Court of Protection rules that carers can help vulnerable people visit sex workers
In a recent landmark judgment, the Court of Protection heard a case concerning a 27-year-old man suffering from autism. Due to his mental disabilities, the man, known as C, lacked the ability to make several kinds of decisions for himself, and so it was up to the Court of Protection to make these decisions for him.
The man is fit and healthy but has live-in carers because he needs help with day-to-day aspects of his life. He had accepted that he was unlikely to find a romantic partner but wanted to experience sex, and so he had asked his carers if they could help find him a sex worker who would be paid for their services. This led to involvement from the Court of Protection as it was not clear to the carers if they were permitted to do so, both morally and legally.
The role of the Local Authority in decision making
The Court was concerned about the role the Local Authority should play in helping C to access sex workers. The Court was concerned with two competing issues:
- That this young man should not be disadvantaged in accessing services available to those with capacity purely because of his autism.
- Under the Sexual Offences Act 2003, a person would be committing a criminal offence if they intentionally caused, or incited C to engage in sexual activity. In this case, any carer supporting the man in accessing sex services could have been criminally liable.
Is it lawful for a support worker to help with access to sex workers?
The Judge outlined that, “historically, motivated by a paternalistic desire to protect them, [the law effectively prohibiting persons lacking capacity from having sexual relations] had the countervailing consequence of dismantling their autonomy and failing to respect their fundamental human rights”.
The Judge ruled that it is not unlawful for a support worker to assist C in obtaining sex workers. The Judge stated that it would be wrong to stop a young man with mental disabilities from fulfilling a natural desire. It was also mentioned that if the law banned the carers from helping C, it would be classed as discrimination because anyone without his condition can lawfully pay for sex.
Lawyers for the Justice Secretary have since raised concerns and asked for the decision to be appealed. They have said that the Government cannot be seen to condone prostitution and the case raises ethical, moral and legal dilemmas.
This is a landmark ruling for both clients of the Court of Protection and those involved in their care. It is no doubt a question that has been asked before, and this judgment will hopefully provide some clarification for carers seeking reassurance about what they can and cannot do when it comes to such a sensitive request.
As the matter is under appeal, our Court of Protection lawyers will keep a close eye on further developments. If someone close to you lacks the mental capacity to manage their own affairs, our Court of Protection solicitors can provide practical advice. Call our dedicated team on 0117 325 2929 or fill out our online enquiry form.