Particularly Sensitive Issues Around Mental Capacity

• Published date: 17 March 2022
• Subject Matter: Government, Public Sector, Family and Matrimonial, Family Law, Human Rights
• Law Firm: Osbornes Law
• Author: Ms 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...