Particularly sensitive issues around mental capacity

Suzanna Baker

Table 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 us today

For a free initial conversation call 020 7485 8811

Email us Send us an email and we’ll get back to you

    • "Osbornes has a growing influence and impressive work load and is gaining a reputation for handling complex catastrophic work."

      The Legal 500

    • 'The team deals with multi-million pound, often multifaceted claims, involving such factors as severe brain, psychiatric, gynaecological and spinal injury, major trauma, amputation and fatality.'

      Legal 500 2023

    • "She has represented victims in a number of high-profile cases."

      Chambers UK 2023

    • “The flowers were to say ‘thank you’ for going beyond the call of duty to contact the other side. Most impressed by your ‘can do’ attitude, despite your work load today” and subsequently “thank you very much for all your effort and I am delighted I chose to trust you. I cannot thank you enough for your support. Thank you”.

      Divorce client

    • "The team at Osbornes deals with catastrophic injury claims with the same professionalism as the largest firms, but provides a much more client-focused experience."

      Legal 500 2023

    Court of Protection InsightsVIEW ALL

    1. Elderly woman hold smartphone feels disappointed by received bad news

      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
    2. 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
    3. 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