In an important judgement handed down by the Court of Appeal, following the matter of A Local Authority v C & Ors [2021] EWCOP 25, the Court has provided some awaited guidance as to whether care teams and carers can help vulnerable clients engage the services of a sex worker.
Background
This case concerned C, a 27-year-old man with diagnoses of Klinefelter syndrome and autistic spectrum disorder.
C expressed a strong wish to know whether he could have contact with a sex worker, a desire which he had consistently expressed to his carers over a number of years.
Whilst it was established that C had the capacity to engage in sexual relations, and in turn to decide to have contact with a sex worker, he lacked the capacity to make decisions in relation to his financial affairs, social media and the internet, and care and treatment.
As it stood, C would not be able to make practical arrangements to visit a sex worker, or pay them, without the support of his care team.
Legally, paying for sex is not a crime, but action that encourages its arrangements are. Section 39 of the Sexual Offences Act 2003, criminalises actions that intentionally ‘cause or incite’ sexual activity involving a person who has a mental disorder, by a person involved in that person’s care.
C’s care team were therefore concerned that they would be acting illegally if they agreed to help.
Seeking Clarity
In light of the concerns, the Court of Protection was asked to determine whether a care plan to facilitate C’s contact with a sex worker could be implemented without the commission of an offence under the Sexual Offences Act 2003.
In a ruling, published back in April 2021, Hayden J found that facilitating C to have contact with a sex worker would not in principle lead his care workers to be committing a criminal offence.
In reaching his decision, Hayden J deemed that the approach of the Sexual Offences Act was to strike a balance between protecting those with mental disorders, whilst enabling independent choices. He suggested it isn’t intended to criminalise carers who were motivated to facilitate an individual’s autonomous sexual expression:
“Section 39 is structured to protect vulnerable adults from others, not from themselves. It is concerned to reduce the risk of sexual exploitation, not to repress autonomous sexual expression. The language of the section is not apt to criminalise carers motivated to facilitate such expression”.
He went on to also suggest that if the law banned the carers from helping C, that would give rise to discrimination because anyone else without his condition could lawfully pay for sex.
The Secretary of State for Justice was granted leave to appeal this decision.
On appeal
On 22 October 2021, Judgement was handed down by the Court of Appeal, which has seen the appeal granted. As it now stands, a care team cannot be lawfully involved in facilitating contact with a sex worker for a vulnerable person.
Whilst the Court acknowledged that achieving autonomy for an incapacitated adult lies at the heart of the Mental Capacity Act 2005, they could not agree that allowing a carer to assist in securing the services of a sex worker would be outside the scope of s.39.
Lord Burnett of Maldon, Lord Chief Justice of England and Wales said further:
“the arrangements envisaged for securing the services of a sex worker would place the care workers concerned in peril of committing an offence contrary to section 39 of the Sexual Offences Act”.
He added:
“C’s care plan cannot proceed based on such arrangements …it is imperative that any package of care is lawful so as not to place any carers liable to criminal prosecution.”
On the point of whether s.39 was discriminatory, Lord Burnett CJ, stated:
“The discriminatory effect of section 39 cannot be stigmatised as being manifestly without reasonable foundation. The statutory provision is clearly justified”
The future
Whilst this judgement will be welcomed clarification for care teams and carers supporting vulnerable people, it will no doubt be disappointing to C and vulnerable adults expressing similar desires.
However, more generally, it was accepted that there may be limited circumstances where it might be appropriate for the Court of Protection to endorse a care plan where there was provision which has the consequence of P engaging in sexual relations, but only where it is lawful and in P’s best interests. This will, however, still require close scrutiny and careful consideration by the Court.
For now, assisting a vulnerable person to engage the services of a sex worker will require a change in the law, which looks unlikely any time soon.
