Capacity to Consent to Sexual Activity Assessment Considerations

Updated 3/26/21

Before beginning the assessment process, refer to the document "Considerations for Provider Organizations in Designing an Assessment Process for People Receiving Services" developed by the Sexual Education Process/Implementation Committee for guidance on approaching the assessment process and next steps. Below are some key areas of consideration for this sensitive issue; it is essential to individualize assessment in this area based on the unique needs, interests, and abilities of each person. Probe items are included as examples which may help to evaluate the person's understanding of the area; they are not intended to be exhaustive or required.

Does the person demonstrate the ability to understand and discern that different types of relationships generally have accompanying permissible behavior?

Probe Items:

Different types of friendships involve different levels of physical contact.
In a committed partnership, emotional relationship is generally established before a physical relationship is started.
Is the person vulnerable toward exploitation/abuse by others? ?
- Person does demonstrate skill and understanding in this area. ?
- Person does not demonstrate skill and understanding in this area. ?
- Unable to determine whether the person demonstrates skill and understanding in this area due to: ?
  - Education is not recommended due to: ?
  - Education is recommended as follows:

Does the person demonstrate self-protection knowledge and skills?

Probe Items:

Will the person react immediately to someone who touches/threatens him/her?
Understands the concept of private body parts.
One person cannot touch another person who does not want to be touched. ?
- Person does demonstrate skill and understanding in this area. ?
- Person does not demonstrate skill and understanding in this area. ?
- Unable to determine whether the person demonstrates skill and understanding in this area due to: ?
  - Education is not recommended due to: ?
  - Education is recommended as follows:

Does the person demonstrate the skill and understanding to protect her/himself against sexually transmitted diseases?

Probe Items:

Sexual contact can lead to physical illness.
Symptoms of sexually transmitted diseases.
Abstinence and the use of condoms can protect against sexually transmitted diseases. ?
- Person does demonstrate skill and understanding in this area. ?
- Person does not demonstrate skill and understanding in this area. ?
- Unable to determine whether the person demonstrates skill and understanding in this area due to: ?
  - Education is not recommended due to: ?
  - Education is recommended as follows:

Does the person demonstrate the skill and understanding to protect her/himself against unwanted pregnancy? (Note - this item may not be a consideration for people based on sexual orientation, age, etc.)

Probe Items:

Sexual intercourse can lead to pregnancy.
Protective measures to avoid unwanted pregnancy.
Responsibilities associated with parenthood. ?
- Person does demonstrate skill and understanding in this area. ?
- Person does not demonstrate skill and understanding in this area. ?
- Unable to determine whether the person demonstrates skill and understanding in this area due to: ?
  - Education is not recommended due to: ?
  - Education is recommended as follows:

Are there any other issues, concerns or topics related to this subject that the person and/or their guardian wants considered or addressed?

Next Steps

Following completion of the above items, the person completing the assessment, the person, guardian (if applicable) and any others requested by the person should meet to determine whether the person demonstrates the capacity to make informed consent to sexual activity (Note - this is not a determination regarding other aspects of adult relationships).
The person should demonstrate skill and understanding in each area to be determined capable of informed consent and must not have a history of and/or currently engage in illegal sexual behaviors. If there is any history and/or indication of current illegal sexual behavior (e.g. pedophilia, lack of understanding regarding the necessity for mutual consent, etc.), the organization's policy/procedure for addressing this situation should be followed.
The exception to #2 above is that in instances where pregnancy is not a possibility, the person may not need to demonstrate skill and understanding in this area.
If the person does not demonstrate necessary skill and understanding in above and other important areas and expresses a desire to become better educated, arrangements should be made using IDHS and/or external resources.
If the organization feels they are incapable of determining capacity to consent, arrangements should be attempted for external assessment/consultation through a qualified Medicaid vendor and/or other community resource.