Literature Review on Provision of Appropriate and Accessible ...

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autonomy and fulfilment. In commenting on Section 5 of the 1993 Act he
considered:
Unless complemented with other guarantees to maximise
individual freedom of choice, it [Section 5 of the 1993 Act] may
swing the balance too far in the direction of depriving mentally ill
or disabled persons of the right to a sexual life compatible with
their physical, mental and emotional capacities ... the section
fails to reflect the rights of persons who are mentally impaired to
have a sexual life. (O’Malley, 1996: 133)
Support to People with an Intellectual Disability who are
Accessible
and Appropriate of Provision on <strong>Review</strong> <strong>Literature</strong>
Experiencing Crisis Pregnancy
3.11.3 Finding an appropriate definition of intellectual disability in the
context of capacity to consent to sexual relations
It is recognised that one of the main difficulties in drafting legislation
in this area is finding an appropriate definition of intellectual disability.
In Ireland The Law Reform Commission has commented that both the
concept and definition of ‘mentally impaired’ is unsatisfactory: the
term ‘mentally impaired’ itself can be considered objectionable and
stigmatising and, secondly, the test of ability to guard against serious
exploitation (the second test in Section 5 (5) of the 1993 Act) was
considered to be a better yardstick of capacity to consent rather than
ability to lead an independent life (the first test in Section 5 (5) of the Act)
(LRC, 2005). This viewpoint has been reiterated by Namhi (now Inclusion
Ireland), who note that the criterion of being incapable of guarding
against serious exploitation was a better one. They add that there are
many people with intellectual disabilities who are not capable of leading
an independent life but who are capable of guarding against serious
exploitation (Namhi 2003).
The Law Reform Commission was of the view that if the matter arose
for consideration, Section 5 of the 1993 Act may be considered to breach
Article 8 of the ECHR by disproportionately interfering with a person’s
right to respect for his private life. The Commission stated that an option
for reform would be to amend Section 5 of the 1993 Act, drawing on the
functional approach adopted in England and Wales in relation to the
Sexual Offences Act 2003 (LRC, 2005). In concluding, the Law Reform
Commission (2005) stated that it was clear that this is a complex area
where law and society’s views are not settled and found it appropriate to
invite views on reform in the area.