In Secretary of State for Justice v A Local Authority & Ors  EWCA Civ 1527 the Court of Appeal decided that a local authority care plan will not be lawful if it includes arrangements for a service user who has capacity for sex to have visits arranged with a sex worker, even if this is what P wants and uses his own money to pay for the services provided. In doing so, the Court overturned a sensitive and sensible decision of Mr Justice Hayden who had decided that a care worker would not breach the criminal law if he or she did so. Local Authorities will have to follow this decision unless and until it is overturned by the Supreme Court or Parliament changes the law or possibly it is clarified by a further legal challenge to the CPS (as set out below). Hence, at least for the moment, care workers will need to remove any arrangements in care plans relating to services being provided by sex workers to a service user. Courts can only answer the question put in front of them and I suggest that perhaps, in this case, the wrong case was brought against the wrong public body, and so the wrong court was asked the wrong questions. Inevitably, the outcome is therefore wrong.
The question as to whether it is lawful for care plans to include arrangements for those with disabilities to have visits from sex workers has been around for a number of years. The legality of including such provisions in care plans has now reached the Court of Appeal, with a judgment being handed down on 22 October 2021. In summary, the Court of Appeal decided that a care worker who arranged a sex worker for a person with disabilities would potentially commit an offence under section 39 of the Sexual Offences Act 2003 because the intervention of the care worker would “cause” a person with a mental disorder to engage in sexual activity. Hence, in effect, the Court of Appeal ruled that care plans should not include provisions of this type.
The case concerned a man with Klinefelter Syndrome who had capacity for sex but had, to date, been unable to form a relationship with a woman. He thus decided he wanted to use the services of a sex worker. That was, of course, a lawful decision for him to make and, as long as the proposed relationship was consensual and free from exploitation, this would be a lawful arrangement. However, the man did not have the capacity to make the arrangements to secure the services of a sex worker. Thus, he asked his care workers to make the necessary arrangements. The care workers were willing to assist but were concerned that they may inadvertently breach the criminal law if they made the arrangements and so the Court of Protection was asked for guidance. That was a slightly odd place for the case to be decided because, by definition, the Court of Protection was being asked to decide the lawfulness of actions for a person where he had subject matter capacity. Strictly, that falls outside the scope of the Court of Protection and so maybe the case should have transferred to the Administrative Court.
However Mr Justice Hayden decided the case and decided it was a lawful care plan. The Court of Appeal disagreed. All 3 judges decided that the care workers could not lawfully assist P because they would be responsible for causing a person with a mental disorder to engage in sexual activity because their actions would breach section 39 of the Sexual Offences Act 203 and so were potentially unlawful.
The underlying purpose of the section 39 offence was, as the Court confirmed, to protect those with mental disorders from exploitation. That is entirely justifiable in public policy terms but the wide language used by Parliament to define the relevant offence was so wide that it not only criminalised exploitative sexual activity for those with a mental disorder but it also criminalised any care worker who supported someone with a mental disorder to have entirely consensual, non-exploitative sex. The wide wording of section 39 thus penalises any care worker who assists any person with a mental disorder from engaging in any sexual activity in any circumstances.
The section 39 offence applies to anyone with a “mental disorder”. Section 79 of the 2003 Act provides “mental disorder” has the meaning given section 1 of the Mental Health Act 1983, and that means “any disorder or disability of the mind”. That can cover anything from the most serious case of psychosis through to mild depression.
The fact that, in this case, the care workers were asked to organise paid sex for P with a sex worker ought to have been largely irrelevant. The wording of the section 39 offence is so wide that it applies regardless as to whether the sexual activity is paid for or not; or is between strangers or people who have known each other for decades and have years of prior consensual sex. It could occur where a care worker facilitates sexual activity between a married couple where one of them has a mental disorder.
Baker LJ, a Judge who is hugely experienced in these tricky areas, appears to have had these problems in mind. He said:
“I recognise that there are other situations where care workers are asked to assist people who have the capacity to consent to or engage in sexual relations but lack capacity in other respects, for example to make decisions about their care, treatment or contact with other people. One example is where a person with dementia living in a care home wishes to spend time with his or her partner at the family home. Another example is where a young person wishes to meet people of their own age and make friends. In both cases, one consequence may be that the incapacitated adult engages in sexual relations. I envisage that it might be appropriate in those circumstances for the Court of Protection to endorse a care plan under which care workers facilitate or support such contact and to make a declaration under s.15 of the Mental Capacity Act that the care plan is both lawful and in P’s best interests”
Unfortunately, the Judge does not explain why section 39 does not apply to the cases he referenced. That may be inconsistent with the logic of the rest of the judgments. A care worker who, for example, arranges for a service user with a mental disorder to visit his or her spouse at home knowing that the service user wants the visit so that he or she can engage in consensual sexual activity does an act which “causes” the person with a mental disorder to engage in sexual activity, just as much as if the person with a mental disorder was visiting a sex worker.
The above paragraph from Baker LJ does not confront the problem that this interpretation of the scope of the offence under section 39 of the Sexual Offences Act 2003 criminalises all support for all people with mental disorders which supports their ability to engage in sexual activity. The ECtHR has recognised that the right not have unjustified restrictions put on a person’s sex life is important because our identity as sexual being is a key part of our article 8 rights. The wording of the section 39 offence appears, on its face, to assume that anyone with a mental disorder does not have the capacity for sex. But that is plainly wrong. The vast majority of people with mental disorders have full capacity to decide if they wish to engage in sexual relationships. However, if a person has physical or extensive mental health disabilities, he or she may well need assistance to enable him or her to turn a desire into action by having a sexual life. Hence, a blanket prohibition imposed by legislation which prevents anyone with a mental disorder being supported to have a sexual life could be seen as a gross intrusion into the article 8 rights of a large number of disabled people.
Criminalising any form of support to enable a person with a mental disorder who has capacity to engage in non-exploitative sexual activity is clear discrimination against some persons with mental disorders. Depending on the circumstances, it may well be impossible to justify that intrusion into the private life of a disabled person. However, as it is contained in primary legislation, the criminal offence is free from challenge under the Equality Act 2010, albeit, the offence may not escape sanction if the case ever came before the European Court of Human Rights. That court may well find that the lack of safeguards to protect the article 8 rights of the disabled means the provision contravenes article 8 combined with article 14 ECHR.
However, no one can be charged with a criminal offence in England and Wales unless a charging decision is made by the Crown Prosecution Service. The CPS is a public authority within the meaning of section 6 of the Human Rights Act and thus has a legal duty to act in accordance with convention rights. It follows that a charging decision against a person for a section 39 offence can, at least in theory, be subject to legal challenge in a way that is not possible for the primary statute.
The question that the Court of Appeal was not asked to address (and maybe could not have been asked to address given the hypothetical nature of the case) was whether a decision to charge a care worker with a section 39 criminal offence in these circumstances would have been lawful. It may well be that the court could not address that question because (a) it would all depend on the facts of the individual case and (b) it would be a decision of the CPS and the CPS were not a party before the court.
The difficulties that arise where a person with disabilities needs to ask another for assistance from others to enable him or her to exercise his convention rights but where that assistance, if provided would be a breach of the criminal law, is not a new problem for the law. It has arisen most recently in the case of assisted suicide where a person without the ability to take their own life asks for assistance – the assisted dying cases. Those cases provide a clear pathway that could be followed to solve the problem of the lawfulness of assisting disabled people with capacity to have a sex life.
The CPS may act unlawfully if they seek to use the criminal law to charge someone with a criminal offence for consensually supporting someone to exercise their convention rights if the actions of that person have full consent and are not exploitative. Whilst such conduct may technically amount to a criminal offence applying the wording of a criminal statute, a charging decision would be unlawful because it would be a case of a state body using the law to prosecute someone for supporting another’s convention rights in a consensual and non-exploitative way.
The cases on assisted suicide thus recognise the distinction between the legitimate prosecution of criminal offences and an unlawful decision to prosecute activities that unwittingly stray into the scope of criminality but which are justifiable as they are necessary to allow others to exercise their convention rights: see R (Purdy) v Director of Public Prosecutions  1 AC 345, and Nicklinson & Anor R (on the application of) (Rev 1)  UKSC 38.
The problems caused by this case about of the extent to which care workers can lawfully support people with a mental disorder to protect their convention right to a sexual life have arisen because the litigation has perhaps focused on the wrong target. The real target should have been the Crown Prosecution Service which should have been asked to develop a policy to explain which care workers would and would not be likely to be prosecuted under section 39 where care workers facilitated consensual sexual activity with those with mental disorders who (a) had capacity for sex and (b) took the decision that they would like to exercise that capacity.
If the CPS had been asked to develop a sensible policy which explained what care workers could and could not do without risking prosecution under section 39, care plans could have been written in a way that allowed service users to exercise their Article 8 rights to a sex life and would have protected care workers from the risk of prosecution. Arguably, the CPS would act unlawfully if they failed to do so, precisely for the reasons set out in the assisted dying cases.
It is easy to be wise after the event, but that challenge does not appear to have been the route chosen by those involved in this case. I do not criticise them in the least, because I have made the same mistakes in the past when, at the end of a case, I have that sinking feeling that we set the issues up wrongly. But, even now, asking the CPS to explain in a policy who will and will not be prosecuted seems a far better way to resolve this issue.
The lesson to be learned from this case for public lawyers is to think carefully about what questions we are asking the court to decide. Setting the case up in the right way is essential because, as the Court of Appeal recently affirmed in Bell v Tavistock, courts can and should only answer questions about the legality of the issues that are before them. If the court is asked the wrong questions, the Judges will inevitably come up with the wrong answers.
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