Readers need to know that in the foreseeable future, paid carers of adults who lack mental capacity could be expected to arrange visits with a sex worker.
Earlier this year, the Court of Protection handed down an alarming ruling that ought to concern Christians. The case shines a spotlight on the tensions between an individual’s human rights, the criminal law and Biblical sexual morality.
The Court of Protection is a specialist court in England and Wales, with the responsibility of safeguarding those who lack mental capacity to make their own decisions (‘protected persons’). A key function is to rule in disputes relating to a protected person.
It’s not unusual for this Court to decide cases involving a protected person’s sex life. Typically, the issue in question concerns their capacity (or lack of) to consent to sexual relations in a given situation, taking into account factors such as their ability to give informed consent and their understanding of what it means to be sexually intimate.
A fundamental argument usually propounded on the individual’s behalf is the right to respect for private and family life under Article 8 of the European Convention of Human Rights. However, human rights enshrined in law are not absolute.
The protected person in this case was a 27-year-old man with a genetic disorder, developmental problems and autism. In recent years, his mental health deteriorated and he was sectioned. Following various treatment and therapies, he was released to a small home with carers. A care package needed to be implemented which required the deprivation of his liberty.
The man expressed the desire to have sex (even though he had no girlfriend and there were limited prospects of finding one). He wished to know if he could see a sex worker.
However, a care worker who ‘causes or incites’ sexual activity commits a criminal offence under the Sexual Offences Act 2003. The Local Authority asked the Court of Protection to determine whether or not a care plan allowing facilitation of sex worker visits would fall foul of the criminal law.
If it was allowed, Christian carers could be expected to make the necessary practical arrangements for the person in their care to see a sex worker. Refusing to do so because of their religious convictions could then lead to them losing their jobs and possible legal action.
The Court of Protection ruled that no offence would be committed by a carer making such arrangements where the individual has capacity to consent to sexual relations and to choose to have contact with a sex worker – but not to actually arrange it. A key factor for the judge was the fact that prostitution and sex work are legal.
Thankfully, the Court of Appeal has overturned that decision. It ruled that the words ‘causes or incites’ in the 2003 Act carry their ordinary meaning. There would, therefore, be a risk that the carers (and the man himself) might commit an offence. The appeal judges said it was not for the courts to endorse an unlawful act.
But what of the human rights argument? The judges observed that the European Court of Human Rights has never recognised the right to purchase a prostitute’s services or to be provided with such services by the state. The 2003 Act did not interfere with his human rights.
What should concern Christians is the courts’ willingness to interpret legislation in an increasingly liberal way. The Court of Protection judge unashamedly stated that the 2003 Act is ‘progressive legislation’ which ‘has been careful … to avoid constricting the life opportunities of those with learning disabilities or mental disorders’ and protect them without resorting to paternalism.
According to The King’s Fund, there are 952,000 care workers in full-time jobs in England alone. Many of them are Christians. The time when carers could be expected by their employers to make arrangements that compromise their beliefs may not be far away.
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