Dementia, Sexuality, and the Law: the Case for Advance Decisions on Intimacy

Some individuals develop dementia and the invariable consequence of dementia is a decline in cognition and level of functioning. Despite the effects of this illness, people with dementia still seek intimacy and companionship as part of their expression of basic human instincts and have the right to equal enjoyment of relationships and privacy for such. At the same time, they have the right to be safeguarded against abuse. The law in England and Wales, in common with the majority, if not all, jurisdictions around the world is clear on the requirement for contemporaneous consent to sexual activity, thereby creating unmet needs for people with dementia who no longer have the capacity to consent to intimacy/sexuality. This creates an impetus to find ways to empower individuals with dementia to enjoy intimacy in a safe and lawful way and enable them to live well despite dementia. This article proposes an instrument known as the Advance Decision on Intimacy, in pursuit of the concept of precedent autonomy, to empower individuals to make decisions about how they would wish to express their sexuality at a material time in future when they would have lost the capacity to consent to such acts. While the article is framed by reference to English law, the principles are of wider relevance.