A Local Authority v C [2021] EWCOP 25

Prostitution C had capacity to engage in sexual relations and to decide whether to have contact with a prostitute, but lacked capacity in relation to conducting proceedings, residence, care and treatment, internet and social media, and financial affairs. The Court of Protection decided that a care plan to facilitate C's contact with a prostitute could be implemented without committing an offence under s39 Sexual Offences Act 2003 (Care workers: causing or inciting sexual activity).

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[2021] WLR(D) 289B

Court of Protection

A Local Authority v C and others

[2021] EWCOP 25B

2020 Dec 1, 2; 2021 April 26

Hayden J

Mental disorder— Incapable person— Contact with a sex worker— Vulnerable adult with capacity wishing to contact sex worker— Local authority concerned that care plan facilitating such contact putting carers and professionals at risk of prosecution— Whether carers assisting vulnerable person with contact “causing or inciting sexual activity”— Mental Capacity Act 2005 (c 9), ss 39, 42

A 27-year-old man, C, diagnosed with Klinefelter syndrome was cared for by the local authority in assisted-living accommodation. Of his own volition C reached considered the conclusions that he wished to have a girlfriend, but accepted that his prospects of finding one were limited, that he wanted to engage in sexual activity and, therefore, that he wanted to contact a sex worker. It was agreed that although C lacked capacity in respect of some matters he had capacity both to engage in sexual relations and to decide to have contact with a sex worker. The local authority commenced proceedings to clarify whether, inter alia, a care plan facilitating C's contact with a suitable sex worker could be implemented without someone “involved in the care of” C, within the meaning of section 42 of the Sexual Offences Act 2003, “causing or inciting sexual activity” and thus committing an offence under section 39. As the proceedings took place during the Covid-19 pandemic and the associated social restrictions, it was accepted that the formation of a specific care plan for C was best placed on hold but that the court ought still to address the broad legal issue.

On the issue of statutory construction—

Held, Section 39 of the Sexual Offences Act 2003 was intrinsically linked with section 42 and, whatever the detail of the care plan, the individual assisting C would most likely fall within the reach of section 42 as a person “involved in the care of” C. Any arrangement calculated to distance or regularly replace the person undertaking the arrangements could only have been a device to circumvent the legislation and it was not appropriate, in any way, for the court to sanction a subterfuge. Further, when considering the “conditions” set out in section 39, there could be no dispute but that C had a mental disorder, that this would have been known to the carer involved in his care and that what was contemplated in any proposed care plan was sexual activity. The central question was therefore whether the carer was “intentionally causing” or “inciting” C to engage in that activity and whether the assistance provided was prohibited by the legislation. The words of the statute were to be given their natural and obvious meaning in light of: (i) the clear scheme of the legislation as a whole to prevent the exploration of the vulnerable from those in positions of trust whilst simultaneously empowering, liberating and promoting the autonomy of those with mental disorders; (ii) Parliament’s clear intention when the wording of the statute was given its literal meaning; (iii) the relevant authorities’ endorsement of a common sense construction; and (iv) the disproportionate and discriminatory interference with the article 8 rights of those with a mental disorder were a restrictive interpretation of the statute to be applied. So construed, the statutory wording was intended to criminalise those in a position of authority and trust whose actions were calculated to repress the autonomy of those with a mental disorder, in the sphere of sexual relations. Section 39 of the 2003 Act was structured to protect vulnerable adults from others, not from themselves, and was concerned to reduce the risk of sexual exploitation, not to repress autonomous sexual expression. The language of the section was not apt to criminalise carers motivated to facilitate such expression. Section 39 criminalised care workers who were found to be “causing or inciting sexual activity” whereas, in the present case, the wish to experience sex had been articulated clearly and consistently by C himself. Moreover, while it was understandable that the Secretary of State would not wish to be seen to act in a way which might be perceived as encouraging prostitution, the act was legal and the Secretary of State could not obstruct those who wished to participate in lawful transactions nor, logically those who wished to help them be they carers or otherwise. Neither the Secretary of State nor the courts had been charged with the responsibility of resolving the moral and ethical issues that were raised, which were for the individuals themselves (paras 37–38, 44, 52, 71, 72, 82–83, 86, 89–90, 91, 92–94).

Per curiam. In the present judgment the court is not considering any plan for C to visit a sex worker. That decision will be for another day when a comprehensive risk assessment has been undertaken and a care plan devised which will illuminate whether, and if so how, such a visit may be arranged.

Neil Allen (instructed by Head of Legal Department) for the local authority.

Victoria Butler-Cole QC and Ben McCormack (instructed by Odonnells Solicitors Ltd, Preston) for the vulnerable adult.

Sam Karim QC and Aisling Campbell (instructed by Hill Dickinson LLP) for the clinical commissioning group.

Fiona Paterson (instructed by Treasury Solicitor) for the Secretary of State.

Thomas Barnes, Solicitor

Referenced Legislation

Mental Capacity Act 2005 (c 9), ss 39, 42

CASES DATABASE

Full judgment: BAILII

Subject(s):

  • Capacity to consent to sexual relations cases🔍

Date: 26/4/21🔍

Court: Court of Protection🔍

Judicial history:

Judge(s):

Parties:

  • A Local Authority🔍
  • C🔍
  • A Clinical Commissioning Group🔍
  • Secretary of State for Justice🔍

Citation number(s):

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Published: 30/4/21 08:21

Cached: 2021-12-06 16:57:50