Care home practitioners and old age
psychiatrists have been warned that they could face long jail
sentences if they allow a patient with dementia to have sex even
with a long-term partner.
The warning, delivered by Professor Peter
Bartlett, Professor of Mental Health Law at Nottingham University
to the Annual Conference of the Royal College of Psychiatrists,
follows widespread concern within care homes that staff might be at
risk of prosecution under the Sexual Offences Act 2003.
Professor Bartlett said: “Take the case of a
husband who comes visiting on a Saturday afternoon and closes the
door of his wife’s room, leading to staff making the assumption
that they are having sex. It may seem perfectly acceptable at one
level. But because someone with dementia does not understand
what sex means, the encounter is sexual assault and therefore
extremely illegal.”
Professor Bartlett, who has investigated the
problem after numerous requests for clarification from health care
practitioners, said that hundreds of care homes face this dilemma
every single day: whether they should prevent a married couple from
having sex while also attempting to provide patient-centred care.
He said: “The Mental Capacity Act provides the
opportunity for people to document their wishes in an ‘Advanced
Directive’ in advance of suffering from dementia. But sex is
rightly considered too personal a decision to be included in such a
directive. The husband may assume a continuing consent to sex based
on the long-term relations he has had with his wife. But I find it
difficult to find a reason to make this assumption.”
Professor Bartlett said that people with
dementia living at home with a partner presented an even more
complicated scenario. “Technically they should be on the vulnerable
adults at risk register. It is somehow easy to understand how this
law can be applied to children who lack the capacity to understand
the meaning of the sexual act. We should not behave differently
when it is an older person who lacks capacity.”
Speaking after the meeting, Dr Peter Jeffreys,
consultant old age psychiatrist at Northwick Park Hospital in North
London, said there was an ‘iceberg situation’ with an urgent need
to clarify how clinicians can manage sexual activity among dementia
patients while protecting against abuse. “If a person lacks
capacity, a clinician or care home staff member could be seen as
colluding in a criminal act. Opportunities for intimacy are clearly
an important aspect of quality of life but sex may be a step too
far in residential care,” Dr Jeffreys said.
For further information, please contact Liz Fox or Deborah
Hart in the Communications Department.
Telephone: 020 7235 2351 Extensions. 6298 or 6127
References:
Royal College of Psychiatrists' Annual Meeting, Imperial College, London, 1 - 4 July 2008