‘Without ‘consent’ in any human interactions, there’s an ethical violation.’
– Henry Johnson Jr
Being a sex blogger who is also a doctor can be quite an interesting place to have positioned myself. Although I’ve written a few posts about being a doctor, the crossover between my worlds has often felt a little contrived, almost like I’m trying to forge myself that unique place in the blogger world, but there are clearly ways that the skills needed to be a doctor are incredibly relevant to how we interact with each other and, therefore, to sex.
This is particularly true within communication skills. Historically, doctors have been so terrible at communicating that teaching us how to speak like regular people is a significant part of our curriculum! In conversations between doctors and patients, it is so important to ensure that both sides understand each other and have said everything that they need to say. Without this, how can we ever truly communicate and make agreeable management plans?
A large part of this communication and mutual agreement is consent – does the patient understand what is planned and why, and do they agree? And so unlike in a lot of sex education, consent is a huge part of the medical curriculum for exactly this reason and is something that I negotiate every day at work. As the role of consent in sex has been given so much more focus recently, I have been looking again at these structures of consent that I use at work to see if there is anything useful that can be transferred to discussions about consent in sex.
The first and most important principle when seeking consent for a procedure or medical intervention is that this has to be informed consent. The patient has to know exactly what they are agreeing to, what the expected outcomes are, and what could go wrong. If they don’t want to go ahead, they also have to be told the consequences of refusal. We are taught strategies to reduce medical jargon to ensure that there is no ambiguity and patients are encouraged to ask as many questions as they need. Only then can they truly make a balanced decision based on the facts.
This clearly applies to sex – consent is not valid if it is not fully informed; we have to know what is going to happen in order to agree to it! Unless there are pre-agreed circumstances, ‘surprise’ sex is assault. Doing anything to anyone without their prior knowledge is assault. I can’t find the link now, and googling it produced some horrifying results, but I remember an article a few years ago suggesting that one way to persuade a reluctant partner to have anal sex was to unexpectedly ‘slip it in.’ No. Just no. This is assault! We have to talk to our partners to negotiate what we’re going to do and check in to make sure it’s still wanted. We have to give informed consent.
Part of my communication teaching at med school also emphasised how easily consent discussions can become coercive. The line between making a recommendation and being too persuasive is very narrow, and it can be particularly difficult to navigate when the intervention that I am suggesting could save their life. Even my set phrase of ‘I can’t do anything to you that you don’t want but…’ feels almost coercive, almost too persuasive. But I need to make sure they’re making an informed decision and equally need to reassure myself that my patient knows what they’re turning down, which can mean giving them a lot of information. It’s so important to then still make sure there is no pressure to stop them making a free choice. And, importantly, I must then accept that choice even if I think it’s stupid or reckless or dangerous.
So medical consent is not valid if coerced, and I think we’d all agree that sexual consent is also not valid if it is made under similar circumstances. If there is any reason that someone is unable to say no or cannot leave or feels unsafe, consent just cannot be valid. Sex under these circumstances can never be consensual. Uneven power dynamics, fear tactics or even a sense of obligation mean that consent may be forced and may not have been given if the situation was different. Sex like this stops being consensual.
These two aspects of consent are pretty logical and I don’t think making these connections between consent in medicine and in sex are all that ground-breaking. But there are further nuances when I think these comparisons become more interesting.
In medicine, we are encouraged to gain written consent. We need a document that states exactly what we are planning, what risks were communicated and who made this discussion. We need the patient’s signature to confirm their agreement, to confirm their consent, should the shit hit the fan later. Look, we can say, I’m really sorry but we had warned you that this bad outcome might happen – you signed to say we’d told you!
But even with this signed official document, the patient can change their mind at any time. Written consent is the doctors’ protection to document what was communicated, not a contract to bind the patient to the procedure. Consent can be withdrawn at any time. Even on a trolley in the anaesthetic room with the whole surgical team scrubbed and waiting. Even if expensive drugs have already been opened and prepped. Even if they’ve taken the last space on a list that someone else desperately needs. If someone has capability to make a decision, they have capability to change that decision.
A signature just shows what was agreed at that moment and can never take into account what might happen or might change after that agreement was made. Straightaway that pulls the rug out from under all of those much discussed sexual consent apps that aim to document pre-agreements and seem to suggest that these decisions can never be changed, which is of course ridiculous. And frankly dangerous! We can always change our mind, even if we’ve been kissing all evening. Even if we’re been sexting for ages and talking about how much we want this. Even if we’ve done it before. Even if we’ve already started! No documented decision removes that ability to change our mind.
The last, and most complex, aspect of medical consent comes into play when we have to consider if our patients are capable to making an informed decision. The ability to make decisions is referred to as the patient’s capacity and everyone is assumed to have it unless there is a reason to doubt it, which means that we have to accept their decisions even if they are unwise or potentially dangerous. If I can weigh up the risks, make an informed choice and express my wishes, I can basically do whatever I want. But if the decision making process is doubted, can I be certain that they making an informed decision or are they actually unable to do that clearly and so cannot really know what they are agreeing to or refusing?
Capacity can be affected if there is an ‘impairment or disturbance in the functioning of the brain or mind,’ according to the Mental Capacity Act. This could be due to dementia, intoxication, mental health conditions or due to the effects of another physical illness. This disturbance can be temporary or permanent, which is why capacity assessments are a continuous process. It is also very dependent on the question being asked and has to be reassessed for each issue. Someone with advanced dementia may have the capacity to decide what they want for dinner or if they want to go for a walk, but may not be able to make decisions about safe housing or finances.
Once it has been established that there is reason why capacity could be impaired, we then have to ask four questions: Can the patient understand what they are being told? Can they retain that information long enough to make a decision? Can they weigh up the risks and benefits of their choices? Can they communicate their decision? If the answer to any of these questions is no, and every effort has been made to optimise the chances of success, the patient is declared to lack capacity and decisions can be made in their best interests. This final part, obviously, cannot apply to sex as no one can decide what is sexually in someone’s ‘best interests.’ There may be pre-made agreements that give advanced consent for, say, sexual contact when someone is asleep but by the nature of these discussions, this is a consensual decision by someone with capacity.
How do capacity decisions otherwise apply to sex? This is where it can become murkier…
Sometimes it is obvious. Consent is not valid if someone does not have the capacity to consent, if there is a disturbance in their brain or mind that may impair their ability to make decisions. Basically if someone is so intoxicated that they are incoherent or if their judgement is sufficiently impaired, they cannot give consent. If someone has passed out or is unconscious or asleep, they cannot consent. If someone is unable to speak or communicate in any way, they cannot consent. Fine.
But there is a grey area between completely incapacitated and perfect mental clarity when these decisions are more difficult. How drunk is too drunk? How high is too high? How deep into subspace is too deep? As in medicine when I have to decide if someone’s confusion makes them too confused, for example, these decision rely on a judgement call, often from both people involved. Do you know the other person well enough and trust them enough to accept this intoxicated yes? Have you discussed this scenario before and know that they are keen even if they’d struggle to make that decision now? And if you’re the intoxicated one, do you know your own limits well enough to know when to stop and when to go? Do you know when to say enough? The Dildorks discussed exactly this issue in their amazing podcast recently, recording an episode about sex in altered states, Hazy ‘n’ Spacey.
For me, this medical model of consent and capacity is so ingrained in my thought processes that viewing sexual consent in any other way is impossible. So much so that I sometimes struggle to understand where the ambiguity some ascribe to consent has come from. As a doctor, I am in a position of enormous privilege and power, which could easily be abused if I barged on with my own plans without the patient’s agreement – even if I think what I’m doing is in their best interests. I have to check everything and check in with the patient all the way through each procedure. It would feel wrong to act any other way.
Why is sex any different? Sex is an equally powerful, equally vulnerable activity that is equally open to abuse. Why isn’t consent seen as an integral part of sex too?
This structural approach to consent may seem too logical and structured for most, particularly as it’s finer points are more useful when working out what isn’t consensual, when consent isn’t valid. I also suspect that the ease with which I use it says more about how my brain works, but it is a structure that works for me. It is logical and, for me at least, it does clarify many of the supposed grey areas within consent.
And, if nothing else, the role of consent within medicine is an example of how easily consent has become a completely integral and integrated part of my working life. Can it be so difficult to do the same with sex? Because, as GOTN wrote last month, ‘without it this is not sexy. It’s not sex.’