Particularly sensitive issues around mental capacity
Suzanna BakerTable of Contents
Mental capacity, the right to sex and the carer’s risk of prosecution
Does everyone have the right to a sex life, even those lacking mental capacity to make their own decisions and arrangements? A recent case involves sensitive issues around sexual satisfaction, mental capacity and the risk to carers of committing an offence.
The Court of Protection solicitors at Osbornes Law are experienced in advising and representing deputies, family members and others on deeply sensitive issues involving individuals who lack capacity.
What’s the background?
The man at the centre of this case was 27 and enjoyed a variety of interests ranging from sports and rap music, to history and museum visits. He also suffered a genetic disorder and had been diagnosed with autism. Over the years, he displayed such challenging behaviour that the Court of Protection eventually authorised a deprivation of liberty order in 2017 under the Mental Health Act.
In 2018, he expressed the desire for a girlfriend, wanted to be able to have sex and wanted to know if he could have contact with a sex worker. In the meantime, a suitable care package was being prepared to support the man’s needs.
However, under s39 of the Sexual Offences Act 2003, a care worker who “causes or incites” sexual activity commits a criminal offence. The question was: could a care plan allowing facilitation of sex worker visits fall foul of s39?
Earlier this year, the Court of Protection had decided that no criminal offence would be committed by care workers who make practical arrangements, where the individual has mental capacity to consent to sexual relations and chooses to have contact with a sex worker – but does not have the capacity to actually arrange it.
The Court of Appeal has now ruled that the words “causes or incites” carry their ordinary meaning. Therefore, care workers who make practical arrangements on behalf of someone with a mental disorder to use a sex worker risks committing an offence under s39.
However, the judges distinguished between scenarios such as the above; and situations where a carer arranges contact between someone who lacks mental capacity and their spouse/ partner, aware sexual activity may take place. In the latter situation, the circumstances for sexual relations between spouses are being ‘created’ rather than ‘caused’.
Was there a potential breach of the man’s human rights, specifically the right to respect for his private and family life? The appeal court pointed out that the European Court of Human Rights has never recognised a human right to purchase a prostitute’s services or to be provided with such services by the state. Therefore, s39 did not interfere with his human rights.
You can read the judgment in The Secretary of State for Justice v A Local Authority & Ors [2021] EWCA Civ 1527 here
What does this mean?
Acting as a deputy or being a carer for an individual who lacks mental capacity can involve particularly sensitive issues that may strike at the very heart of what it means to be human. There is of course a balancing act between promoting the autonomy of an incapacitated adult and having regard to their safety and protection. Our specialist Court of Protection lawyers, working with our family law specialist when needed, are experienced in offering sensitive advice and support.
To speak to a Court of Protection specialist, contact Suzanna Baker, or complete an online enquiry form.
Share this article
Contact
Contact us today
For a free initial conversation call 020 7485 8811
Email us Send us an email and we’ll get back to you
David Leadercramer has experienced it all and uses this experience to help guide clients towards the best outcome.
“I very much appreciate all the help you have offered me throughout this process. I have always found you to respond promptly and professionally to all my enquiries and you have worked very diligently to resolve the divorce settlement for me."
"Stephanie Prior... manages a varied caseload, including obstetric claims, child and adult brain injury cases and fatal and non-fatal spinal cord injury cases."
"I was impressed and grateful from the very beginning - the team are extremely detailed, very thorough, helpful and reassuring at the same time. I would absolutely recommend Osbornes Law."
Very happy with your professionalism and efficiency
Court of Protection InsightsVIEW ALL
- 18.11.2021
Family Tensions and Deputyship
Disputes between a deputy and the family of the individual concerned, can escalate and become increasingly distressing if issues are...
Read more - 27.11.2020
How to prevent a loved one entrusting their...
Record numbers of us entrust our finances to loved ones, with over 800,000 Lasting Powers of Attorney (LPA) registered yearly, according...
Read more - 19.2.2020
Young at heart have heads in the sand...
The number of over-65s is expected to increase by more than 40% within 20 years, with most of us likely to...
Read more