Literature Review on Provision of Appropriate and Accessible ...

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a higher degree of protection for potentially vulnerable adults (Evans and
Rodgers, 2000).
The issue of <strong>Literature</strong> how to define <strong>Review</strong> capacity on Provision to consent of Appropriate to sexual and relationships
Accessible
Support to People with an Intellectual Disability who are
was considered by the British Medical Association and the Law Society
Experiencing Crisis Pregnancy
(BMA and the Law Society, 2004). Entering into a personal relationship is
a personal decision, which does not require any formal contract or test
of capacity. Where the situation arises, the common law test of capacity
to consent to sexual relations follows the usual form. This says that the
person must be able to:
• Understand and retain information about what is proposed and
its implications.
• Exercise choice. (It is important to consider whether one party is
in a position of power which will influence the ability of the other
party to consent.)
Murphy and Clare (2003) note that this implies that at a minimum
people would need to understand what sexual intercourse was and that
pregnancy and/or sexually transmitted diseases were risks (as well
as being able to make a free choice). The BMA and the Law Society
(2004) recognised the importance of taking into account the particular
circumstances of the individuals involved; for example, whether one
person is in a position of power, which influences the ability of the other
to consent in an unpressured way.
Murphy and Clare (2003) observed that this definition of capacity was not
always accepted in the courts. For example, in one case in England, R v
Jenkins, a care worker was acquitted of the rape of a woman with severe
intellectual disability, despite forensic evidence of his guilt, because he
argued that the woman consented and the judge accepted a very low
standard for consent (Murphy, 2000). [63] The woman had only a very
basic understanding of the names of a few body parts and unquestionably
no concept of what sexual intercourse or pregnancy meant (O’Callaghan
and Murphy, 2007). This case illustrated the significance of the definition
63 The judge ruled that free and informed consent was not necessary (McCarthy and
Thompson (2004).