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Paying for sex and the Court of Protection

The Vice President of the Court of Protection has issued a detailed judgment on, amongst other things, whether a care plan to facilitate contact with a sex worker could be implemented without the commission of an offence. Alex Ruck Keene examines the ruling.

In A Local Authority v C & Ors [2021] EWCOP 25, Hayden J had to consider the situation of C, a man with capacity to engage in sexual relations and to decide to have contact with a sex worker but without capacity to make decisions as to his care and treatment or to manage his property and affairs.

In August 2018, C told AB, his Care Act advocate and litigation friend, that though he wanted to have a girlfriend, he considered his prospects of finding one to be very limited. He said that he wanted to be able to have sex and wished to know whether he could have contact with a sex worker. AB raised the matter with C’s social worker, and, in due course, proceedings were commenced, by the local authority, to address the lawfulness of such contact.

The issues before the court were:

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i. Whether a care plan to facilitate C’s contact with a sex worker could be implemented without the commission of an offence under the Sexual Offences Act 2003;

ii. If not, whether the Sexual Offences Act 2003 can be read compatibly with the European Convention of Human Rights, or whether the Court should make a declaration of incompatibility;

iii. If a care plan facilitating such contact is lawful, whether such a plan would be in C’s best interests.

The potential offences under the SOA 2003 were (1) that created by s.39 where a care worker causes or incites sexual activity where the person caused/incited has a mental disorder; and (2) 53A, paying for sexual services of a prostitute subjected to force or other exploitative conduct. Hayden J found, however, that s.53A had little, if any, relevance to what is being contemplated for C in the particular circumstances of his case.

The position of the relevant parties were summarised at paragraph 37 of the judgment thus:

Ms Butler-Cole and Mr McCormack [for C] contend that the kind of support contemplated above i.e. assistance with making practical arrangements to contact, visit and pay a sex worker, falls outwith the scope and ambit of Section 39 SOA 2003 and thus does not criminalise those offering the support. In this they are supported by Mr Allen, on behalf of the Local Authority. Ms Paterson, acting on behalf of the Secretary of State for Justice, who was joined as a party to the proceedings, contends that a construction of Section 39 which rendered lawful a carer’s assistance to C in securing the services of a sex worker, would be to go beyond the wording of the legislation and “would amount to an amendment to the law, as opposed to an interpretation, be it purposive or Convention compliant”. This, it is submitted, would be to “encroach upon the role of the legislature or Parliamentary sovereignty”. The CCG submit that the lawfulness of the care plan must be determined by the Court. Mr Karim QC and Ms Campbell, on behalf of the Clinical Commissioning Group, properly highlight that whilst every step should be taken to promote C’s personal autonomy, it is also important to protect him and those providing his care. Further, they emphasise that “it is imperative any package of care is lawful so as not to place any carers liable to criminal prosecution”. All this is axiomatic.

The judgment is detailed, careful and lengthy, and repays reading in full. Its conclusions are to be found at paragraphs 89 and onwards:

89. The central philosophy of the SOA is to protect those in relationships predicated on trust where the relationship itself elevates vulnerability. This essentially progressive legislation has been careful, in my judgement, to avoid constricting the life opportunities of those with learning disabilities or mental disorders. In contrast to earlier legislation it seeks to achieve protection of the vulnerable without resort to paternalism. The ambition of the Act is to empower, liberate and promote the autonomy of those with mental disorders. It signals a shift away from a regime which was recognised to be overly restrictive and not sufficiently understanding of the rights and liberties of those confronting life with mental disorders. Both the SOA and the Code for Crown Prosecutors (considered above at para 63) plainly take account of the UK’s obligations arising from international conventions.

90. The Act brings a range of professionals within the ambit of the criminal law, if they abuse the power bestowed on them by the unequal nature of their relationships with vulnerable adults or children. As such the Act is both promoting free and independent decision taking by adults with mental disabilities, whilst protecting them from harm in relationships where independent choices are occluded by an imbalance of power. It is tailored to promoting the right to enjoy a private life, it is not structured in a way that is intended to curtail it. In the past legislation endeavoured to prevent those with mental disorders from engaging in sexual relations. The SOA plots a different course. At risk of repetition, I would emphasise the duality of approach in the SOA, in effect striking a balance between protecting those with mental disorders whilst enabling independent choices, in this most important sphere of human interaction. It follows, of course, that such choices are not confined to those which might be characterised as good or virtuous but extend to those which may be regarded, by some, as morally distasteful or dubious. Protection from discrimination facilitates informed decision taking. Those decisions may be bad ones as well as good. This is the essence of autonomy.

91.  In C’s case there is clear and cogent evidence that he has the capacity to engage in sexual relations and to decide to have contact with a sex worker. He understands the importance of consent both prior to and during sexual contact. He appreciates the link between sexual intercourse and pregnancy. He recognises the possibility of sexually transmitted disease. He lacks capacity to make the practical arrangements involved in identifying a suitable and safe sex worker and is unable to negotiate the financial transaction. What is proposed is that C will be assisted in these arrangements by carers who are sympathetic and content to help him. As I have set out above, this is delicate but not unfamiliar terrain (see para 10 et seq.) I reiterate, this requires to be addressed with both maturity and sensitivity.

92.  Section 39 criminalises care workers who are found to be “causing or inciting sexual activity”. Here however, the wish to experience sex is articulated clearly and consistently by C himself. He reasons that his overall presentation, the challenges he faces in his general functioning (into which he has some insight) and the circumstances in which he lives, all strongly militate against his being able to find a girlfriend. He lacks the capacity to make informed decisions in his use of the internet. His use of the internet is therefore restricted and monitored. This too closes opportunities for social interaction. C makes the utilitarian calculation that if he is to experience sex, which he strongly wishes to do, he will have to pay for it. C has repeated his wishes to his carers consistently and cogently over the course of the last 3 years. I met with him, via a video conferencing platform. He understands that I am considering what the law permits and that should I come to a conclusion that the law will not stand in the way of carers who are willing and able to help C achieve his wishes, any plans will have to await greater progress in the battle against the pandemic.

93. The mischief of Section 39 SOA 2003, as elsewhere in the legislation, is exploitation of the vulnerable. The provision is perhaps not drafted with pellucid clarity, but its objectives are identifiable. It is intended to signal unambiguous disapprobation of people employed in caring roles (i.e. care workers) who cause or incite sexual activity by a person for whom they are professionally responsible. The legislative objective is to criminalise a serious breach of trust and, as I have commented, attracts a significant custodial sentence. The words of the statute need to be given their natural and obvious meaning. They are intending to criminalise those in a position of authority and trust whose actions are calculated to repress the autonomy of those with a mental disorder, in the sphere of sexual relations. Section 39 is structured to protect vulnerable adults from others, not from themselves. It is concerned to reduce the risk of sexual exploitation, not to repress autonomous sexual expression. The language of the section is not apt to criminalise carers motivated to facilitate such expression. In my judgement, the expanded interpretation of this provision, contended for on behalf of the Secretary of State, requires the language of the section to be distorted and the philosophy of the Act to be disregarded.

94.  Though at risk of repetition, I reiterate that the proposals contemplated here strike me as being far removed from the identified mischief of the relevant provisions. To interpret them as encompassing the proposed actions of the care workers, requires both a distortion of the plain language of the statute and a subversion of the consistently reiterated objectives of the SOA itself. Indeed, given that the Act embraced an evolved understanding of the rights of people with learning disabilities and mental disorder, the more restrictive interpretation, suggested by Ms Paterson, would run entirely counter to its central philosophy. Ms Paterson, sensibly to my mind, recognises the force of the above. Instead, she concentrates her argument on general policy grounds, as I have set out. There is a logical paradox in the reasoning of the Secretary of State. He wishes to discourage prostitution, which many would think to be a laudable objective. Parliament, however, has recognised the futility of seeking to criminalise prostitution and, accordingly, it remains legal. Thus, the Secretary of State, in this instance, finds himself in the invidious position of trying to discourage, by guidelines and policy, that which the law allows. Where that discouragement has equal impact on society generally it may be a reasonable objective. Where it operates to restrict the autonomy of a particular group, as here, it cannot be justified.

95. It follows that, having applied the primary principles of statutory construction to arrive at the above interpretation, it is entirely unnecessary for me to deploy Section 3 HRA 1998 in order to construe a legal meaning which is compatible with Convention rights, see: Ghaidan v Godin-Mendoza [2004] 2 AC 557. These domestic provisions are entirely consistent with the fundamental rights and freedoms protected by the ECHR. However, it is important to record I consider that had I been required to have recourse to Section 3, I would have had little hesitation in concluding that the Convention required the construction that I had already arrived at. Any other interpretation would, in my judgment, go entirely ‘against the grain’ of the SOA.

Hayden J, therefore, found that what C was seeking was not in principle going to lead a care worker to be committing a criminal offence.  That was not quite the end of the story, though, as he went on to note (at paragraph 96):

In due course I will have to consider whether it is in his best interests to pursue the course that he has set his mind on. As part of that evaluative exercise, I will have in mind that it will never be in C’s interest to put himself or others at risk.

More immediately, in a separate judgment handed down on the same day, Hayden J granted permission to Secretary of State to appeal his conclusion about the construction of the Sexual Offences Act, holding that:

Not without some hesitation, I have concluded that the tension between general policy considerations, identified on behalf of the Secretary of State, in relation to sex workers and my interpretation of the language of s. 39, falls within that small and discrete category of cases contemplated by rule 52.6(1) (b) [i.e. some other compelling reason for permission to appeal to be granted]. In the circumstances and for the above reasons only, I am prepared to grant permission to appeal.

As the matter is under appeal, I do not make further comment upon it at this time.

Alex Ruck Keene is a barrister at 39 Essex Chambers. This article first appeared on his Mental Capacity Law and Policy blog.

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