Sexual Offences Act – issues where both individuals lack capacity

Psychiatrists, especially those working with people with intellectual disabilities, may encounter situations where two individuals who engage in sexual contact both lack capacity. It may be that the contact is consensual, but it could be argued that the individuals are committing an offence, as both parties lack capacity. However, to construe the act as an offence would be tantamount to asserting that individuals lacking capacity should not engage in sexual contact, and this could be seen as an infringement of their human rights.

There is no simple answer to such a situation. The sexual contact might be grounds for initiating safeguarding procedures if there is a power imbalance between the concerned persons. Where the act is consensual, clinicians are faced with a dilemma and need to balance the patients’ autonomy and rights against their professional duty of care to protect patients. A best interests meeting might help to resolve the issues and arrive at a consensus of opinion.