In general people with learning disabilities are treated the same as other people in law. People with learning disabilities who are competent have the right to make their own decisions in just the same way as anyone else. However people with severe learning disabilities, referred to as ‘defectives’ in law, are deemed not to be able to give their consent to enter into sexual relationships and so are protected by the law (Brown and Benson 1995). DEFECTIVE DEFINITION. So what impact does this have on staff who work with learning disabled people and what situations may we encounter.
For example (s. 7 soa 1956), if we believe that a woman with learning disabilities is unable to consent, then it is suggested by Gunn (1996) that this relationship is not supported, as the man having sex with her is committing the offence of rape because the woman cannot provide consent. However if the man is also learning disabled it can be argued that he would not know the woman has severe learning disabilities thereby enabling them to have sexual intercourse. In this situation staff would have to decide whether they are willing partners or if one is being used or hurt.
(Poss marriage)( the same for homosexual act with a defective man) Another law that affects staff working with clients with learning disabilities is Section 128 of the Mental Health Act 1959. Under this it is an offence for a male member of staff to have unlawful sexual intercourse with a woman who is receiving treatment for mental disorder or who is subject to guardianship or otherwise in his custody and care. The phrase ‘mental disorder’ means that all clients with learning disabilities are protected by the above offences (Gunn 1996).
It is also an offence for a male member of staff to commit an act of buggery or gross indecency to a male patient under section one of the Sexual Offences Act 1967. There is no equivalent law concerning female members of staff, but sexual relations between female staff members and patients could be construed as ill treatment (under section 127 of the mental health act 1983) or indecent assault (sections 14 & 15 of the Sexual offences act). If consent is present then it is a question of professional ethics (Robbins 1990). This last point brings us on to the issue of indecent assault.
There are three requirements for this offence to be committed. Firstly the victim must have something done to them or that they apprehend that something will be done to them in the near future, by a man or woman. Secondly the situation in which the assault takes place must be indecent and the accused must have an indecent motive, and thirdly it must be non-consensual. Clearly this offence is of concern to people with learning disabilities and to staff working with them (Gunn 1996), especially on the topic of teaching masturbation.
This is one of the most difficult issues, legally and ethically (Gunn 1996). Without consent, touching a man’s penis or a woman’s vagina would be an assault. In the case of an individual deemed a ‘defective’ consent cannot be given regardless of their willingness or desire to be taught. Even with consent would it be ethically correct to teach masturbation with actual physical contact? Staff would need to consider the need, appropriateness, teaching methods available, and whether or not their actions could be viewed as abusive.
Issues that may provoke legal action in relation to indecent assault, include the teaching of masturbation outside the context of a personal and social relationships programme or for the prurient interests of members of staff, helping clients with personal hygiene for prurient reasons, or where a female member of staff is having a sexual relationship with a ‘defective’ man. This is an offence because she would have to indecently touch him in the course of having sex, and being a ‘defective’ he by law is not able to consent.
Care staff could be further restricted from permitting the continuation of a valuable sexual relationship by Section 27 of the Sexual Offences Act 1956. This has a wide range of possible offenders, and may result in owners, occupiers or care staff who are left in ‘control’ of residential premises, who endorse or rather who do not prohibit sexual relations of those deemed ‘defective’, being liable to prosecution (Evans and Rodgers 2000). As mentioned previously ethical problems also exist when dealing with sexuality in learning disabilities. For instance ‘What is consent?
‘ Should we assume that an understanding of the sexual act can demonstrate consent, or should we adopt the belief that only women with learning disabilities who show an understanding of the significance of sexual intercourse and its implications will be able to consent? The advantage of the former approach is that more women with learning disabilities will be able to enjoy sexual relationships, the advantage of the latter approach is that it will protect more women with learning disabilities, including those not deemed defective, from abuse and exploitation (Gunn 1996).
Is it ethically correct to make judgements on whether a person is deemed competent to consent by what is written in their case notes under the heading IQ, and thus preventing them from having sexual relationships, or should we carry out thorough assessments in all areas before making any decision? There are many ethical problems for staff dealing with the sexuality of their clients. Robbins (1990) comments that staff attitudes are generally subjective and value laden, to make a difference to the lives of some of our clients we must put their needs before our own personal and moral judgements.
Issues may arise when religious views held by staff members’ conflict with programs aimed at improving the sexual experiences of people with learning disabilities. For example those who adhere strongly to the catholic religion may feel that sex should only occur inside marriage, and that any form of sexual activity that could not result in pregnancy such as masturbation and contraceptive sex should be avoided and is unacceptable (Fairbairn 2002). Other staff members may find Homosexuality unacceptable and may refuse to work on a program designed to help an individual explore their sexuality because they believe it to be morally wrong.
Embarrassment, lack of training, no guidance may all result in staff denying the sexuality of their L. D. clients. If issues are never raised then they are never dealt with and problems continue and uncertainty prevails. Implications for practice include the need for better self-awareness as you will be dealing with issues embarrassing to yourself and the client. Always consult colleagues if you are not sure about certain relationships, as there are possible repercussions to yourself and clients in aiding an unlawful sexual relationship or abusive one.
Conclusion As we have heard the law is predominately addressing issues surrounding people with severe learning disabilities, with the aim of protecting this group of vulnerable individuals. Should we assume then that people with mild or moderate learning disabilities or for that matter the general public cannot be abused or exploited? The law as it stands gives no freedom, in so far as sex and intimacy, to these vulnerable people (Evans and Rodgers 2000).
Sexuality is an activity of living and therefore its healthy expression is as much nursing as the administration of a rectal enema, bereavement counselling, and any other intensely private, intimate function that is carried out by nurses everyday (Scott 2001). To deny a person’s sexuality is to deny part of his or her personhood, and to deny that a person with learning disabilities is a sexual being is treating them less than a whole person (Fairbairn 2002). Health Care Ethics and Law Implications for Staff: Sexuality of People with Learning Disabilities