Abstract
Maylea’s paper ‘The capacity to consent to sex in mental health inpatient units’ (Maylea, 2019) is a comprehensive paper covering this vexed issue through a nuanced, multilayered and ethically broad lens. However, the use of electroconvulsive therapy (ECT) as an analogy for consenting to sexual activity presents several concerns and serves as an unnecessary distraction while being invalid across a broad range of issues. The sexual act is a deeply personal, intimate endeavour and sometimes impulsive, in sharp contrast to ECT, which is a scientific, evidence-based and stringently regulated therapeutic intervention (UK ECT Review Group, 2003).
The author’s contention that harm from ECT is difficult to predict and rectify is incorrect and not based on evidence. Adverse effects of ECT have a degree of predictability and are mostly rectifiable based on modifying the parameters of ECT. ECT is a highly controlled and predictable treatment with an excellent safety record and robust scientific evidence for its benefits that outweigh possible harm. Sex, on the other hand, is an experiential aspect of human life, embedded with romance, fantasies and frustrations, some of which are not subject to scientific investigations.
The application of the law to both ECT and sexual activity is fundamentally different. During a consenting session for ECT, the practitioner explains the anticipated benefits and harm to the patient (informed consent). When it comes to the consent for sex, the law only stipulates the comprehension of the nature of sexual activity and situations where such a consent becomes null and invalid (Victoria Law Reform Commission). The Crime Act 1958 (Vic) defines consent as free agreement, and Victorian Full Court decision R v Morgan 54 (Morgan) is the leading authority in relation to the capacity to understand or comprehend sexual acts (Victorian Reports, 1970).
The analogy between consent to sex and ECT rests only on a concrete sense of ‘harm’ but largely ignores the qualitative differences. Sexual consent capacity is distinct from treatment consent capacity (Syme and Steele, 2016) in the following ways: (1) decisions in regard to sexual relationships are not always logical, (2) the decision is made not necessarily involving weightage of options or consultation with others, (3) substitute decision makers or guardian are not appointed, (4) it is not as well developed as other capacity domains.
In an era when the psychiatric community and consumer groups have been strongly working to break the negative stereotypes and stigma, this ostensibly innocuous analogy comes across as insensitive and risks reinforcing the undeserved negative stereotypes (Elias et al., 2019). Royal Australian and New Zealand College should advocate for increased vigilance against such seemingly inadvertent messages and inappropriate comparisons.
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.
