Legal Context

From the age of 18 (or from the age of 16 in the case of sexual intercourse and medical consent) people with learning disabilities have the right to make their own decisions. This includes participating in consensual sexual activity that is lawful. These rights are only constrained where the person is assessed as lacking the capacity to consent. Staff need to be aware of the processes and procedures for assessing capacity and seek advice where necessary. Link to section on capacity and consent.

Staff are often faced with situations which challenge them. It is important to work within the law while acknowledging individual rights.

There are five Acts that are directly relevant to sexual behaviour of people with learning disabilities:

• Mental Health Act (1983)
• Sexual Offences Act (1985)
• Human Rights Act (1998)
• Sexual Offences Act (2003)
• Mental Capacity Act (2005)

 Human Rights Act (1998)

The following Convention rights are of particular relevance to this policy:

Article 8 - Right to respect for private and family life
Article 9 - Freedom of thought, conscience and religion
Article 12 – Right to marry

Sexual Offences Act (2003)

This provides a comprehensive new legislative framework for sexual offences, setting out clear boundaries for what is and is not acceptable.

It uses the same definition of ‘mental disorders’ as the Mental Health Act 1983: “mental illness, arrested or incomplete development of mind, psychopathic disorder and any other disorder or disability of the mind”. This includes people with learning disabilities.

Sections 30 to 33 relate to offences against people who cannot legally consent to sexual activity because of a mental disorder impeding choice. Sections 34 to 37 relate to offences against people who may or may not legally be able to consent to sexual activity but are vulnerable to inducements, threats or deception because of a mental disorder.

The Act does not intend to interfere with the right to a full and active life, including sexual life, of people with mental disorder who have capacity to consent. Neither does it intend to prevent care workers from providing legitimate care including sex education.

However it does recognise the importance of protecting people with mental disorders from sexual abuse by people with whom they are in a relationship of care.

Sections 38 to 44 contain new offences for people who are engaged in providing care, assistance and services to someone with a mental disorder (including people with learning disabilities).

These sections are intended to protect people with learning disabilities from abuse. While it is acknowledged the majority of people working with vulnerable adults are conscientious, responsible people, the law must be able to deal with the minority who betray the trust placed in them.

Among the offences listed in this new Act are: sexual activity with a person with a mental disorder; causing or inciting a person with a mental disorder to engage in sexual activity; sexual activity in the presence of a person with a mental disorder and causing a person with a mental disorder to watch a sexual act.
 
Sex and the Law a brief guide for staff working with people with learning difficulties by M Gunn remains a useful reference but it must be remembered that it has not yet been updated to include the Sexual Offences Act 2003 and other recent changes to the law (including the repeal of Section 28 and the lowering of the age of consent for gay men to 16 years)

National Policy Context
Valuing People Now 2009

Valuing people now sets out the Government's strategy for people with learning disabilities for the next three years following consultation. It states:

“This strategy emphasises the importance of enabling people with learning disabilities to meet new people, form all kinds of relationships, and to lead a fulfilling life with access to a diverse range of social and leisure activities. it also emphasises their right to become parents and the need for adequate support to sustain the family unit. There is evidence that people with learning disabilities have limited opportunities to build and maintain social networks and friendships”.