The “troubled waters of sex workers, care workers and mental capacity” – the Court of Appeal provides clarity

The Secretary of State has been successful in their appeal against a controversial ruling made in the Court of Protection (CoP) in April this year concerning whether it would be lawful for a care worker to make arrangements for a 27-year-old autistic man with learning disabilities (C), to pay for the services of a sex worker.

Background

The case was first brought in the CoP before Mr Justice Hayden.

C lacks capacity to manage his legal and financial affairs and is subject to Deprivation of Liberty Safeguards (DOLS), but does have capacity to consent to sex. C had told his carer that he wanted to contact a sex worker.

The practicalities of the arrangement were that the services of a sex worker would be engaged with assistance from a charity known as The Outsiders Trust/TLC Trust, a social charity which recognises that “many disabled people (whether or not they lack capacity to make particular decisions) find difficulty in forming intimate relationships. The charity vets sex workers before allowing them to advertise their services on its website.”

During proceedings, the court was presented with an informal survey from members of the Professional Deputies Forum which confirmed that the need for sex services for disabled people is not uncommon, particularly for younger men with brain injuries. Anonymous feedback from members of the forum included accounts of deputies arranging payment for sex workers for their clients under their ‘leisure’ or ‘entertainment’ budget.

The court heard that such services have proved beneficial for people, especially those with brain injuries, and “particularly where difficult behaviour has been previously exhibited.”

However, Section 39 of the Sexual Offences Act 2003 (the Act) criminalises care workers who are found to cause or incite sexual activities if the person they are caring for has a mental disorder. This is a serious offence and if convicted, C’s care worker would have faced up to 14 years in prison.

Hayden J was asked to consider various issues, but primarily whether a care plan enabling C to contact a sex worker could be implemented without the care worker committing an offence under the Act.

Hayden J’s conclusion was that because the Act was intended to protect vulnerable adults from others, not themselves, the autonomy of adults with learning disabilities was to be respected and therefore, the care worker would not be committing an offence under the Act. The Secretary of State was granted immediate leave to appeal.

The Court of Appeal’s judgment

On appeal, the Secretary of State argued that Hayden J had misinterpreted s.39 of the Act and that sanctioning the use of a sex worker was contrary to public policy. The case came before The Lord Burnett of Maldon, Lord Chief Justice of England and Wales, Lady Justice King, and Lord Justice Baker.

The appeal was granted, since the Lord Chief Justice found that the words “causes or incites” in s.39 of the Act ought to carry their ordinary meaning. Therefore, if the care worker made arrangements for securing the services of a sex worker, that would put them at risk of prosecution.

King LJ and Baker LJ agreed with the Lord Chief Justice, although Baker LJ added that he agreed with Hayden J about the importance of respecting the autonomy of adults with learning disabilities, and that in recent years there had been an evolution of thinking about the treatment of people who sell sexual services. Baker LJ also mentioned other more innocuous situations where care workers are asked to assist people who have the capacity to consent to sexual relations, but lack capacity in other respects. Those examples included a person with dementia wishing to spend time with his or her partner, or a young person wanting to meet people of their own age in a social setting and make friends. In those cases, Baker LJ said that it might be appropriate for care workers facilitate or support such contact with the court’s approval.

Comment

This judgment has a broader impact for claims involving seriously injured claimants who seek to claim the costs of the provision of services by a sex worker as part of their claim for personal injury damages.

Whilst claims for such services are not commonplace in personal injury matters, in some complex or catastrophic cases they are made on the basis that the services are a means to manage sexual frustration and minimise the risk of inappropriate sexual conduct. Such actions may place the claimant and the wider public at a greater risk of harm and may lead to the claimant committing criminal acts. The associated administration and care fees for making such arrangements and ensuring safeguarding are extensive.

Whilst this judgment reaffirms the position that the costs for provision of sex workers are irrecoverable, it remains to be seen if this will be the end of claims being made for sexual services.

It is possible that claimant solicitors will now turn their focus to alternative packages for claimants who lack capacity. However, in our view, any such claims will need to be reasonable and proportionate to the injured individual and the specific challenges they are facing.