Does A Patient Have The Capacity To Pay For Sex – A New Consideration For Court Of Protection Deputies?

Being appointed as a professional or lay deputy for a person that lacks capacity to manage their property and financial affairs can be an incredibly challenging and varied role. Many deputies will advise you that it is a balancing act between protecting the patient’s assets and encouraging their own personal autonomy.

The Mental Capacity Act 2005 (MCA) stipulates that deputies have to act in the patient’s best interests and take all practical steps to assist them in making decisions for themselves. It also states that the patient is not to be treated as unable to make a decision merely because he/she makes an unwise decision. For example, the patient may wish to purchase a classic car, despite being unable to drive. Just because the patient may not be able to use the car as others would, does not automatically mean that the patient should not be able to purchase the car. You would need to consider whether the purchase would be in the patient’s best interests and whether their finances can afford it when making the decision.

But what happens when the patient wants to engage in something illegal or something that is perceived to be immoral?

In the recent case of A Local Authority v C & Ors (2021), the Court had to consider the situation of a young disabled man who wished to have contact with a sex worker. The young man had the capacity to engage in sexual relations and to decide to have sex with a sex worker but did not have the capacity to manage his property and financial affairs.

During his judgement, Hayden J considered that it was important to strike “… a balance between protecting those with mental disorders, whilst enabling independent choices”. He also explained that such choices “… may be bad ones as well as good. This is the essence of Autonomy”. This effectively redirects deputies to the core principles of the MCA in that the patient cannot be considered unable to make a decision just because it is unwise.

The first step for deputies faced with such a difficult decision is to arrange a capacity assessment for the patient, to assess whether they do have the capacity to:

1. Engage in sexual relations; and
2. To decide to have contact with a sex worker.

This allows the deputy to consider independent expert advice separate from their own feelings or thoughts which may cloud their judgement. If the patient is considered to have the capacity to engage in sexual relations and to contact a sex worker then the deputy will need to move on to consider the patient’s general circumstances.

Summarised below are a few points which deputies may wish to consider:

• Can the patient afford to visit a sex worker?
• Will the patient need assistance from a care worker to plan and visit a sex worker? If so, a care plan will need to be considered and a risk assessment carried out.
• Has the patient expressed the wish to visit a sex worker consistently?

The deputy may also wish to liaise with other professionals such as the patient’s case manager or social worker alongside his family and friends before making a decision. Essentially, as long as there is ‘clear and cogent evidence’ that the patient has the capacity to engage in sexual relations; to visit a sex worker and that the deputy has fully considered the principles, as set out in the MCA 2005, then the deputy can authorise the release of the funds to the patient.

However, it is important that the deputy undertakes rigorous risk assessments before authorising the decision. Justice Hayden stated that it would never be in the best interests of the patient ‘to put himself or others at risk’.