From food to sex: what is consent?

Baked cod or vegetable curry? This may not seem like a question with legal implications, yet in UK hospitals or care homes, the person offering the choice should proceed with caution. Under the terms of the Mental Capacity Act, nurses must check that a patient has decision-making capacity, and, if there is any doubt, on-the-spot assessment is required. By law, competence for consent is assessed for a multitude of ordinary activities.

This well-intentioned statute has imposed an unnecessary burden on already-overworked nurses, while bringing little benefit to patients and their families. In an EU-inspired legalistic framework, common law – and common sense – has been replaced by the bureaucratisation of daily living. The obligatory assessments must be fully documented, exacerbating the problem of nurses spending hours in the office. The Care Quality Commission, the UK’s national health inspectorate, frequently notes any perceived shortcomings in compliance with the Mental Capacity Act. Patients value the pragmatic approach of nurses, and hopefully good care practice continues despite (not because of) this cumbersome statute.

Capacity assessments are encroaching on other kinds of human relationships, too. In the blaze of controversy over footballer Ched Evans and his future career after a rape conviction, few commentators have focused on the broader issue of consent between people under the influence of alcohol. Evans’ case is currently in the hands of the Criminal Cases Review Commission, but a key point is that the victim consented to sex, but was later judged to have lacked decision-making capacity.

Consider a fairly normal situation beginning at a town-centre bar near you. A young man and woman, both students celebrating the end of term, lubricated by copious amounts of alcohol, end the night sleeping together. The man leaves in the morning, and the woman regrets this ‘one-night stand’. She feels that if she had not drunk so much she would not have agreed to sex. In this situation she could make an allegation of rape, which would be taken seriously by police. The man’s life would suddenly be turned upside down. Ultimately, he would need to convince a jury that he had sought and gained consent for the sexual encounter, and that he had not taken advantage of a woman while drunk.

So it should be, argue anti-rape campaigners. But absolutist notions of rape do not readily fit the type of situation I have described. While forceful sexual acts cross the line into criminality, extending the definition of rape to include an ambiguous measure of drunkeness is likely to lead to serious miscarriages of justice. As it often takes a jury several hours or days to judge on consent in a rape case, with the full judicial process to help them, is it realistic to expect someone who has spent hours drinking to make a sophisticated judgment on his intimate partner’s decision-making capacity? Writing this in the sober light of day, I have no idea where such a line could reasonably be drawn. Couples on their wedding night take note: consummation of marriage following an unquantified flow of champagne may entail what campaigners and politicians assert is always (no ifs, no buts) a very serious crime.

It may seem insensitive to link the issue of rape to everyday decisions by patients in hospital or care homes, but there is a common issue here. Offering a person with dementia the option of baked cod for lunch, or a sexual liaison following an office Christmas party, are examples of common human behaviour and relationships that cannot be completely governed by law. A man who ignores a woman’s refusal of sex is obviously committing a crime, as is a nurse who deprives a patient of liberty without due cause. But in human dynamics, there is much more grey than black or white. Nurses are not trained to be quasi-legal ethicists, and while young men should learn acceptable sexual mores, they will not always make a cogent appraisal of the validity of consent of an apparently willing partner.

I am not in any way excusing predatory males who exploit vulnerable women and override any notion of consent, nor am I minimising the lasting psychological impact of sexual violence. But in relationships between autonomous adults, perhaps the Mental Capacity Act at least provides a useful principle: the assumption that people have decision-making capacity. In most circumstances, ‘no’ should mean ‘no’ and ‘yes’ mean ‘yes’. Those who contribute to extra-judicial punishment via Twitter may like to reflect: have you ever had sex while you and your partner were drunk?

Niall McCrae is a writer and lecturer based in London.