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Consent to sexual activity and the Court of Protection

Date:22 OCT 2019

For many of our disabled or vulnerable clients, engaging in sexual activity after injury can be a challenge.  Some of our clients have lost confidence or do not feel able to actively engage in a social scene that provides the same level of opportunity for sexual encounters.  Although not widely spoken about, I know of many individuals and their families who routinely explore unorthodox avenues to meet sexual partners following life-changing events.

I read the judgement of Lincolnshire County Council [2019] EWCOP 43 with interest.  In that case, the Court of Protection was asked to determine P’s capacity and best interests with regards to contact with sex workers both in the UK and the Netherlands.  In that case, P had been noted to have been inappropriately sexualised from an early age.  Having been detained under the Mental Health Act throughout various periods in his life, P was eventually discharged from hospitalisation and moved into a supported placement.  It was stated in the Court papers that P developed a fascination with female sex workers and had lived in numerous supported living placements where access to sex workers had historically been facilitated by various members of staff.

The local authority managing P’s most recent placement sought the Court’s determination on the fact that they no longer intended to facilitate P’s access to sex workers both in the UK and abroad.  P expressed very clear wishes on this issue to the Court (through his litigation friend) indicating that he had a high sex drive and found the lack of access to sex workers frustrating.

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The Court upheld the local authority’s decision to cease facilitating P’s contact with sex workers.  Whilst P was determined to be able to consent to the act of sex; the Court found that P lacked the ability to understand all the implications of having sexual relations with a woman in exchange for payment. The Court cited various public policy reasons in support of its decision and its inability to sanction the provision of such access; including the impact this would have on the current criminal law sanctions associated with prostitution.

Mr Justice Keehan stated that P was putting himself at risk 'health…welfare…safety…exploitation: none of which he accepts or understand….I am entirely satisfied that it is wholly contrary to his best interests for him to have sexual relations with prostitutes. Still less is it appropriate for this court or sanction the same'. 

The Sexual Offences Act 2003 provides guidance to care workers looking after persons with a mental disorder. Care workers are defined as those involved in caring for another person, or those accommodated and cared for in a care home, community home, voluntary home or children’s home.  A care worker who causes or incites sexual activity by an individual for payment with another person commits a criminal offence under the 2003 Act.  It would therefore have been impossible for the Court of Protection to sanction the arrangements taking place in P’s supported living arrangement.

There are some organisations that argue that it is contrary to a disabled person’s human rights and the Equality Act 2010 to deny a disabled individual access to sex within their home environment.  Some feel that the support, fulfilment and sexual gratification for a disabled individual should extend to a care-home setting where an individual has no other accommodation and support option.  It is a difficult issue with extremely sensitive practical and legal considerations.

The law does permit the preservation of pre-existing sexual relationships that might have pre-dated an injury that affects mental capacity.  Individuals are unlikely to be committing an unlawful act if they were married at the time of a life-changing injury and where they wish for their sexual relationship to continue within the marriage, post mental injury.  There is also an exception for relationships evidenced as pre-existing the mental deterioration or incapacity.  These situations are of course entirely different from circumstances where sex is sought out after injury in circumstances where an individual might feel that their only way of engaging in a relationship would be to engage in the seeking of paid services. This is an extremely complex area of the law and specialist advice should be sought if in doubt.  What is clear is that care providers will need to exercise caution as will Property and Affairs Deputies, who might be approached for the payment of sexual services (whether directly or indirectly) on behalf of their clients.


This article was first published on the Anthony Gold Solicitors website, and is reproduced with permission.