By law, both parties must always consent to sexual relations. A person consents if he or she agrees by choice and has the freedom and capacity to make that choice. When someone has dementia, it is sometimes unclear whether they have the 'mental capacity' to consent to sexual relations.
In England and Wales, the Mental Capacity Act 2005 says that people are able to make decisions for themselves if they are able to do all of the following:
- understand information that is given to them
- retain that information long enough to be able to make a decision
- weigh up the information available to make a decision
- communicate their decision by any possible means, such as talking, using sign language or even using simple movements such as blinking an eye or squeezing a hand.
Northern Ireland currently has different laws around capacity, although these are changing.
In addition there is specific case law that has been developed around consent to sexual relations in both the criminal and the civil courts in England, Wales and Northern Ireland which may also need to be considered in particular situations. It is a complex area and sometimes it might be necessary to get legal advice.
In some instances, someone with dementia may seem to passively accept sexual advances without being very responsive. Some partners find this confusing, and may be left feeling guilty if it is not clear whether the person really wanted to have sex. Other people, however, find it normal to continue having sex as before. This situation can raise some complicated ethical as well as legal issues, such as whether or not the person with dementia has the mental capacity to consent to sexual relations.
If the person cannot express their wishes, it is important to learn to recognise non-verbal signs and to stop at any sign of reluctance. At other times, the person with dementia may be insensitive to the needs of the person they want to have sex with (see 'Challenging sexual behaviour' above), and it is the partner who needs to show that they do not consent.
Simply having a diagnosis
of dementia does not mean that someone lacks the mental capacity to make their own decisions and to understand the implications of those decisions. Furthermore, capacity is always specific to a particular decision at a particular time. Someone may lack the capacity to make a decision about receiving a new medication, but this does not automatically mean they lack capacity to make a decision about wanting to have a bath. The ability of a person to understand the implications of a decision may also vary on different occasions. It is important to consider whether the person with dementia has the ability to recognise who the other person is, and most importantly, whether they have the ability to say no or to express their wishes in other ways.