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Abstract

Objective:

Discussions of capacity to consent in mental health care usually revolve around capacity to consent to treatment. This paper instead explores the issue of capacity to consent to sexual activity in a mental health inpatient setting as a way of exploring capacity from a different perspective. This is not a purely theoretical exercise, with both consensual sexual activity and sexual assault commonplace in mental health inpatient units, current policy and practice approaches are clearly not working and require re-examination.

Methods:

Four key frameworks are explored: human rights law, mental health law, the criminal law and the law of tort governing the duty of care. These frameworks are explored by highlighting relevant case law and statutes and considering their potential application in practice. This is undertaken using the state of Victoria, Australia, as a case study.

Results:

The four frameworks are shown to be consistent with each other but inconsistent with contemporary policy. All four legal frameworks explored require clinicians to take a case-by-case assessment to ensure that a person’s right to make their own decisions is preserved ‘unless the contrary is demonstrably justified’ or where it is ‘legally demanded’. While Victorian inpatient units attempt to enforce a blanket ban on consensual sexual activity in inpatient settings, this ban may be without legal basis and may be in breach of both human rights and mental health law.

Conclusion:

In policing the lawful bodily interactions of their patients and pushing sexual activity out of sight, clinicians may be breaching their duty of care to provide sexual health support and risk creating an environment in which the therapeutic relationship will be sacrificed to the enforcement of institutional policy. Clinicians and policymakers must understand the relevant legal frameworks to ensure that they are acting ethically and lawfully.

Keywords

Sex sexual activity inpatient capacity consent

Introduction

Contemporary understandings of capacity and consent are shifting and evolving as debates on feminism, disability, human rights and the state’s role in protecting vulnerable citizens dominate media headlines, policy considerations and legal frameworks. One area in which these discourses uncomfortably collide is the way sexual intimacy is responded to in inpatient mental health settings. In an environment where human rights are regularly limited, and yet where sexual violence is a common complaint, the law is poorly understood and inconsistently applied. The Convention on the Rights of Persons with Disabilities (CRPD, 2008) is a factor in driving this change in mental health law, while the #MeToo movement is shining a bright spotlight on sexual violence everywhere. Meanwhile, the mental health practice context is focused on its liabilities in tort and dominated by risk averse policy. To explore this tension, between the rights to be safe, to be intimate, to autonomy and dignity, this paper explores recent developments in capacity law, in the state of Victoria, Australia, to highlight the variety of intersecting legal frameworks which govern this issue. To highlight the tensions in practice, consider this fictional scenario:

Quinn is admitted to an inpatient unit under the Mental Health Act 2014 (Vic). While there, Quinn meets Tran, another involuntary patient. Quinn and Tran begin a relationship, which quickly becomes sexually intimate. The staff of the inpatient unit intervene, following policy, but are unable to effectively stop them. This is documented in the clinical file, and soon after Quinn is discharged.

Jordon, Quinn’s life partner then makes a complaint to the police, claiming that Quinn was sexually assaulted by Tran, on the basis that Quinn could not possibly have had capacity to consent to sex due being treated for a mental illness. The police do not proceed on the basis that Quinn is not prepared to make a statement, and the prosecution is unlikely to be successful given neither party claim the sex was not consensual. Jordon seeks legal advice but is informed that similar issues mean a civil case against the hospital is unlikely to succeed.

This scenario highlights the complexity of the laws relevant to this issue. In Victoria, Australia, mental health services are obliged to act in accordance with the Charter of Human Rights and Responsibilities Act 2008 (the Charter). There is also the Mental Health Act 2014 (Vic) governing detention and compulsory treatment and the Crimes Act 1958 (Vic)(s 40) which prohibits sexual assault. In addition, the Wrongs Act 1958 (Vic) and common law concerning the duty of care owed by the mental health service to both parties. There are other legal frameworks which will also intersect, such as the Evidence Act 2008 (Vic) which introduces issues around the reliability of evidence given by people who experience mental illness (s 165), or their competency to give evidence (s 13), and areas of administrative law which govern how decisions are made; however, they are less central and are not discussed in this paper.

Mental health inpatient units are not immune to sexual violence, as studies have shown in Victoria (Kulkarni et al., 2014; Mental Health Complaints Commissioner [MHCC], 2018; Office of the Public Advocate (OPA), 2017; Victorian Women and Mental Health Network (VWMHN), 2008, 2009) and other jurisdictions (Bowers et al., 2014; Mezey et al., 2005). Much of this is explicit and clearly criminal and is outside the scope of this paper. This paper only considers sexual acts in which consent is apparently given by both parties but where capacity to consent may be under question. For simplicity, this paper focuses on the acute inpatient environment, but due to the lack of research on this area also draws on literature concerning long-stay environments. As shown below, the law on consent makes no distinction between acute and long-stay environments, although there are many differences in practice.

The key legal frameworks relevant to this issue are human rights, mental health, criminal law and civil liability. These are assessed by engaging with relevant authorities, particularly PBU & NJE v Mental Health Tribunal [2018] VSC 564 (PBU), a recent Victorian Supreme Court Decision concerning a person’s capacity to consent to Electroconvulsive Treatment (ECT). While this case is about consenting to treatment, it represents good law on consent in mental health more broadly. ECT is a useful analogy because, as with sex, it can result in harm that is both difficult to predict and difficult to rectify.

The issue of consenting to sex in the acute environment is understudied, but what data exist indicate high levels of prevalence of apparently consensual sexual activity. Two studies have shown that 30% (Warner et al., 2004) and 38% (Welch and Clements, 1996) of people in inpatient units in those studies had engaged in some form of sexual activity, while two more have indicated that 50% (Hales et al., 2006) and 56% (McEvoy et al., 1983) of participants had formed a relationship while in long-stay secure hospitals. Qualitative studies in long-stay environments support the prevalence of sexual relationships despite prohibition (Quinn and Happell, 2015b). The lack of research literature into this area may be due to the slightly uncomfortable nature of the topic, as McSherry and Somerville (1998) write,

… staff members often react angrily to sexual activity … or deny the occurrence of sexual relationships, possibly in part because of embarrassment or as a result of their own anxiety about sexual relationships. (p. 4)

This inability to engage in mature debate is also noted by Hunter and Ahmed (2016):

The question – should hospitalized patients be allowed to express themselves sexually in socially acceptable ways? – is one that elicits knee-jerk responses among practitioners, patients, and consumer advocates. (p. 59)

Staff also report being very weary of managing sexual assault in inpatient units and very concerned about being blamed for assaults when they occur (Cole et al., 2003). One study in a forensic long-stay facility showed that nurses recognise the therapeutic benefits of relationships but that they do little to incorporate that into practice (Quinn and Happell, 2015a).

This paper intends to stimulate mature and nuanced discussion on this important topic by clarifying the relevant legal frameworks. While the desire to protect people in mental health inpatient units may be soundly based, psychiatrists can only control people when it is lawful to do so. This discussion must be had without prudishness and with a view to supporting people to make their own decisions wherever possible. As McSherry and Somerville (1998) argue,

… ignoring or repressing the needs of institutionalized individuals in relation to matters of sexuality is likely to lead to problems and exacerbate these when sexual activity does occur. (p. 5)

The risk of harm from sexual assault is not, and should not be, underestimated. The emotional and psychological harms, the potential to retraumatise, the negative impact on recovery, the risk of sexually transmitted diseases and unwanted pregnancy are all very serious consequences (Hunter and Ahmed, 2016). These concerns were also raised by long-stay forensic consumers, who identified sexual activity in acute settings as potentially very harmful (Quinn and Happell, 2016). The question is how these harms are limited and responded to, as the usual policy of simply banning all sexual interaction does not appear to be successful in preventing sexual activity. These risks must always be balanced with the harm which results from excessive coercion or control over a person, not just from a human rights perspective, but from a therapeutic and personal recovery perspective. If a person is able to consent to sex, they are able to consent to the potential harms that may derive from it. Adults in mental health inpatient units are not children, and as Carroll and McSherry (2015) warn, ‘a paternalistic approach by psychiatrists whenever choices become potentially risky stunts the capacity for personal growth’ (p. 474). Human rights law strongly supports the right for an individual to make their own decisions, particularly when they can be assessed as having the capacity to do so.

Human rights law

Historically, sexuality and psychiatry have had a troubled relationship, with sex, sexual stimulation or sexual abstinence commonly prescribed as treatment, most often for women (Tasca et al., 2012), and genuine sexual wants and needs ignored. Prior research highlights the difficulty services providers encounter when engaging with this issue, highlighting a range of conflicting requirements such as confidentiality, safeguarding around sexual health and pregnancy, while understanding that humans have sexual needs and that access to sexual intimacy is a human right (Ashmore et al., 2015; Hughes et al., 2018). This conception of access to sexual intimacy as a human right is supported by the World Health Organization (WHO) (2002) and is closely linked to reproductive rights and broader freedom rights, including freedom of association and self-determination. People who use mental health services are also at greater risk of sexual violence outside the inpatient unit (Khalifeh et al., 2015; Oram et al., 2013) and are at greater risk of contracting sexually transmitted diseases (Lagios and Deane, 2007; Walsh et al., 2014). Despite this, mental health services have consistently ignored or downplayed the importance of sex to people using mental health services (Kelly and Conley, 2004), particularly regarding the implications of medication side effects on sexual function (Elnazer et al., 2015; Montejo et al., 2018; Serretti and Chiesa, 2011). Östman and Björkman (2013) found that ‘both patients and partners reported feeling overlooked by psychiatric services as sexual beings’ (p. 4).

The denial of the human right of access to sexual intimacy is just one example of how people who use mental health services have historically and contemporaneously had their human rights denied. In the historical context of mental health treatment, the contemporary denial of any of a person’s rights must be carefully considered. McSherry and Somerville (1998) suggest,

… the starting point should be the presumption that such individuals have a right to have their autonomy (or even just their decisions concerning themselves with regard to their expression of their sexuality) respected to the greatest possible degree … any interference with such individuals’ expression of their sexuality would need to be justified. (p. 5)

Mental health inpatient units can, and regularly do, limit people’s human rights. As hospitals, mental health inpatient units are empowered by s 41 of the Health Services Act 1988 (Vic), which states that their powers ‘include all such powers as are necessary to enable the hospital to carry out its objects and do all things it is required or permitted to do under this Act’. In addition, as the landholder, general hospitals can essentially make any rules with pertain to their function and simply remove any person who does not follow them (B v Waitemata District Health Board [2013] NZHC 1702 [26], cited in De Bruyn v Victorian Institute of Forensic Mental Health (2016) 48 VR 647 [86]). These powers must be exercised in a way that is compatible with human rights as in Victoria mental health services are public authorities and governed by the Charter:

… it is unlawful for a public authority to act in a way that is incompatible with a human right or, in making a decision, to fail to give proper consideration to a relevant human right. (the Charter (s 38(1))

These rights may be limited when justified, but this limitation must be shown to be justified. Bell J writes,

… the right [of self determination] is not absolute and may be limited where this is justified according to the strict human rights standard … But the starting point is that people with mental disability have the same right of self-determination as everybody else. (PBU [128])

Bell J is very clear that the standard for limiting a person’s right is high and special care must be taken in the mental health context:

… people with mental disability not only have human rights that are equal to all others but form part of the diversity that makes up and enhances the Victorian community.

It was not always so. There was once a time when people with mental disability were feared as lunatics, pitied as imbeciles and detained in rural asylums far away from public view and private conscience. Many were treated without respect or regard for the dignity of their humanity, for their right to self-determination, to be free of non-consensual medical treatment and to personal inviolability, and for their need to access medical treatment. Too often their fate was one of discriminatory exclusion from vital aspects of personal, social and productive life, and continuing ill-health. (PBU [84-85])

As Bell J continues, citing the Charter,

It is not a purely formal step to recognise that a human right is engaged as if it warranted a mere salute in passing to some more important destination. … Public authorities must respect these boundaries … unless the contrary is demonstrably justified … or legally demanded … (PBU [108])

This lays a clear outline for when a person’s right to engage in consensual sexual activity can be restricted: ‘unless the contrary is demonstrably justified’ or ‘legally demanded’. Taking the first of these, ‘demonstrably justified’ will need to be demonstrated. It is not sufficient that a person’s human rights are limited by a mental health service unless it can be demonstrated that this is justified. This means that if mental health services assert that a person lacks capacity to consent to sex, this needs to be assessed and documented. Similarly, if there is some likely risk of harm as a result – including reputational harm, unwanted pregnancy, sexually transmitted disease or countertherapeutic impact – this must be demonstrated. This does not need to be onerous, but does need to be documented:

… it will be sufficient in most circumstances that there is some evidence that shows the decision-maker seriously turned his or her mind to the possible impact of the decision on a person’s human rights and the implications thereof for the affected person, and that the countervailing interests or obligations were identified. (Castles v Secretary of the Department of Justice (2010) 28 VR 141 [186])

The Victorian MHCC argues that a complete ban on sexual activity is justified to maintaining sexual safety. The MHCC draws on some of these exact same rights, to liberty, security, privacy and dignity, as well as the right not be treated in a cruel, inhuman or degrading way. They write that

A person’s understanding of a situation and their reasoning may seem intact, but their decision making may be at odds with their normal or baseline moral or sexual attitudes, as a result of their mental state at the time. It is possible that with the passage of time and return to everyday functioning the person may see their actions as being undesirable and feel they were not protected from engaging in actions they would later regret. (MHCC, 2018: 42)

This may be true for specific people, and when it is true, there may also be a legal requirement for services to intervene to uphold their duty of care. This will not be the case for every person, so a blanket denial of the human rights of every service user will not pass the test of ‘demonstrably justified’. In Victoria, people without any contemporaneous symptoms are may be detained in hospital to ensure medication compliance and others may stay much longer than clinically indicated due to housing or other concerns. Any unnecessary restriction on the human rights of these groups cannot be said to be demonstrably justified.

This is particularly relevant when considered in the light of the CRPD, which requires that people are supported to make their own decisions, and that their rights to make decisions are not taken away on the basis of their disability (Bennetts et al., 2018; Maylea and Hirsch, 2017). An approach which assumes a person is unable to make decisions for themselves because they have a mental illness or because they use mental health services, around sex or any other issue, is clearly incompatible with the CRPD. Both the CRPD and the Charter require people who are diagnosed with a mental illness to be equal before the law. Bell J explains that in order to comply with human rights law, the starting point must always be that a person has ‘inherent and equal capacity’:

The application of the principle that all persons are presumed to have the inherent and equal capacity to exercise their right to self-determination (unless the contrary is established) is not affected by the personal attributes of the individual (except in the special case of children). Humanity, not status, is the qualifying indicia: because recognition of legal personality is universal, the presumption applies to all persons equally regardless of gender, race, ethnicity or state of mental health, among other potential attributes. In particular, a person does not lose the benefit of the presumption of capacity upon the basis of their status as a person with a mental disability, under the Mental Health Act or otherwise. It applies equally to the person despite that status. Under human rights law, without compelling justification, it would be contrary to the principle of equality before the law for it to be otherwise. (PBU [145])

The key phrase here is that ‘… a person does not lose the benefit of the presumption of capacity upon the basis of their status as a person with a mental disability …’. This means that taking away a person’s right to consent to sex only on the basis of their admission to a mental health service is clearly unlawful. Bell J also states that the test of capacity at common law is the ability to consent ‘with the help of others’ (PBU [151]). This means that it is insufficient to simply say, ‘this person lacks capacity to consent to sex’ and must instead as ‘how can this person be supported to make their own decision’. The CRPD takes this further, requiring people be given whatever support is required for them to consent, which leads to the question of whether mental health service is ever able to deny a person the right to consent to sex. Leaving the application of the CRPD to one side, the test for limiting human rights under Victorian law is if it is ‘demonstrably justified’ or ‘legally demanded’. Given that a blanket ban is not able to be demonstrated to be justified in every case, the remainder of this paper considers if it is demanded by law. The three relevant areas of law are mental health law, criminal law, and the law of negligence.

Mental health law

The Mental Health Act is silent on the powers of services to restrict sexual activity, either for compulsory or voluntary patients. The Mental Health Act largely features in discussions of compulsory treatment; however, it also applies to services provided voluntarily (s 11(2)). This section outlines current policy and examines the way the principles of the Act should be understood in relation to this topic.

Victorian policy on sexual activity in mental health inpatient units is clear, irrespective of an apparent lack of legal power to enforce said policy. The Victorian Chief Psychiatrist’s guideline ‘Promoting sexual safety, responding to sexual activity, and managing allegations of sexual assault in adult acute inpatient units’, which predates the current Mental Health Act, states that

Any sexual activity in an adult acute inpatient unit is incompatible with the acute treatment environment and is unacceptable. (Department of Health, 2009)

This guideline is currently under review but has been confirmed by the Office of the Chief Psychiatrist as currently in effect (OCP, 7 February 2019, personal communication). It was last updated in 2012, and coming as it does from the Chief Psychiatrist, who has a statutory role to provide such guidelines (Mental Health Act s 121), this position is as close to binding as policy can be. The Chief Psychiatrist is on record stating that people in inpatient units lack capacity to make decisions about sex:

People who come into psychiatric units are very unwell. One must assume they don’t have capacity to be making decisions like that, so there’s no point thinking about consensual versus non-consensual. (Coventry, N, quoted in: Tomazin, 2017)

A blanket ban is also recommended by the MHCC (2018), and as of 2018, any sexual activity, consensual or not, harmful or not, must be reported to the Office of the Chief Psychiatrist, irrespective of whether the parties involved consent to the report (Department of Health and Human Services [DHHS], 2018). This seems at odds with the idea discussed below that capacity to consent is presumed and decision specific.

In acute inpatient units, where the average stay for people staying less than 35 days is 9.5 days (DHHS, 2017), the limitation on human rights may be seen as less significant. However, a report from the OPA (2009) found nearly 100 ‘long-stay patients’, some of whom had lived in institutional settings for decades. No current data on actual length of stay is available for people who stay longer than 35 days; however, Secure Extended Care Units (SECU) are designed for long stays, and roughly 120 SECU beds exist in Victoria (DHHS, 2017). For those staying very short periods, a prohibition on sexual activity may be ‘demonstrably justified’ by the impracticality of assessing capacity or assessing the potential for harm, but this cannot be said for those who are able to be assessed by a psychiatrist, which for compulsory patients would usually occur within 24 hours of admission (Mental Health Act s 34(1)(b)(i)). As discussed above, the starting point must be that the person has consent, so even this short-term presumption of incapacity or presumption of vulnerability is unlikely to be compatible with human rights law. In any case, the distinction between short and long stay does not feature in the law on consent – either a person has capacity to consent or they do not, irrespective of their setting.

Prohibiting any act based on presumed lack of capacity is a highly problematic position, and s 70(2) of the Mental Health Act takes quite a different tack, presuming capacity for treatment:

(2) The person seeking the informed consent of another person to a treatment or medical treatment must presume that the other person has the capacity to give informed consent.

Under the Mental Health Act, a person must understand, be able to remember and use or weigh the information relevant to the decision and communicate the decision they make (s 68(1)). Capacity is decision specific, can change over time and must not be based only on age, appearance, condition or an aspect of behaviour (s 68(2)(a-c)). A person cannot be assumed to lack capacity only because the decision they make ‘could be considered to be unwise’ (s 68(2)(d)). Considerations of capacity under the Mental Health Act only relate to treatment, but it would seem inconsistent that Parliament would require mental health services and practitioners to presume capacity to consent to treatment but not to other activities. In fact, the Mental Health Act seems to indicate that it can only be used to provide treatment, not to prevent sexual intimacy. Treatment is defined in s 6 as:

… things are done to the person in the course of the exercise of professional skills –

(i) to remedy the mental illness; or

(ii) to alleviate the symptoms and reduce the ill effects of the mental illness;

This suggests that when sexual intimacy is a part of or a function of a mental illness, it can be used to justify the prevention of such acts but is clearly not a power to impose a blanket ban. Further narrowing the scope of when a person’s rights might be abridged, s 11(a) of the Mental Health Act sets out a ‘less restrictive’ principle, which limits interventions to only those that are the ‘least restrictive’:

(a) persons receiving mental health services should be provided assessment and treatment in the least restrictive way possible with voluntary assessment and treatment preferred;

This indicates that mental health services should not be restricting people from any activity, including sexual activity, other than when necessary. Mental health services are also bound by the requirement that ‘persons receiving mental health services should have their rights, dignity and autonomy respected and promoted’ (s 11(1)(g)). Most explicitly, s 11(1)(g) requires that people have their ‘individual needs’ recognised:

(g) persons receiving mental health services should have their individual needs (whether as to culture, language, communication, age, disability, religion, gender, sexuality or other matters) recognised and responded to;

Sexual intimacy appears to fall within the definition of an ‘individual need’ as to sexuality, and so this suggests that other than when these needs will be countertherapeutic or interfere with treatment, the Mental Health Act requires services to ‘respond to’ these needs. A blanket ban raises issues for ‘responding’, which may include sexual health support. In an English study of 100 people in inpatient units with blanket bans on sexual activity, 30 had engaged in sexual activity, 10 in consensual intercourse, but only 2 had used condoms (Warner et al., 2004). If services cannot actually prevent people from engaging in sexual activity, they may be required both under the Mental Health Act and under their duty of care to provide support to minimise harm.

Taken together, this means the Mental Health Act does not give the power to mental health services to restrict sexual intimacy other than for strictly therapeutic treatment reasons on an assessed case-by-case basis and may in fact require the facilitation to ensure access to it, insomuch as it is an ‘individual need’ that should be ‘recognised and responded to’. Clearly, no such obligation exists if the sexual act is criminal, so it is necessary to consider the implications of capacity to consent under criminal law.

Criminal law

Under s 36 of the Crimes Act, ‘consent means free agreement’, and ss 36(1)(f-g) states that a person does not consent if they are ‘incapable of understanding the sexual nature of the act’ or are ‘mistaken about the sexual nature of the act’. A person must also understand and that they have the right to refuse consent, among other things (R v Morgan [1970] VR 337; Neal v R (2011) 32 VR 454). This is clearly a much lower bar, or at least a less comprehensive bar, than the test for capacity under the Mental Health Act. Importantly, the criminal law is clear that the test is not if the person understands the moral implications of the sexual act (R v Mobilio [1991] 1 VR 339; R v Eastwood [1998] VSCA 42). It may be entirely possible to engage lawfully in a sexual act, fully understanding the sexual nature of the act, and yet regret it later. A change in attitude to the sexual act, even if the change is related to mental illness, does not by itself vitiate consent. It may also be possible to be experiencing delusions, elevated mood or any number of other experiences, and still understand that the act is sexual in nature. This can be seen in English common law where a woman was found to lack capacity regarding who she should have contact with, her marriage, her financial affairs, litigation but not with regard to her sexual relations (Re MM an adult [2007] EWHC 2003 [87]).

Further complicating the issue is that in some cases, the question is not only if the person was consenting to sex, but that the other person was aware that the person might or might not be able to consent (R v Getachew (2012) 248 CLR 22). There is no onus under Victorian law to obtain active consent, rather it is required that the prosecution demonstrates that consent was refused, and that the person did not ‘reasonably believe’ that the other person consented (Crimes Act s38(1)(c); ISJ v R (2012) 38 VR 23). In an inpatient setting where the sexual act was entered into freely, unpacking who consented to what and who was aware that the other person was able to consent may be a near impossible task, particularly given issues of memory and perception which can be experienced while in mental distress or as a result of psychotropic medications.

The criminal law is complex, and the case law consistently reiterates that each case must be assessed on its merits. What is clear is that certainly not all sexual activity in an inpatient unit will be criminal, and that a great deal of it will not be. The criminal law does not permit intervention to prevent an act which is not criminal, although it is clear that services have a duty of care to prevent criminal or harmful acts.

Duty of care

It is clear that a failure to act to prevent sexual assault in a hospital can be a breach of the hospital’s duty of care, as was the case of A B v Australian Capital Territory [2018] ACTSC 18 in which one patient was sexually assaulted by another in an emergency department and the court awarded damages. In that case, the Court said,

In my view, the duty owed by the hospital to the plaintiff was to ensure that she would be treated in a safe environment, free from foreseeable dangers. [The perpetrator] was a very foreseeable danger because of his history, his conduct on presentation at the hospital and his conduct after his admission and in particular in the ward. [The perpetrator] should not have been in that ward and he should not have been so unsupervised that he was capable of freely molesting other patients. (A B v Australian Capital Territory [2018] ACTSC 18 [24])

This finding does not automatically translate to apparently consensual sexual activities, although it does highlight the importance of ensuring a safe environment. If mental health service is aware or should have been aware that the sexual activity was criminal – that the person lacked the capacity to consent – then they will likely be in breach of their duty of care and may be liable.

This requirement to create a safe environment must be balanced with the requirement that services only limit human rights in the least restrictive way possible. As detailed above, mental health services are required to provide treatment in the least restrictive way possible, even to voluntary patients (Mental Health Act ss 11(1)(a),(2)). The High Court has been clear that if an adverse event occurs as a result of compliance with this less restrictive principle, this will not automatically constitute a breach of duty of care. In McKenna v Hunter and New England Local Health District [2014] HCA 44, a person was discharged from an inpatient unit and subsequently took the life of another person. The High Court found that the hospital had not breached its duty of care as it was required by statute to provide the least restrictive care possible. The High Court wrote that

In some cases, perhaps many, the reasonable person in the position of the hospital or doctor would respond to those risks by continuing to detain the patient for so long as he or she remains a mentally ill person, thus avoiding the possibility that the risk of harm to others will eventuate. But that is not what the Mental Health Act required. It required the minimum interference with the liberty of a mentally ill person. It required that the person be released from detention unless the medical superintendent of the hospital formed the opinion that no other care of a less restrictive kind was appropriate and reasonably available to that person. (McKenna v Hunter and New England Local Health District [2014] HCA 44 [31])

This case considered the least restrictive criterion in the treatment criteria, but mental health services are required to provide treatment in the least restrictive way at all times (Mental Health Act s 11(1)(a), s11(2)). This same logic can be brought to bear on the duty to prevent consensual sex. If a less restrictive option, such assessment of capacity and assessment of potential harm, is available, this is not only permitted but required by law.

In England, in R (RH) v Ashworth Hospital Authority [2001] EWHC 872, the Queens Bench found made no finding with regard to the blanket no-sex policy and upheld the right of the mental health service to deny access to condoms. RH is described by Bartlett et al. (2010: 169–170) as a ‘peculiar case’ with ‘not unproblematic’ reasoning, in which the blanket no-sex policy was justified on the nature of the forensic setting. Outside of this setting, this reasoning would not apply, and the hospital was under no obligation to prevent sexual activity – although it would be obliged to minimise any potential harms. RH does raise the potential that a failure to provide sexual health supports such as condoms could in other circumstances constitute a breach of the hospital’s duty of care.

When considering duty of care, there is a risk that a blanket ban actually drives risky and potentially harmful behaviour out of the jurisdiction of the therapeutic relationship (Bartlett et al., 2010; Deegan, 1999). This means that people who defy the blanket ban, as many inevitably will, will not seek support or guidance from those who are employed to provide it. This is more likely to be a clinical issue than a legal one, but clinicians and clinical services should not allow fear of the law – particularly an unfounded fear – to unduly influence clinical practice.

Discussion

These four areas of law provide a guide for how mental health services are able to respond to sexual activity in the inpatient setting. The duty of the hospital to provide a safe environment means that they must act to prevent criminal acts, such as in the case where a person does not meet the test for capacity to consent to sex under criminal law. Where these acts at not criminal, human rights law requires that preventing them is ‘demonstrably justified’, which must be on a case by case basis, while the Mental Health Act requires services to provide the least restrictive treatment.

This has led other commentators on this issue to the same conclusion; that mental health services must work with each individual person to ensure that they are safe and that their needs are met. Two analyses of this issue, one focusing the Canadian experience and another on English forensic settings, came to the same conclusion (Bartlett et al., 2010; McSherry and Somerville, 1998). Although both predate the CRPD, both presciently foreshadow its non-discriminatory intentions. McSherry and Somerville (1998) write that

… it is clear that reasonable steps should be taken to allow expression of sexuality by institutionalized persons … Such an approach also indicates that it is necessary to justify any intentional inhibition of such individuals’ expression of sexuality, unless this is required to provide clearly needed protection for the person or to avoid a reasonable risk of harm to others. (p. 6)

The process of supporting people to make their own decisions wherever possible is a clear step in the right direction. A number of models have been proposed and implemented to this end (Bartlett et al., 2010; Mossman et al., 1997; Welch and Clements, 1996; Welch et al., 1999). Arstein-Kerslake (2016) proposes an ‘agreement model’ which may be adapted to the inpatient environment. This means that even when people are experiencing mental distress, they can still be supported to make decisions themselves. While supported decision-making does not offer a complete panacea for the issues raised in this paper, it provides a working model for the central issue of how people’s right to make their own decisions can be maintained in times of crisis, even when those decisions are difficult for clinicians and policy makers to engage with (Kokanović et al., 2018).

These proposals run up hard against the reality of the acute inpatient environment, in which is it often difficult to provide basic care, let alone respond to a person’s more intimate needs. The Medical Director of an English forensic facility gave this evidence when asked to justify their prohibition on sexual activity:

In practice a situation where some patients are, and some patients are not, allowed to have sex is fraught with danger to the patients as the hospital has found. It is also very difficult for staff and impossible to manage. I am certain that any policy allowing some patients to engage in sexual activity but not others would constantly subject to challenge and abuse and would be impossible to manage satisfactorily … Deciding whether a relationship involves the consent of both the individuals involved will in many circumstances be impossible in practice. (RH [18])

Irrespective of whether this will be ‘impossible’ in ‘many circumstances’ or just ‘some circumstances’, a least restrictive approach suggests people should be supported to make decisions wherever possible. When this is not possible, the criminal law provides the threshold test, which requires an assessment of capacity. There is no consensus on what should constitute a test of capacity to consent to sex for people in mental health inpatient units; however, such tests do exist (Mandarelli et al., 2012; Noffsinger, 1999), and clinicians are able use clinical judgement to assess for other risks of harm stemming from such relationships. These may be legal or clinical in nature and provide a practical way for ensuring legally and/or clinically that a person has the capacity to consent to sex.

Inevitably, a blanket ban will not entirely prevent sexual activity, which means that services have both a legal and an ethical responsibility to provide sexual health support. Deegan (1999) argues that a harm minimisation strategy in conjunction with a blanket ban simply confuses people, undermining the no-sex rule while still preventing an honest discussion about sexual activities. This prevents good therapeutic care, as Östman and Björkman (2013) found that both ‘[p]atients and partners deplore the lack of opportunity to discuss questions related to their sexuality and long-term relationships with psychiatric clinicians’ (p. 4).

A blanket ban also denies the natural human instinct to seek intimacy as a form of healing. Deegan writes that ‘in an institution loneliness and pain can be amplified. In such circumstances it is quite natural for anyone to seek solace in the warmth of an embrace’ (Deegan, 1999: 26). Deegan (1999) argues that it is not the sexual activity which is the problem, but the inability of the institution to accommodate it. Furthermore, it is the institutional setting which denies basic elements of humanity, stripping away control over what is private and what is public. Deegan suggests that we should spend less time controlling sexual expression in these institutions and more time dismantling them.

Conclusion

The law in Victoria is consistently clear that a person should have their capacity to make decisions presumed. As Bell J writes,

The equal birthright of all persons under the common law is the recognition of their legal personality, which embodies the right to have and exercise legal capacity. … All (adult) persons are therefore presumed to have the inherent capacity to exercise the right to self-determination (unless the contrary is established). (PBU [143])

The law is unusually clear on this matter, with four different areas of law all leaving room for, or requiring, a case by case assessment of a person’s capacity to consent to sexual activity. This does not mean that when people are assessed as lacking capacity, they should have their decision-making ability taken away. Rather, they must be supported to make their own decisions wherever possible. Clinicians and policy makers who hope to act ethically and lawfully while fulfilling their duty of care to people they work with must consider the complexity of the practice context and engage with these difficult issues, rather than support blanket prohibitions which deny people their fundamental human rights.

Footnotes

Declaration of Conflicting Interests

The author(s) declared no potential conflicts of interest with respect to the research, authorship and/or publication of this article.

Funding

The author(s) received no financial support for the research, authorship and/or publication of this article.

ORCID iD

Christopher Maylea

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The capacity to consent to sex in mental health inpatient units

Abstract

Objective:

Methods:

Results:

Conclusion:

Keywords

Introduction

Human rights law

Mental health law

Criminal law

Duty of care

Discussion

Conclusion

Footnotes

Declaration of Conflicting Interests

Funding

ORCID iD

References