The court of appeal has overturned a controversial legal ruling that found it would be lawful for a care worker to enable a young disabled man to pay for time with a sex worker.
A Court of Protection judge concluded in April that a care worker would not be breaching the Sexual Offences Act if they supported the man, known as C, to contact, visit and pay a sex worker.
But three court of appeal justices, including the Lord Chief Justice, Lord Burnett, have unanimously ruled that this was wrong.
Lord Burnett said that if the care worker acted in this way it would place them at risk of breaching section 39 of the Sexual Offences Act 2003.
Section 39 of the act says it is unlawful for a care worker to cause or incite someone they are caring for to engage in sexual activity if that person has a “mental disorder”, with a maximum sentence of 10 years in prison.
C, who is autistic and has learning difficulties, told his advocate in 2018 that although he wanted a girlfriend, he “considered his prospects of finding one to be very limited” and “wanted to be able to have sex and wished to know whether he could have contact with a sex worker”.
The case was brought to the Court of Protection by C’s local authority, after C’s advocate told his social worker about his request.
Lawyers for justice secretary Robert Buckland – since sacked and replaced by Dominic Raab – told the court at the time that the state should not “facilitate, encourage or promote” such actions and that government policy was “to seek to protect those involved in prostitution and, more generally, actively to discourage it”.
But the Court of Protection judge, Mr Justice Hayden, had said the government’s position was “logically unsustainable” because the act of paying for sex was legal and so he “may not obstruct those who wish to participate in lawful transactions nor, logically those who wish to help them”.
Now the court of appeal has over-ruled this.
Lady Justice King said that although the core of the Mental Capacity Act was about “achieving autonomy for an incapacitated adult”, it was “not however the role of the Court of Protection to endorse an act which would be unlawful” and that the motive of the care worker and whether C had consented were both “irrelevant”.
Lord Justice Baker, the third member of the panel of justices who heard the appeal, added: “The Mental Capacity Act and the Court of Protection do not exist in a vacuum.
“They are part of a wider system of law and justice… Where Parliament has expressly decided that certain conduct should be a criminal offence, it is no part of the Court of Protection’s role to declare that it is lawful.”
The government, which had appealed the original ruling, welcomed the court of appeal’s judgement.
A government spokesperson said: “We welcome this judgement which accepts our concerns that the original ruling could have had significant unintended consequences on how we tackle sexual crime.”
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