Care workers who support vulnerable clients to access sex workers may be committing an offence: Secretary of State for Justice v A Local Authority & Ors  EWCA Civ 1527
The first instance judgment
This original case was heard by Mr Justice Hayden in the Court of Protection in early December 2020 with his judgment being published in April 2021 – A Local Authority v C & Ors  EWCOP 25 (26 April 2021). The case related to ‘C’ who had a diagnosis of autism, mild learning disability, Klinefelter syndrome (also known as XXY syndrome), and delusional disorder. C was living in a supported living placement with a package of care consisting of 1:1 support 24 hours a day, with 2:1 support on occasion. C told his advocate that he would like to have contact with a sex worker who informed C’s social worker, following which Court of Protection proceedings were started by the local authority. The local authority had assessed C as lacking capacity to make decisions about whether to have contact with a sex worker. The local authority also considered it was not in C’s best interests to have contact with a sex worker.
As a very brief explanation, ‘capacity’ refers to a person’s mental ability to make their own decisions. If a person is deemed to ‘lack capacity’, it means that they have been assessed as not being able to make a particular decision for themselves. Capacity is ‘issue specific’ (i.e. decision specific) meaning a person needs to be assessed in relation to the decision that needs to be made, and an assumption cannot be made as to their capacity to make that specific decision based on their capacity to make other decisions. As such, a person could have capacity to make all decisions they need to make, or may have capacity to make some decisions lack capacity to make other decisions, or may lack capacity to make all decisions. When a person is considered to lack capacity to make a particular decision, the Mental Capacity Act 2005 (which is the law that applies to people over 16 years old who lack capacity) says that any decision made on that person’s behalf must be made in their best interests. If there is not an agreement as to what is in the person’s best interests, Court of Protection proceedings need to be started so that a judge can consider the issue and decide.
C was assessed by an independent consultant psychiatrist who assessed C as having capacity to engage in sexual relations and make decisions about whether to have contact with sex workers. However, C was also assessed by the independent consultant psychiatrist as lacking capacity to make decisions about his residence, his care and support, his financial affairs, using the internet and social media, and conducting the Court of Protection proceedings. As such, it was considered that, whilst C had capacity to make decisions about contact with a sex worker, he would not be able to make the necessary arrangements, without the support of his care team, to visit a sex worker and/or pay a sex worker.
Section 39 of the Sexual Offences Act 2003 – Sexual Offences Act 2003 says that:
“ (1) A person (A) commits an offence if –
For information, section 42 then goes on to provide an interpretation of when a person would be considered to be involved in another’s care.
Mr Justice Hayden decided that, because C had capacity to make decisions about engaging in sexual relations and whether to have contact with a sex worker, a care worker who supported him to make the necessary arrangements would not be committing an offence under section 39 of the Sexual Offences Act 2003.
The appeal decision in Secretary of State for Justice v A Local Authority & Ors  EWCA Civ 1527
The decision of Mr Justice Hayden was appealed by the Secretary of State – The Secretary of State for Justice v A Local Authority & Ors  EWCA Civ 1527 (22 October 2021). At the end of July 2021, the appeal was heard, with the judgment being published last week. The appeal was successful, with the Court of Appeal overturning the decision of Mr Justice Hayden and deciding that care workers would risk committing an offence under section 39 of the Sexual Offences Act 2003 if they were to support C in making arrangements to have contact with a sex worker.