Particularly sensitive issues around mental capacity

18 Nov 2021 | Suzanna Baker

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.  

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Suzanna Baker Senior Associate
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