Consenting to sex and intimacy after a dementia diagnosis

Why is consent important?

Consent is important whether you are being intimate with a new partner or have been married for a long time. It is the law that partners must consent to any sexual activity. Remember that physical arousal alone is not consent.

Sometimes a person with dementia may be unaware of your needs, and it is you who does not consent. Nobody should be forced into any sexual or intimate activity that they are not comfortable with. Help is available. See ‘Challenging sexual behaviour' for more information.

What does the law say about mental capacity and sex?

In England and Wales, the Mental Capacity Act 2005 says that a person is able to make a decision for themselves if they are able to do all of the following:

• understand information that is relevant to the decision
• retain that information long enough to be able to make the decision
• weigh up that information to make the decision
• communicate their decision by any possible means, such as talking, using sign language or using simple movements such as blinking an eye or squeezing a hand.

If they can do these, then they care able to consent. If they are not able to do one or more of these due to an ‘impairment or disturbance in the functioning of the mind or brain’ – for example, dementia – then they would lack capacity to make that decision at that time. They are not able to consent.

The law in England and Wales about capacity to engage in sex is complex, and developing all the time. It is still being debated which information is relevant to this decision and, as a result, what needs to be understood by the person. This may also be looked at slightly differently depending on whether it is a criminal or civil court that is making the decision.

Can a person with dementia consent to sexual activity?

A person can have the capacity to make some decisions and not others. Some decisions require them to understand more complex information, or weigh up more options than others. For example, a person may have the capacity to consent to what they want to wear or eat, but not have the capacity to engage in sex.

A diagnosis of dementia does not mean that someone automatically lacks mental capacity. Mental capacity can also change over time. For example, a person with dementia might be able to think more clearly on some days, or at certain times of the day, than others. This means that a person may have capacity to engage in sex at some times and lack it at others.

For more information, see our Mental Capacity Act 2005 factsheet.

How can a person with dementia give their consent?

There may be times when a person with dementia seems to accept sexual advances without being very responsive. You may feel confused about whether the person is consenting to sex or not. Afterwards, you may feel guilty about whether they really wanted to have sex if they did not give you clear consent.

This situation raises some complicated ethical and legal issues. If you have been with your partner for some time, you may know what the person’s usual behaviour would be, and be able to recognise if they act differently or seem uncomfortable.

A person with dementia who cannot express their wishes verbally, may consent to sexual activity through non-verbal signs. Physical arousal alone is not consent. As their partner, you should feel confident that you can recognise non-verbal consent before you start any sexual activity.

You should never initiate sexual activity without clear consent. You must stop at any sign of reluctance. Both partners must consent to sexual activity.