title: An Ethos of Empowerment? Decision-making under the Mental Capacity Act 2005 and the Sexual Lives of Adults with Learning Disabilities
Creators: name: Pugh, Amber
Publisher: name: University of Liverpool Repository
Year: 2028

description: People with learning disabilities have long been subject to regimes that have interfered with their autonomy and curtailed their sexual freedom. Paradoxical tropes see them characterised as asexual and innocent, but also hyper-sexual and sexually deviant, all of which are rhetorical devices used to justify restrictive forms of government. The Mental Capacity Act 2005 (MCA) sought to effect a change in treatment, care, and decision-making for people with mental impairments, and it is often described as an ‘empowering’ piece of legislation. The Act covers decisions surrounding sexuality, and it was hoped that the framework would result in increased recognition of capacity to engage in sexual relations. This aim of this thesis, then, is to examine whether the MCA currently empowers adults with learning disabilities to make decisions about sexual relationships and contraceptive care. First, it seeks to interrogate the theoretical underpinnings of the MCA by exploring how empowerment should best be understood when applying the Act. This is something which, until now, has never been addressed in the literature. It is argued that empowerment needs to be grounded in a dialogical relationship of mutual trust and respect and, rather than being a homogenous construct, empowerment must be defined by P’s (as the protected party in capacity proceedings is called) perspective of what it means to be empowered. It then highlights that the robust implementation of the support principle, P’s wishes being prioritised in the best interest assessment, and P’s meaningful participation in court proceedings are all indicators of empowerment under the MCA. Next, it examines the perceived tension between the MCA’s aims of empowerment and protection. It utilises Michel Foucault’s governmentality thesis to highlight that the MCA has always been concerned with managing risk, and expose the complex fields of power that decision-makers operate in. It is contended that the governmentality thesis provides a compelling explanation for why negative considerations of risk often supersede empowerment in capacity and best interest assessments. This thesis then turns to consider whether the test for capacity to engage in sexual relations, specifically, strikes the correct balance between empowerment and protection and concludes that it does not. It is argued that the current threshold of information as propounded by the Supreme Court in A Local Authority v JB [2021] UKSC 52 is set at a level that many people with learning disabilities will be unable to meet. It then identifies that the MCA’s ability to empower decision-making in this area is limited by the fact that best interest assessments cannot be made about decisions to consent to sex. This is, in part, because sexual activity with people who lack capacity because of a ‘mental disorder impeding choice’ is criminalised under the Sexual Offences Act 2003. It is argued that ostensibly consenting, non-exploitative relationships should nevertheless be supported, and that the drafters of the Sexual Offences Act 2003 did not intend for such relationships to be prohibited in practice. Finally, this thesis explores whether the MCA empowers people with learning disabilities to be in control of their contraceptive care and, again, concludes that it often does not. It identifies continuities of disempowerment from the pre-MCA case law to the post-MCA case law, including prejudicial assumptions about the decision-making capacity of people with learning disabilities, a lack of support to make decisions about contraception, and the subjugation of P’s knowledge to the knowledge of the judiciary and medical professionals.