By Astral Heaven, 14th December 2020
In August 2018, a man in his 20s – the court asks us to refer to him as “Z” – told his Care Act advocate that he would like to have contact with a sex worker. She raised this with his social worker and legal proceedings were started on 26 February 2019 by the local authority. The question of the lawfulness of that proposed contact has been an issue in the case from the outset, and was the key issue addressed at this hearing.
I observed this hearing (Case No: 1252118, Re: Z), before Mr Justice Hayden, Vice President of the Court of Protection on 2nd and 3rd December 2020. He did not make a judgment at the time but said he would do so before Christmas.
Z has diagnoses of autism, mild learning disability, XXY syndrome and delusional disorder. He is living in a supported living placement with a local authority and CCG funded care plan in place comprised of 24 hour 1:1 – and at times 2:1 – support. As the measures within his care plan amount to a deprivation of liberty, there is a community deprivation of liberty authorisation in place.
Since August 2018 when Z first raised the issue, a significant amount of work has been completed to look into whether it would be possible to support him in contact with a sex worker. Initially a court application was made by the local authority for a declaration that Z did not have capacity to make to make his own decisions about contact with a sex worker and that it was not in his best interests that he should do so, but their position has since changed.
The current position is that Z has capacity to engage in sexual relations, and capacity to make the decision to have contact with sex workers: this was established through assessment by an independent consultant psychiatrist (Dr Christopher Ince). However, Z was judged to lack capacity to make decisions as to residence, care and support, financial affairs, use of the internet and social media and to conduct these legal proceedings.
Z would not be able to make arrangements to visit a sex worker, or pay her, without the support of his team. The Local Authority and CCG have agreed that implementation of a carefully thought through sexual contact care plan to help Z access a sex worker would be in his best interests and they were prepared to commission a care plan. However, they would do this only if the Court would make a declaration that the care plan would be lawful and that no offense would be committed by the care workers in light of s. 39 Sexual Offences Act 2003, which criminalises actions that intentionally ‘cause or incite’ sexual activity involving a person who has a mental disorder, by a person involved in that person’s care.
It is not unlawful to pay for sex. The question is whether supporting Z (who has a ‘mental disorder’) to have sex with a sex worker would be unlawful, on the grounds that s39 makes it an offence for third parties who are carers to be involved in making such arrangements.
These arrangements could potentially involve:
(a) assisting Z in selecting a particular sex worker from those available (by presenting him with a choice in a format suitable for him);
(b) determining the payment requiring and accompanying him to the cashpoint to help him obtain the relevant sum in cash, which Z would then keep in an envelope ready to make the payment himself when required;
(c) making sure Z’s co-tenant is out of the house while Z spends time with the sex worker;
(d) remaining in Z’s house in the upstairs bedroom; and
(e) working with Z to prepare a plan for how the activity should go in advance.
Setting the scene
For me, the opportunity offered by remote hearings to observe cases brought before senior judges such as Mr Justice Hayden, has presented fantastic learning during this pandemic. It’s meant it’s been possible to observe cases involving serious medical treatment decisions and cases such as this, involving complex ethical dilemmas. In previous hearings I’ve observed, the focus has been purely on the Mental Capacity Act 2005, so it was interesting in this case to be able to observe the Mental Capacity Act’s complex interaction within the wider legal system – in this case the Sexual Offences Act 2003.
Right at the outset of the hearing there was an issue about the transparency order. At an earlier hearing regarding this case in November 2019, a journalist (Brian Farmer) had made a request for the transparency order to permit naming the Local Authority, and this had been granted. When reports of the case were published there were unpleasant comments from members of the public. Victoria Butler Cole QC queried whether there should be a temporary ban on reporting until the judgement is published. Mr Justice Hayden advised that the hearing is ‘fraught with problems about reporting and is no doubt going to excite ignorant and vituperative remarks as well as reflective intellectually curious ones”, but pointed out that the “genie is out of the box”. He said: “These issues are difficult and they benefit from being publicly openly debated in full disinfectant sunlight – or whatever the phrase is – of open court” (This is a reference to the US Supreme Court justice, Louis Brandeis’ observation that ‘sunlight is the best disinfectant’).
Mr Justice Hayden said that he had met with Z and had come away with the feeling that Z might be contemplating only one episode of involvement with a sex worker. It was an experience he would like to have, but he may just have a cup of tea and play cards with her, and may decide at the final moment that he did not want to have a sexual encounter at all. He said it seemed that there was a lot of pressure on Z and that “a first sexual encounter usually has some degree of spontaneity about it and is rarely subject to the scrutiny of a judge and leading counsel”.
At the start of the hearing Mr Justice Hayden requested an outline of the case be provided for the benefit of public observers and also agreed that the skeleton arguments (with some of the detail removed), could be released to us ‘to help with general understanding and accurate reporting’. This significantly helped in my being able to properly understand and follow the case (within the confines of my ability!). At several points, Mr Justice Hayden asked the barristers to go back over some of their arguments so he could fully understand the important points being made and I also found this helpful in aiding me to follow the proceedings.
As it’s unlikely to be a practical option for Z to access a sex worker until Summer 2021 due to the pandemic, Mr Justice Hayden wished to draw back from scrutinising a best interest care plan that would not kick in for 6 months. Instead, the central focus at this hearing was the issue of whether or not support could be provided to Z to enable him to access a sex worker, without breach of s. 39 of the Sexual Offences Act 2003.
The argument that it would be lawful to support Z to access a sex worker
On behalf of Z, Victoria Butler Cole QC argued in court that the acts to be carried out as part of the proposed care plan do not involve any intentional ‘causing or inciting’ of Z to have sex with a sex worker. She said that it would be wrong to interpret the Act in that way because its purpose was to criminalise the exploitation and abuse of people with mental disorders by those with a relationship of trust. It was not the purpose of the Act to prevent people with mental disorders from having sex.
She also argued that the actions of the care workers would not “intentionally cause” Z to have sex because Z is making a voluntary and informed choice to engage in sexual relations, and simply requires the assistance of a third party to put this into practice. The ‘narrow’ interpretation of s.39 that would criminalise care workers assisting Z in this scenario would also, she argued, criminalise acts such as driving a person with a ‘mental disorder’ from their home to their partner’s home (knowing that the couple were likely to have sex) and actions such as providing a private area in a care home for someone with a ‘mental disorder’ to have private time with their partner.
Victoria Butler Cole QC further argued that if the court were not to accept this reading of the Sexual Offences Act (two criminal lawyers, Nina Grahame QC and Kirsty Brimelow QC had submitted contrary opinions), then the judge must use his interpretive powers under s.3 Human Rights Act 1998 to read and give effect to the legislation in a way which is compatible with the European Convention on Human Rights.
If the hypothetical care plan cannot be implemented without breaching the Sexual Offences Act 2003, and cannot be read in a way that is compatible with the Human Rights Act, then, she said, the court should make a declaration of incompatibility. Both Article 8 (Respect for private and family life) and Article 14 (Protection from discrimination in respect of these rights and freedoms) are engaged.
In Z’s case, the plan was to use a charity called the TLC Trust. The charity describes itself as
“a committed and passionate non-profit organisation who are striving to promote sexual services for disabled people in a safe, fun and responsible way. Having access to intimate experiences is a basic human right.”
The philosophical basis of TLC is that people with disabilities should be able to have the same access to sex as non-disabled people. Victoria Butler Cole QC explained that whilst other charities work to dispel stigma and discrimination, TLC takes this one step further and finds sex workers willing to work with those with disabilities.
The existence of TLC shows that the need for transactional sex services for disabled people is not uncommon, particularly for younger men with brain injuries. An informal survey of members of the Professional Deputies Forum had been submitted as a witness statement in order to assist the court in understanding what happens on the ground. The anonymous feedback from members of this organisation (composed of solicitors who are professional deputies – the organisation represents about 50% of all professional deputies) shows that they have a wide range of experience involving clients seeking sexual services, and that professional deputies have paid for sex workers for their clients and put the accounts in to the Office of the Public Guardian under the ‘leisure’ or ‘entertainment’ budget.
The court heard that such services have proved beneficial for people, especially those with brain injuries, with positive impact on previously difficult-to manage behaviours. Victoria Butler Cole explained that professional deputies need to know if this is not allowed under s39. If it is not, then (as one professional deputy pointed out), this leaves disabled people trying to access these services for themselves, which in practice will place them more at risk (e.g. “of unwanted pregnancy and falling in love with unscrupulous characters”, to quote a deputy from the survey). At this point in the argument, Mr Justice Hayden seemed to accept that a narrow construction of s39 might render those it’s intended to protect more vulnerable. He also noted that no one was asking him to intervene because Z is believed to be at risk, and that “the risk is from the prohibition, rather than the facilitation of these arrangements”.
Counsel for the Local Authority, Neil Allen, also took the position that it would be lawful to provide the kind of support for Z envisaged in the hypothetical care plan. He advised there is a fundamental distinction between providing someone with opportunity to exercise their own judgment and “causing” them to do something. It would be Z’s capacitous decision that provides authority for the sexual activity to take place. The care plan provides opportunity for Z to be in the presence of a sex worker, but whether a sex act takes place will depend on Z’s own decision. The care workers will be providing the support necessary for Z to implement his own decisions.
Counsel for the CCG, Sam Karim QC, adopted a neutral position. He said: “As the funding body and responsible commissioner, the CCG plainly doesn’t want to commission a package that falls foul of the Sexual Offences Act or puts individual carers at risk of prosecution. It takes the view that it would commission the care plan as outlined, subject to Your Lordship making a declaration or a decision that it was lawful”.
The argument that it would NOT be lawful to support Z in accessing a sex worker
The Secretary of State for Justice, represented by Fiona Paterson, put the case that if carers were to provide the kind of support envisaged in the hypothetical care plan for Z, they would be “causing” Z to have sex according to a broad interpretation of s. 39 of the Sexual Offences Act, as advised by Ms Brimelow QC and Ms Graham QC.
She argued if the law were to evolve to permit exceptions to s. 39 that rendered it lawful for a carer to facilitate access to a sex worker for someone with a ‘mental disability’, that would be a matter for Parliament, as opposed to the Courts.
Attempting a Convention-compliant reading in the manner suggested by Victoria Butler Cole would represent a significant change in public policy – which again properly falls to Parliament rather than the Courts.
Finally, if the judge were to find that s39 of the Sexual Offences Act is incompatible with Article 8 of the European Convention on Human Rights, then (she submitted) any infringement of Z’s Article 8 rights is in pursuance of an objective and legitimate aim on the part of the government – that aim being to protect disabled people from exploitation and abuse. Given the wide margin of appreciation afforded by the European Court of Human Rights, the Secretary of State for Justice further submitted that a declaration would serve no purpose.
Fiona Paterson concluded, on behalf of the Secretary of State for Justice, that the application that the proposed care plan was lawful (or of incompatibility) should be dismissed; the granting of the declaration would not afford immunity from prosecution and would be contrary to public policy.
My experience of this hearing
As Best Interest Assessors for the Deprivation of Liberty Safeguards (DoLS) we are often faced with complex ethical dilemmas when trying to balance someone’s right to liberty and autonomy with their right to safety and protection when they are unable to make decisions to protect themselves. We play a critical independent role, so being able to apply legal frameworks, having a confident understanding of the law and being aware of and able to incorporate legal judgements, is important to inform our decision-making. That’s why it’s so beneficial to be able to attend these Court of Protection hearings, both in terms of developing a better understanding of the law and for the opportunity to observe how the barristers and judges approach the complex legal and ethical dilemmas they are faced with.
Critical reflection of professional experience is a central element of professional practice, so it was interesting to observe Mr Justice Hayden reflect upon his own learning from this case; about how this case provided a window on sex work he had never encountered before and one which caused him to revaluate his perceptions of sex work. He recalled a time where as a young barrister, street prostitutes, recognised as exploited women with no real life choices, were prosecuted and fined and how this might be the public’s perception of sex workers. This type of organisation (TLC), however, offers “a different window on sex work and requires to be identified as such”. Mr Justice Hayden talked of sensibly having to acknowledge that these are women exercising their own autonomy working within this discrete sphere and asked “would it be wrong in 2020 to assume a sex worker in this sphere is a victim, automatically, because of the career she pursues? Thirty years ago, I might have made that assumption but I don’t think it’s right to do so now”.
There were so many elements of interest for me within this hearing, but since keeping up to date with relevant case law is an important part of my role, it was great to observe how a senior judge and such expert barristers drew upon previous judgments and in this hearing so many of these were considered.
One of the many judgments referred to was A Local Authority v JB  EWCA Civ 735, which has changed the way capacity is assessed; from assessing capacity to ‘consent to sexual relations’ we now assess capacity to ‘engage in sexual relations’ and include the fact the other person must have the capacity to consent to the sexual activity and must consent before and throughout, as part of the ‘relevant information’ the person needs to be able to understand, retain, use and weigh. As 39 Essex Chambers note in their case summary June 2020 https://www.39essex.com/cop_cases/a-local-authority-v-jb-2, this is a judgement that responds to the fact ‘individuals with impaired decision-making capacity are not always (as some of the previous cases could be read as suggesting) purely passive recipients of sexual activity initiated by others, but can also be sexual beings wishing to express themselves by initiating sexual activity’.
Mr Justice Hayden also talked about his judgement in LB Tower Hamlets v NB & AU  EWCOP 27 reminding us there is not a one-size-fits-all test when assessing capacity to engage in a sexual relationship. It is ‘the bespoke situation in which we evaluate capacity rather than a more general one’. Reference was also made several times by Mr Justice Hayden to Mr Justice Mumby’s famous statement ‘What good is it making someone safer if it merely makes them miserable?’ (in Re MM (an adult)  EWHC 2003 Fam)
I absolutely love watching Mr Justice Hayden. He has such wisdom, warmth and humility. Speaking on ‘Becoming a judge’ at Equality in Justice Day in October 2008, Lord Judge the former Lord Chief Justice stated:
‘Many qualities are required of a judge… He or she must of course know the law, and know how to apply it, but the judge must also be wise to the ways of the world. The judge must be able to make a decision. […] Judges must have moral courage – it is a very important judicial attribute – to make decisions that will be unpopular with the politicians or the media and the public, and indeed perhaps most importantly of all, to defend the right to equal treatment before the law of those who are unpopular at any given time.’
This seems to describe Mr Justice Hayden exactly! One of the stand-out statements for me on the second day of this hearing was his reply to Fiona Paterson when she urged the court to proceed with caution: “You’ve urged caution on everything and sometimes one has to be bold”.
It was also lovely to hear Mr Justice Hayden’s appreciation of all parties for what he noted as the care, depth and quality of the considerations that had been given to this case during “the course of such a challenging year”. He closed the hearing by saying he wanted to take the opportunity to say how on a number of occasions during the case he had ‘marvelled’ at the work they had been able to do and the circumstances under which they had done it. He remarked that he had heard advocacy from every party of the highest quality, and had received very high quality written submissions. He said he wanted to pay a heartfelt tribute to all of them.
You cannot underestimate the additional depth of learning you acquire through observing hearings in the Court of Protection. For me, it provides that extra element of insight and understanding. Now, when I’m reading the 39 Essex Chambers monthly newsletter, and Court of Protection judgements on BAILLI, it feels different, I feel more connected to what I’m reading and I find it helps me when I’m relaying legal information to others, supporting my team to apply outcomes of the judgments to the people we are working with and learning how to improve our practice.
I am really looking forward to reading this judgment when it is published. It’s a really important area fraught with undeniably difficult moral issues, which will only benefit from open discussion and will be of direct relevance to all who work in adult social care.
Astral Heaven is a Local Authority AMHP and DoLS Manager and she has contributed to a number of previous blog posts for the Open Justice Court of Protection Project (e.g. here). She tweets @AstiHeaven.