
be perceived as negligent practice, which may, in some
cases, lead to disciplinary or other action.
 Abusive behaviour – that which is either intended or
experienced as abusive
 Unacceptable behaviour – neither intended or
experiences as an abuse but one of the parties lacks
the capacity to consent to involvement
 Acceptable behaviour – that which is consented to by
both parties and neither intended or experienced as
abuse
 Mental impairment impeding choice – if the act was
not intended or experienced as abuse then it could be
labelled as unacceptable, but should not be
stigmatised as abuse.
 McCarthy & Thompson (1993)
 YES – if they targeted the most vulnerable
 YES – if they tried to hide the behaviour
 YES – if it was experienced as abusive
Key indicators
 Use of violence or intimidation
 Different levels of ability
 Differences in age
 Who takes the initiative
 Disapproval has an effect on the behaviour
 Individual rights – to a fair trial, a solicitor and
an ‘appropriate adult’
 Autonomy vs protection
 Best interests
 The needs of the victims
 Parity – (men with LD are often detained longer
than men with MH)
 Rationing of resources
 Policies
 Service user education, advocacy and self advocacy,
assertiveness
 Staff training – to recognise abuse
 Service management and design – i.e. gender
specific, dignified environment, risk assessment
 Commissioning – local capacity to move people
immediately
 Legal – trained appropriate adults, police liason
 As a social disability, so much of the
communication in courting is non-verbal and
extremely subtle. They can mis-read cues.
 Sometimes people with Autism find it difficult
to understand that someone else may have a
different point of view
 Some people with autism find it difficult to
imagine the consequences – this can make
them extremely vulnerable.
 Fanstone, C. & Andrews, S. (2009) Learning
Disabilities, Sex and the Law: a practical guide.
Fpa, London
 Thompson, D. & Brown, H. (2006) Men with
Learning Disabilities who Sexually Abuse:
working together to develop response-ability.
Pavillion, Brighton
 McCarthy, M. & Thompson, D. (1998) Sex and
the 3 ‘R’s. Pavillion, Brighton
 http://www.39essexstreet
 Re C [2009] UKHL 42
 Jones, R. (2010) Mental Capacity Act Manual:
fourth edition. Sweet & Maxwell, London
 Pritchard, J.(ed) (2009) Good Practice in the
Law and Safeguarding Adults: criminal justice
and adult protection. JKP, London
 HMSO: (2003) The Sexual Offences Act

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