As recognised by Debbie Westhead, Interim Chief Inspector for the CQC, ‘[…] the best care is person-centred and in supporting relationships and sexuality there can be no one approach that fits all’. The new guidance seeks to detail how providers should consider service users’ relationships and sexuality needs. It addresses a number of issues ranging from gender identity, sexual disinhibition and how providers can support people with accessing dating services.
Usefully, the guidance sets out questions for inspectors and lists the sources of evidence that the CQC will be interested in, when it comes to assessing whether providers recognise and support service users with their sexuality needs.
Capacity to consent to sexual relations
Within the guidance the CQC draws attention to s.27 of the Mental Capacity Act (MCA) 2005, highlighting that best interests decisions cannot be made in relation to sexual relations. The CQC advises providers to consider the following when establishing capacity in relation to sexual activity:
Does the person understand:
- that they have a choice whether to have sex and can refuse
- that they can change their mind at any time leading up to, and during, the sexual act
- the mechanics of sex
- associated health risks, particularly the risk of sexually transmitted infections
- that sex between a man and a woman may result in the woman becoming pregnant.
Although it is not intended to be a comprehensive code, the guidance is likely to be welcomed by service providers. It does not however highlight that consideration should also be given to whether service users have capacity to make decisions regarding social contacts which may lead ultimately to sexual relations. That may involve a separate determination of capacity. In Manchester City Council Legal Services v LC & Anor  EWCOP 30, Hayden J commented:
‘[t]hus, though it may not be intuitive, it is perfectly logical, looking at capacity in an issue-specific context (as the MCA requires), to possess the decision-making facility to embark on sexual relations whilst, at the same time, not being able to judge with whom it is safe to have those relations.’
Further as noted in Local Authority X v MM  EWHC 2003 (Fam), capacity to consent to sexual relations is act specific and has to be assessed in relation to the particular activity in question. Thus it is highly unlikely that a one off assessment covering ‘sexual relations’ will suffice. Where it is difficult to determine, the CQC notes professional advice must be sought and cases may be referred to the Court of Protection for determination. The CQC advises providers to take steps to prevent people in their care having sex if they are deemed to lack capacity.
Safeguarding, sexual offences and responding to incidents
As identified in the recent CQC review of sexual safety on mental health wards, it is apparent that many providers are uncertain as to how best to promote sexual safety and many staff are ill equipped to deal with incidents and do not always feel adequately protected.
The CQC has given some general guidance on how to respond to incidents, and advises that providers develop and might expect includes informed and individualised care and support plans to prevent safeguarding incidents from developing – the absence of which was a key failing in the Hillgreen case.
The importance of preservation of evidence and protecting crime scenes is emphasised .There is also link to ss.30-33 of the Sexual Offences Act 2003 concerning ‘Offences against persons with a mental disorder impeding choice’. No further detail is provided and further guidance would be very helpful to assist providers in the development of their training and policies, not least to rule out any suggestion of complicity in such offences.
The guidance suggests that induction and ongoing training for staff regarding sexuality and relationships will assist staff to approach the issues in a considered way. Training and awareness of Equality, Diversity and Human Rights (EDHR) should help staff explore their own assumptions or bias about the sexuality needs of older people or those living with disabilities. Training should also cover how to identify people at risk of exploitation and how to report this.
Information about relationships, sexual habits and intimacy should be gathered by ‘competent and confident staff’ and EDHR training should also help staff reflect on their duty to maintain compassionate yet professional boundaries. In practice this is likely to be a challenging task.
Appendix 1 of the guidance shows how sexuality may be considered within various key lines of enquiry. Providers should take note that the CQC expects registered managers, providers and registration applicants to be able to explain how their service supports people to meet their sexuality needs and to describe specific measures which have been implemented.
Should you require any further information or wish to discuss please do not hesitate to contact our team.
Full guidance can be accessed here: https://www.cqc.org.uk/sites/default/files/20190221-Relationships-and-sexuality-in-social-care-PUBLICATION.pdf
This briefing is for guidance purposes only. RadcliffesLeBrasseur accepts no responsibility or liability whatsoever for any action taken or not taken in relation to this note and recommends that appropriate legal advice be taken having regard to a client's own particular circumstances.