Mental capacity to engage sex workers
Jemma Garside reflects on a landmark ruling with potentially wide-reaching implications for prostitution
Last month, the vice-president of the Court of Protection, Hayden J, handed down a judgment in a landmark ruling.
At the centre of the case, P – a young man with capacity to engage in sexual relations and have contact with a sex worker, but who lacked the necessary capacity to make care and treatment decisions or to manage the financial transaction required to engage a sex worker.
When considering this case, it is important to note the circumstances. P has autism and a genetic disorder, but is otherwise fit and healthy; he resides in supported accommodation and needs assistance with many aspects of daily living.
He had expressed a desire to have a sex life but, due to his condition and life circumstances, felt his prospects of finding a girlfriend were limited. In order to fulfil his sexual desire, he asked carers to engage a sex worker on his behalf.
The court found that a carer implementing a care plan which included facilitating contact with a sex worker would not be committing an offence under section 39 of the Sexual Offences Act 2003 (SOA); the offence of causing or inciting sexual activity for a person who has a mental disorder.
Sex work itself is not illegal, but s53 SOA creates an offence of paying for the services of a prostitute who is subjected to force, threats, coercion or deception.
It was emphasised that such a sex worker would not be sought in this case; an agency had been identified with the assistance of a charity specialising in providing support for the provision of sexual and intimate services.
These are a specific set of circumstances and Hayden categorically stated he would need sight of a care plan and risk assessment before approval by the court.
However, the principle that a care worker would not be committing a criminal offence by facilitating P’s contact with a sex worker was established.
There is no doubt Hayden J was aware of the sensitivities involved; the judgment is tactful and carefully considered, indeed he references the length of time it took him to grapple with the issues, which he was allowed to do by virtue of pandemic lockdowns. He recognised the delicacy and sensitivity of the issues and reports the facts and findings in a reflective manner, with no hint of judgement.
Hayden J placed P’s autonomy at the heart of the judgment, as is only right. In his closing remarks, he reiterates the need to focus on the fact this case involves “a young man who faces many challenges in life and whose emotional security remains fragile”.
The judgment explores the development of the law, alongside changes in societal attitudes towards those with mental disorders having sexual relationships.
The objective of the SOA is to protect vulnerable adults to prevent those in positions of trust abusing their powers, causing harm.
The circumstances of P’s case do not raise such concerns; this is what Hayden describes as the “mischief” of the legislation. That is, if applied literally, P’s wish to express his sexual desires would be repressed.
The decision has been appealed by the Justice Secretary, Robert Buckland QC, due to the implications for policies on eradicating prostitution, so this is not the end of the matter. However, the wider implications of this case are likely to be far reaching.
Campaigners have long fought to dispel society’s negative attitudes of disability and sexuality. The notion a person should not be able to fulfil their sexual desires by virtue of a disability is not a satisfactory one.
If it is accepted people with disabilities should enjoy the same rights as those who do not have a disability, then they should not be denied a sexual relationship.
Equally, campaigners for women’s rights, including those with disabilities, have grave concerns that this case will be seen as justification for the purchase of sexual services, rather than the encouragement of loving or intimate relationships.
Carers considering this judgment may also now feel at risk of being discriminated against for their own personal views and beliefs.
Many carers work to a “zero hours contract” with low pay; they will not want to risk being in breach of the terms of their employment by refusing to facilitate contact with a sex worker.
Protection may be offered under the Equality Act 2010 and forcing carers to implement care plans could amount to indirect discrimination. But these are issues that will need to be tested.
Another implication from this case is the impact on the elderly who may reside in care homes and have fluctuating capacity.
Although P had capacity to consent to contact and sexual relations, the question must be asked in respect of those who no longer do by virtue of medical conditions, including dementia.
The Mental Capacity Act 2005 requires any decision a party is not able to make for themselves is made in their best interests. This requires the application of a checklist including considering the individual’s past and present wishes and feelings and the decision they would have made when they possessed capacity.
How Hayden J's decision translates for this wider audience is an issue that will need to be tested by the courts in due course. Future judgments are likely to be highly case-specific.
Tensions with the HRA
In a previous case, Hayden J said: “I cannot think of any more obviously fundamental human right than the right of a man to have sex with his wife – and the right of the state to monitor that… I think it is entitled to have it properly argued.” This case required even further consideration of these principles, beyond the realms of marriage.
Hayden J was satisfied that P’s wish to participate in sexual relations engaged his right to a private life under Article 8 of the European Convention on Human Rights (ECHR).
In the circumstances, any intervention by the state must be proportionate, particularly given that “sexual activity constitutes one of the most intimate facets of an individual’s private life”.
Is s39 SOA discriminatory?
The judge considered whether s39 is discriminatory towards people with disabilities, in breach of Article 14 ECHR.
At paragraph 83, he stated: “Applying the above analysis drives me to the conclusion that the interference with Article 8 rights, consequent upon the restrictive interpretation of Section 39 SOA 2003, contended for by the Secretary of State, is indirectly or collaterally discriminatory towards C and to others with mental health disorders. Its effect would be to criminalise those who care for individuals with a particular type of disability.”
In this case, P did not have a deputy for property and affairs or personal welfare. However, a report was obtained from a professional organisation with a membership made up of professional deputies for property and affairs, the Professional Deputies Forum.
Having consulted its members, it informed the court that such requests are made and they have to be dealt with in accordance with the realms of their authority. They also highlighted a number of issues and concerns that arise in practice.
The consensus among those consulted was that guidance from the court was required. Deputies will now be satisfied that they and their employed carers will not be at risk of criminal prosecution for facilitating contact with sex workers as part of their client’s care plan.
However, whether such care plans in themselves are in accordance with their client’s best interests is another matter and one which is likely to be the subject of further judicial scrutiny in due course. This will assist deputies and other practitioners in the field.
Further developments are expected as the case proceeds to the Court of Appeal.
Jemma Garside is a senior associate at Kingsley Napley www.kingsleynapley.co.uk