Firstly this is a story about 'Edward and Bella' (not their real names) and this is from the their perspective. The names of two charities in this story are not mentioned and may well have a different perspective of what happened. This story isn’t actually about 'sex' but it's about two adults, from clear evidence have the capacity to decide if they want to sleep in the same bed. Whether they make love once in the bed is none of mine or your business.
Edward and Bella met about 8 years when Edwards social worker found him his own flat. They started a relationship about 4 years ago. They now refer to each other as boyfriend and girlfriend. Some important facts to know about this couple before you know what allegedly happened:
Edward
Edward was previously married but his wife sadly passed away 10 years ago.
He lives independently but receives 3 hours of outreach support twice a week, mainly to help him pay bills etc.
He is a busy man - he goes college three times a week and works in a well known chain of shops on the other days.
Edward can't read but he learnt quickly.
He travels independently.
Bella
Bella has lives independently since her mother passed away 3 years ago.
She has a social worker but receives no outreach support.
Her sister visits once a week and supports her with bills etc.
Bella goes to the same college as Edward.
They started going out with each other as they got to know each other and say that they have been boyfriend and girlfriend for 4 years. They often sleep together in one of their flats.
2018
A franchise of a national organisation were organising a weeks holiday for the members of a club they visit one evening every week. Two important facts to consider are that they are staying in a private hotel, which the organisation has no relationship with and that the people going on the holiday paid for the weeks stay.
Edward and Bella assumed that they would be sharing a bedroom. They asked an organisation volunteer which room they would be in when they got there. The volunteer told them that they won’t be sharing a room together. In fact Bella had to share with another woman. They were told it against the rules.
2020 pre-covid
This time the local organisation who provides outreach support to Edward arranged a holiday to a lovely place in Dorest. I spent a week in the actual same place as them back in October 2019. Bella was allowed to join Edward as long as she paid for herself. But the same problem happened again - they were not allowed to share a bedroom. Apparently it's against the rules!
I have asked Edward if I can take this matter up (firstly) informally with both organisations. But I know that they may have a different version of what happened, but just in case its true they need to consider the following:
Both holiday places were independent and private and had no relationship with both organisations.
Edward and Bella paid for both the holidays
Capacity is always assumed and the organisations will need to provide written evidence why they would question their capacity.
Although capacity is decision specific - any assessor would take into consideration that they both live independently.
The decision that should be assessed was the question that Edward and Bella asked 'can we share a bedroom'.
They did not mention sex at all. If they did and the organisations provide evidence that they are questioning their capacity - then only a qualified MDT member like a psychologist etc. can assess their capacity to have sex and this would come under the Sexual Offences Act. From my experience the Courts always tend to require a consultant psychiatrist or psychologist to furnish a report – however on occasions the court have been asked to vary this when we have said there is someone better placed to complete the report and they need to provide evidence that they are competent I.e. through their CV.
In fact the threshold for someone to have capacity to have sex is quite low:
They need to know the basics of what the physical act is and how it is performed
Need to know that (if between a man and a woman) that the woman may get pregnant. Although Bella is in her mid 50's.
They need to know the basic of contraceptives - using simple terms
Need to know about the possibility of catching a STD - using simple terms
Both need to understand it 'sex' is a personal choice
I'm sorry if I have left something important out of this but I am going by memory. Hopefully Edward will decide that I can go ahead with contacting the organisations.
Any thoughts?
Update - 23rd November 2020
Well I had a telephone conversation with Edward and Bella. They both agreed that they didn't want to make a complaint or cause any bad feelings between them and the organisations. But they agreed that when they go to pay for the next planned holiday this Spring that I can accompany them. Some things I know very little about which I should know - like what's the law about giving out medication. I haven't gave out medication in 21 years! But something I do know is the MCA, I've been teaching consent before it was even published. But also its about their values, their lives, their wishes and nothing what anybody believes should be kept to themselves. I can already see the organisations back tracking, offering excuses etc. But next Spring they will be sharing a bedroom whilst on holiday or they will be seeing a very polite but a serious and educated Steve when it comes to the MCA and they will lose - I guarantee!