Literature Review on Provision of Appropriate and Accessible ...

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(2003) has observed that there has been far less consideration of capacity
in the context of consenting to sexual relationships. In most European
countries there is no requirement that someone engaging in sexual
activity should <strong>Literature</strong> exercise <strong>Review</strong> ‘informed on Provision consent’ of Appropriate of the kind and required Accessible for
medical treatment Support (i.e. to People to be with informed an Intellectual and to choose Disability voluntarily). who are Murphy
and Clare (2003) Experiencing note that Crisis there Pregnancy seems to be no need in law for a person
to demonstrate that he or she understands the nature of sexual activity,
its benefits and risks and possible alternatives. According to the British
Medical Association and the Law Society (BMA and the Law Society,
2004), deciding to enter into a sexual relationship with another individual
is a personal decision, which does not generally require any formal
contract or test of capacity. In Ireland men and women can give legal
consent to either opposite or same sex relationships at the age of 17. [62]
In this regard, legislation on mental capacity in England and Wales,
the Mental Capacity Act 2005, does not cover people who lack capacity
to consent to have sexual relations, as it was considered that such a
decision was so personal to the individual concerned that it could not be
made on behalf of a person.
McCarthy and Thompson (2004) state that in the learning disability field,
people must have free choice and informed consent when it comes to
sexual relationships. They considered that the conditions that should
exist for free choice included the following:
• For valid consent to sex, women with learning disabilities must
know that sex, especially when initiated by a more powerful
person, is not required and compulsory.
• People must have sufficient communication skills to be able to
make their choice (to engage in sexual activity or not) known to
the other party. This means that either verbally or through an
alternative communication system known to both parties they
must be able to give/deny/withdraw consent at any stage in the
activity. Silence or non-communication must not be interpreted
as consent.
62 The Criminal Law (Sexual Offences) Act 2006 established a common age of
consent to sex at 17 for males and females, whether it is a heterosexual or
homosexual relationship.