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Written on 24th May 2021

A recent case was considered by the Court of Protection to establish whether a carer would be in breach of the Sexual Offences Act 2003 (SOA) if they assisted a man with learning disabilities to visit a sex worker. Could that carer then be prosecuted under the SOA for “intentionally causing” or “inciting” P to engage in sexual offences? Ultimately, it was ruled that they could not. One of the primary concerns was whether a carer could be criminalised by such actions but equally any other adult who is in a relationship of trust with a vulnerable person.  

P was a twenty-seven year old man with Klineselter syndrome, a genetic disorder occurring in 1 in 660 men. This meant that P has an additional X chromosome. The disorder caused P to have a developmental delay. He was further diagnosed with autism and mental health issues, which led to him being detained in hospital for several years.  

P was assessed as having the mental capacity to engage in sexual relations. His difficulty was in finding a girlfriend.  P suggested that one solution might be for his carer to get in touch with a sex worker. This raised a number of legal and ethical questions. P was mentally capable of deciding to contact a sex worker but he did not have capacity to make decisions about his care and treatment.

P’s request was brought before the Court by the Local Authority to address whether a Care Plan to help contact sex workers could be implemented without it being an offence under the SOA.  

A statement from a director of the Professional Deputies Forum confirmed that P’s case was not unusual.  Sex workers’ services are widely requested by clients with a brain injury. Furthermore, if such requests are ignored, clients with learning disabilities may seek assistance with contacting sex workers on their own and falling into the hands of shady characters with wrongful intentions.  

The Court recognised that there is often the capacity to engage in sexual relations but these clients cannot manage the financial aspect of the contact. This puts whoever provides the funds for the sex worker’s services to the client at risk of criminal liability, whether that person is a professional deputy, care worker or a family member.  

Mr Justice Hayden agreed with the Local Authority, which initiated the proceedings, that sex work was not an illegal activity. He recognised that the specific wording of the SOA referred to penalising payments to a sex worker in circumstances where a sex worker is acting under threats, coercion or deception.  

Having reflected on the Local Authority’s representative’s bold statement that “King Edward II issued a decree in 1310 requiring that all brothels in London should be closed and over several hundred years later, the focus of the law remains very much the same”. The Judge considered the spirit (an implied intention) of the SOA.  

He highlighted that the objective was to protect vulnerable adults from abuse by others with the focus on serious breaches of trust. It was not intended to repress the lives of individuals with disabilities and mental disorders. Such an approach, he believed, which is mainly concerned with protecting children, would be unduly paternalistic for vulnerable adults. Instead, the SOA was intended to promote their free and independent decisions, including to enjoy sexual relations. The Act balances the promotion of enjoyment of private rights and criminalising unlawful abuse by those in positions of authority and trust.  

Mr Justice Hayden concluded 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”. He also said “the Act brings a range of professionals within the ambit of the criminal law, if they abuse the power bestowed on them by the unequal nature of their relationships with vulnerable adults or children”. His consideration of whether P’s request was in his best interests would be based on an assumption that P would not wish to put anybody at risk, including himself. People with mental disorders have, in the past, been prevented by the law from engaging in sexual relations, usually by a strong, but sometimes an overly strong desire to protect them.

Mr Justice Hayden granted the Secretary of State the right to appeal his interpretation of the SOA, on the basis that the Act is designed to protect the vulnerable from exploitation by others and not to repress their free expression.

This case clarifies the point that a carer cannot be found guilty of any wrong doing under the SOA by helping a vulnerable person engage in sexual activities when the person concerned has capacity to make that decision for themselves. In this case, P made it very clear that he wanted to contact a sex worker and he was the one pressing the matter. The carer was simply assisting in supporting P’s wishes and, as Mr Justice Hayden said, carers should not be prosecuted for helping patients with “the most important sphere of human interaction”.  

We act as a deputy for many clients and welcome this clarity in the law.  For more information on deputyships, please contact a team member.