Background

The case was brought forward to the Court of Appeal from the Court of Protection after Mr Justice Hayden sitting in the Court of Protection made the decision that care workers would not commit a criminal offence under section 39 of the Sexual Offences Act 2003, were they to arrange for a man aged 27 (hereafter known as “C”) to visit a sex worker in circumstances where he had capacity to consent to sexual relations and to also decide to have contact with a sex worker; with the arrangements not being made by himself. 

Preliminaries

C had been diagnosed with Klinefelter Syndrome (XXY syndrome). This resulted in developmental delays and social communication difficulties. As such, C required a large amount of assistance with independent living. C spoke with his Care Act advocate about having sexual activity with a sex worker, who then liaised with C’s social worker. In turn, the social worker raised this matter with the Local Authority and proceedings commenced addressing the lawfulness of such contact. 

The key distinction was that the concern was not whether the care workers were acting within the best interests of C and acting to make C’s wishes come to fruition, but rather whether the care workers would “cause” C to engage in sexual activity. This would directly breach Section 39 of the Sexual Offences Act 2003 and the care workers would be committing an offence were this the case. However, in brief, the judge concluded the care workers would not be doing so.

Hayden J dealt with this question and made decision which is the subject of appeal by the Secretary of State for Justice who had been added as a respondent.

Conclusions on Section 39 of the 2003 Act

Hayden J accepted the submission that the care workers arranging for the Protected Party to visit a sex worker would not amount to “causing the Protected Party” to engage in sexual activity. His reasoning being that the central Philosophy of the 2003 Act as being to “protect those where the relationship itself elevates vulnerability” along with one of the aims of the 2003 Act being “to empower, liberate and promote the autonomy of those with mental disorders.”

Most notably, the activity was desired by the Protected Party who did have capacity to decide whether to have sex or not. Section 39 aims to protect those whose autonomy could be oppressed, but importantly, not to protect them from themselves – this would contradict the aim of promoting autonomy in those with mental disorders. There would be no abuse by the care worker who had facilitated C’s choice because the actions would have been calculated to voice C’s autonomy within the sphere of sexual relations.

The proceedings of this case were regarded as a steppingstone for a further envisaged care plan regarding C’s wishes. However, the position of the Clinical Commission Group remains to be that the risks to both C and the sex worker may be too great to warrant the potential care plan facilitating this.

Grounds of Appeal

The Secretary of State advanced three grounds of appeal. (1) The judge misinterpreted section 39 of the 2003 act. (2) To sanction the use of a sex worker is contrary to public policy and (3) the judge failed to conclude that articles 8 and 14 of the Convention required his favoured interpretation.

Final Judgements and Conclusions

It was declared that despite The Secretary of State advancing grounds of appeal, the proceedings would be appealed on the basis that arranging the services of a sex worker would place the care workers in considerable risk of committing an offence under section 39 of the 2003 Act.

Lady Justice King reasoned in line with this, drawing on the Mental Capacity Act 2005: “achieving autonomy for an incapacitated adult lies at the heart of the Mental Capacity Act 2005”. It is not the role of the Court of Protection to endorse an act that would be unlawful, yet under a reading of the statute without interpretation this would be the case.

Moreover, Lord Justice Baker agreed and recommended that an appeal be allowed, stating that the powers to decide whether a proposed course of action would be criminal does not exist within the scope of the Court of Protection. Lord Justice Baker went on to highlight the risk it would place the care worker sin if this course of action were followed, in line with Lord Chief Justice.

Remarks:

Overall, this case serves to highlight the scope of law for the Court of Protection as well as raise an interesting discussion into the limits of best interests decisions for Protected Parties. Furthermore, the case highlights the core aims of both the Sexual Offences Act 2003 and the Mental Capacity Act 2005, that being, to protect the vulnerable whilst at the same time allowing for empowerment and the promotion of autonomy.

The full detail of this judgement can be found here.

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