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Court of Appeal rules on lawfulness of carers assisting clients to visit sex workers

by Helen Smith and Josephine Davies-Warner, lawyers in our public law and human rights team

The Court of Appeal has overturned a Court of Protection decision by Mr Justice Hayden, holding in a unanimous judgment that care workers would be at risk of committing a criminal offence if they were to make practical arrangements for a person in their care to visit a sex worker.

The case of Secretary of State for Justice v A Local Authority & Ors concerned C, a 27-year-old man with Klinefelter syndrome (sometimes called ‘XXY syndrome’) who needs significant care and support. 

C wanted a girlfriend and tried conventional methods of meeting someone, but without success. C told his advocate that he wanted to have sex and asked whether he could have contact with a sex worker. 

C has capacity to consent to sexual relations and to decide to have contact with a sex worker. However, he lacks capacity to manage his financial affairs or to decide to use the internet and so lacks capacity to make the necessary arrangements to engage the services of a sex worker. C would therefore need support from his care workers to book, visit and pay a sex worker.

Section 39 Sexual Offences Act (“SOA”) 2003 provides that it is a criminal offence for a care worker to intentionally ‘cause’ a person with a mental disorder under their care to engage in sexual activity. The Court of Protection was asked to determine whether making the necessary arrangements for C to visit a sex worker would amount to C’s care workers ‘causing’ C to engage in sexual activity, thus committing an offence under s.39 SOA 2003.

Hayden J interpreted the purpose of s.39 SOA 2003 as “to criminalise those in a position of authority and trust whose actions are calculated to repress the autonomy of those with a mental disorder, in the sphere of sexual relations… to protect vulnerable adults from others, not from themselves… to reduce the risk of sexual exploitation, not to repress autonomous sexual expression”. On this basis, Hayden J concluded that C’s care workers would not be committing an offence by making arrangements for C to have sex with a sex worker, as they would be facilitating C’s autonomous sexual expression, not repressing his sexual autonomy. 

The Secretary of State for Justice sought to appeal Hayden J’s decision principally on the basis that Hayden J had misinterpreted s.39 SOA 2003 (other grounds were put forward but proved less decisive). Lord Burnett, King LJ and Baker LJ unanimously allowed the appeal. 

The Court of Appeal found that the Court of Protection had over-extended itself in trying to interpret s.39 SOA 2003 in a way that enabled the facilitation of vulnerable people’s sexual expression. The Court of Appeal took matters back to principles of criminal law, finding that the arrangements envisaged for C would amount to his care workers being the “operative cause” of him engaging in sexual activity, thereby placing the care workers “in peril of committing an offence contrary to section 39”, and that C’s care plan could not lawfully proceed based on such arrangements.

However, the Court of Appeal emphasised that this case had very much been decided on the specific facts of C’s case. 

Baker LJ recognised that there are other situations where it might be appropriate for the Court of Protection to endorse a care plan under which care workers facilitate or support contact that leads to the person they care for (“P”) engaging in sexual activity. He emphasised that any decision would “turn on a thorough analysis of the specific facts of the individual case”, but provided potentially ‘permissible’ examples of a person with dementia living in a care home who wishes to spend time with their partner at the family home, or a young person who wishes to meet people of their own age and make friends. 

King LJ described the example of a care worker arranging “private time for a long married couple which she knows is likely to include sexual activity” as “wholly different” to C’s situation. 

There will no doubt be discussion as to the reasonableness of such distinctions and whether there is any material difference in a care worker supporting P to spend “private time” with their partner and a care worker supporting C to visit a sex worker, putting aside any views on the social desirability (or otherwise) of the two situations.

Lord Burnett distinguished between acts of care workers that “create the circumstances in which something might happen” and acts of care workers that “cause it in a legal sense”; while C’s care workers would fall into the latter category, care workers who arrange contact between P and their partner would “more naturally be creating the circumstances for that activity rather than causing it in a legal sense”.

Perhaps crucially, in C’s case, both C and his care workers would also be exposed to the risk of prosecution under s.53A SOA 2003, which makes it an offence to pay for sexual services from a sex worker who has been exploited. Clearly this risk, which was highlighted by both Lord Burnett and Baker LJ, would not exist where care workers were arranging contact between P and their partner.

The door has been left firmly open for future cases - with more commonplace and arguably less contentious facts - to revisit the issue of what amounts to care workers ‘causing’ a person in their care to engage in sexual activity. 

Irwin Mitchell represented IRCM - an intervenor in this case.

Find out more about Irwin Mitchell's expertise in handling human rights cases at our dedicated protecting your rights section.

In a ruling that will have far-reaching consequences, Lord Justice Stephens said the case raised issues of profound significance. He said the Mental Capacity Act 2005 and the court of protection “do not exist in a vacuum but are part of a wider system of law and justice, and so must take into account the need to protect others”.”