This case concerns a 27 year old man (referred to as ‘C’) who has a life-long diagnosis of Klinefelter syndrome, autistic spectrum disorder and associated behaviour challenges. In 2018, while deprived of his liberty in a supported living placement, he told his Care Act advocate and litigation friend that though he wanted to have a girlfriend, he considered his prospects of finding one to be very limited. He said he wanted to be able to have sex and wanted to know whether he could have contact with a sex worker. He had ‘repeated his wishes to his carers consistently and cogently over the course of the last three years’.
‘C’ has been very specifically assessed and was found as having the capacity to engage in sexual relations and to potentially engage a sex worker but not able to source a suitable and safe provider of the service or the location where the services might be delivered. To access these services, he would therefore need support from his personal carers or a court-appointed deputy.
The central question is whether a care worker or deputy might be committing a crime under Section 39 of the Sexual Offences Act 2003, if they actively cause or incite ‘C’ to engage in sexual relations.
In judgment, HHJ Hayden said that ‘it is no longer the objective of the law to prevent people with mental disorders from having sexual relationships, rather it is to criminalise the exploitation and abuse of such adults by those with whom they are in a relationship of trust’. If the law banned the carers from helping C, that would be discrimination because anyone else without his condition could lawfully pay for sex. The judge said that whether a paid sexual relationship would genuinely be in C’s best interests could only be considered once a specific plan had been devised.
Responding to objections by Justice Secretary Robert Buckland, HHJ Hayden said ‘Neither the secretary of state nor I have been charged with the responsibility of resolving the moral and ethical issues that are raised. Those are issues for the individuals themselves. Parliament has recognised that the state should retreat from this sexual arena’. He added that while it is ‘entirely reasonable’ that Buckland ‘would not wish to be seen to act in a way which might be perceived as encouraging prostitution, the fact remains that the act is legal’.
For adults whose affairs are overseen by the Court of Protection and those involved in their care, this landmark judgment will hopefully provide some clarification for carers seeking reassurance about what they can and cannot do when it comes to sensitive requests of this nature.
Lawyers for Justice Secretary Buckland are now appealing the ruling and our Court of Protection team will keep a close eye on future developments of this case.
The full judgments can be found at the links below.
https://www.bailii.org/cgi-bin/format.cgi?doc=/ew/cases/EWCOP/2021/25.html&query=(%22hayden%22)
https://www.bailii.org/cgi-bin/format.cgi?doc=/ew/cases/EWCOP/2021/26.html&query=(%22hayden%22)
If you have a loved one who lacks the mental capacity to manage their own affairs, call our specialist Court of Protection team today on 01926 354704 or email: courtofprotection@moore-tibbits.co.uk