A decision in the case of ‘C’ has been handed down, judging him to have the capacity to engage in sexual relations and to potentially engage a sex worker and identifying issues for those who may be asked to help make such arrangements for others.
The case concerned a young man with a life-long diagnosis of Klinefelter syndrome (XXY syndrome), autism spectrum disorder and associated behavioural challenges but who in all other respects is a fit and physically able individual. In 2018, ‘C’ had expressed a wish to those supporting him, to meet a girlfriend but considered his prospects of finding one very limited. He wished to engage in sexual relations and wanted to know whether he could have contact with a sex worker.
In a clinical assessment of ‘C’ capacity, it was established that he had the capacity to engage in sexual relations and to potentially engage a sex worker. But ‘C’ was not thought to be capable of sourcing a suitable and safe provider of the services, the location where the services might be delivered, or arranging payment for those services. He needed help from his support team for the later aspects who were understandably concerned that they may be open to criticism were they to proceed to help ‘C’ in this way and whether they might be themselves committing a crime under the Sexual Offences Act if they in effect caused or incited this young man to engage in sexual relations. Under the Sexual Offences Act 2003 a care worker who intentionally causes or incites someone in their care with a mental disorder to engage in sexual activity can be jailed for a maximum of 10 years. The commissioning authority, therefore, sought the guidance of the Court of Protection.
It is a complex matter and Judge Hayden handled the case with a huge amount of sensitivity. He concluded that in certain cases where the person involved has the capacity to engage in sexual relations it may be acceptable for support workers to make the arrangements. In effect, this means that care workers, friends, and families of disabled people can help them meet prostitutes without breaking the law. Anyone planning to take these steps must first seek the approval of the Court of Protection for the plan to ensure they are operating lawfully. The care worker must also be willing to assist and cannot themselves be compelled to act in this way.
I have a personal interest in the case as I act as a professional deputy for a wide range of clients who are assessed as lacking capacity in some regards, but for whom these may be real issues. Although I have never yet been asked to specifically arrange a contract with a sex worker, I am aware that some of my clients may choose to spend the personal allowance that I manage in this way. By providing the funds- am I also open to criticism?
The case reminds me of the balance required between maintaining the privacy and personal rights of those in my care and not inadvertently inciting an offence to be committed.
The judgement in ‘C’ has provided somewhat controversial. The Secretary of State will appeal the decision on the basis that it goes against public policy to encourage the use of sex workers. It is expected that the appeal will be heard in the Court of Protection before the end of this month.