Consent & Decision-Making

6.1    The Mental Capacity Act 2005 sets out the following five key principles in relation to decision making and capacity:

• Assume capacity unless it is proved otherwise
• Give all appropriate help before concluding someone cannot make their own decisions
• Accept the right for individuals to make what might be seen as eccentric or unwise decisions
• Always act in the best interests of people without capacity
• Decisions made should be the least restrictive of their basic rights and freedoms

6.2    For guidance on assessing capacity please refer to the GCC Mental Capacity Act Summary and Guidance for Staff and the 2gether Consent Policy.

6.3    All sexual activity between individuals must be consensual. Any sexual act that takes place between two, or more, people where one of them is not consenting, or does not have the capacity to consent, is classed as sexual assault or rape.

6.4    The following may be considered when assessing whether an individual has the capacity to consent to a sexual relationship:

• They understand what sexual acts are
• They understand they can say ‘no’ to anything they do not want to do
• They can understand what behaviour is inappropriate, eg. Sexual acts between members of the same family are not normal, and are illegal
• They can understand, in general terms, the possible consequences of a sexual act, eg. pregnancy or sexually transmitted disease

6.5    The ability of a person to give consent should be judged in each particular circumstance and time. Advice of professionals, such as psychologists, psychiatrists, speech and language therapists and independent advocates may be sought if there is doubt that a person can give consent.

6.6    Consent does not have to be verbal. Care must be taken to ensure that service users are given the opportunity to communicate consent in the manner that they are used to. This could be using makaton, picture boards etc. Where appropriate, advocates can be used. What ever methods are used to communicate with the service user the interpretation of what they want and understand must be recorded in their notes.

6.7    Consent is a continuing process and can be withdrawn at any time.

6.8    Whilst seeking to be supportive of consensual and healthy sexual activity, staff need to be alert to abusive or exploitative behaviour. This must be reported to their line manager, with a view to informing the police or invoking the Multi agency safeguard policy and procedures | Safeguarding Adults in Gloucestershire. The police must be involved if there is any immediate danger. Where a service is registered and inspected, they should also comply with the requirements of the Care Quality Commission. Staff are reminded of the need to cease questioning service users about an incident if there is any likelihood of a police investigation. Where it is identified that a person with a learning disability may put themselves or others at serious risk of harm by their sexual behaviour a referral must be made to MARMAP (Gloucestershire Multi-Agency Risk Management and Assessment Project).

6.9    The service user’s rights and wishes are central to all decision-making. A service user’s personal preferences in their relationships and sexual behaviour may bring them into conflict with family members and others involved in their care. They may need to be offered an advocate to enable them to resolve such conflict.