Is it lawful for carers and others working with someone with a “mental impairment” to help them to access and pay for sex?

The Court of Appeal published their decision in the case of Re C [2021] EWCA Civ 1527 on 22 October 2021.  This was an appeal  from a decision of Hayden J, on whether it was lawful for carers of a man with a mental impairment to help him to engage the services of a sex worker.  Sam Karim QC outlined the facts of the case and the issues that it threw up which had been considered by HJH Hayden in the Court of Protection.

C had capacity to engage in sexual relationships and wanted to use the services of a sex work but needs help to make arrangements and to make payment.  The main issue was whether carers who helped C would be in breach of s39 Sexual Offences Act 2003, which makes it an offence for a carer of a person with a mental disorder to ‘cause or incite’ that person to engage in sexual activity.

The social worker for C had prepared a care plan that would allow C to use the services of a sex worker with the assistance of his carers which included help to use a website of a charity specialising in the provision of sexual services for disabled people and help with making the payments.  The Court of Protection was asked to approve the plan.  In the Court of Protection, Hayden J decided, based on the plans that had been prepared, that the offence would not be committed so that the carers would not be at risk of prosecution.

The Court of Appeal allowed the Secretary of State for Justice to play a role and to appeal the decision of Hayden J.  The Lord Chief Justice was concerned about whether the Court of Protection could make decisions or grant declarations about whether the criminal law operated in these circumstances so as to effectively .

On the assumption that the Court could make those decisions, the Court of Appeal found that the steps proposed would amount to “causing” C (who had a mental impairment) to engage in sexual activity and that C’s carers would be putting themselves at the risk of committing a criminal offence. The Court of Appeal concluded that although s.39 created a situation in which C was treated differently to persons without a mental disorder (for the purposes of Art 14 ECHR) it was justified and was what Parliament intended when enacting the section, which was to provide protection to vulnerable people.

The Court of Appeal did not consider that this would cause any difficulty for many persons who receive some sort of help from carers such as carers taking a wife to visit her husband for ‘private time’ together, or carers assisting a young person who wishes to go out and meet people in social situations.

The judgement is clear that carers might find themselves committing a criminal offence under s39 if they become too involved in providing help to a person with a “mental disorder” to engage in a sexual relationship.

This is likely to throw up many issues and problems when trying to work out when “help” crosses the threshold into “causing”. This will impact not only on people (with a mental disorder) who want to use sex workers but where carers (and others involved in the care) help someone with a mental disorder to have a sexual relationship.  Each case will need to be looked at on its individual fact.

Examples already raised by legal commentators on the decision include:-

For property and affairs deputies (who might be considered a ‘carer’ given the wide definition in s42 SOA 2003) who know that money that is made available to P is being spent on sex workers they may inadvertently be guilty of “causing” the sexual activity.

If carers hoist P into position in a bed, prior to P’s sexual partner arriving to visit, is that just ‘setting the scene’? Or is it potentially a criminal offence?

The situation is even more complicated when P may not have capacity to make decisions about who to have contact with even though they have capacity to engage in sexual relations.  Carers and others working with P may be responsible for making best interests decisions as to who P has contact with.  If they make a decision that P can have contact with a particular person knowing that it might lead to a sexual relationship, would that be “causing” P to have a sexual relationship if that transpires?

The decision will affect many people, not just those who want who want to pay for sex, and it remains to be seen how it will work out on the ground, with carers, deputies and public authorities having to risk assess whether they may be committing offences. The full judgement can be found here.