Court Of Protection Rules That Protected Party May Be Accompanied To Visit A Sex Worker

A recent decision by Mr Justice Hayden has sparked some controversy as he ruled that Carers were permitted to accompany a Protected Party (an individual who lacks the capacity to make certain decisions) to visit a sex worker. This decision attracted significant media attention, for obvious reasons, however, it does have significance when the “best interests” criteria is applied in the Court of Protection.

A Local Authority v C and others

Case summary

The Protected Party was a 27 year old with autism and a genetic disorder. He was physically healthy but lacked the capacity to make decisions relating to his personal health and welfare and relied heavily on full-time carers. He wanted to experience sex and given the nature of his condition, and the restrictions under which he needed to live, he was unlikely to start an intimate relationship with anybody. He, therefore, wanted to visit a sex worker.

The Carers were understandably very concerned at being asked to accompany the Protected Party to meet with a sex worker. In England and Wales, prostitution itself is not a crime but actions that encourage paying for sex do carry criminal consequences including prison sentences for those involved. However, the Protected Party could not make the visits alone and relied on carers for safe transport. The Local Authority, therefore, sought the Court’s assistance. It was determined that it was in the Protected Party’s best interests to be able to experience sex and therefore, the Carers were permitted to accompany him and assist him.

It is not unheard of for the Court to decide whether a protected party has the capacity to engage in sexual relations, as was the case in A v AG and CI (No. 2) (Rev 1) [2021] EWCOP 5. Mr Justice Hayden’s decision went further than this by ordering that the Protected Party could be supported in engaging in sexual relations with sex workers.

This decision risks causing some concern because it could be argued, it opens the door to others to do the same thing. However, precedents in the Court of Protection do not always apply in the same way. The circumstances of every Court of Protection case are specific to the protected party involved. No two individuals have exactly the same needs, personalities, circumstances or health issues.

The Court must apply the best interests criteria in every case, and this is not a one-size-fits-all criteria, nor should it be. There are a multitude of factors that may each carry different weight depending on the circumstances, and the nature of the decision the Court is being asked to make. The facts of this case were unique and whether or not the arrangements proposed for the Protected Party were morally questionable, it is also arguable that to deny him the opportunity to experience sexual relations would seem draconian.

The Court in this case believed it to be in the Protected Party’s best interests to be able to experience sexual relations through whatever means were available to him. This decision may well serve as a useful reminder that the Court of Protection’s role is not to dictate to protected parties but to enable them to make choices that would be available to those with capacity, provided it is safe for them to do so.