Council right not to facilitate man with learning disabilities to have contact with sex workers, says judge

A Court of Protection judge has backed a local authority’s decision in not seeking to facilitate a man with learning disabilities’ contact with sex workers either in the UK or abroad.

In Lincolnshire County Council v AB [2019] EWCOP 43 the local authority brought proceedings in relation to a 51-year-old man (P) with a diagnosis of moderate learning disabilities, autistic spectrum disorder, harmful use of alcohol and psychosis due to solvent abuse.

Setting out the background to the case, the Court of Protection judge, Mr Justice Keehan, said P had suffered a chaotic childhood. He had difficulties engaging in mainstream education and spent much of his childhood in boarding schools.

P was first detained under the Mental Health Act 1983 in 1985. Thereafter, he was detained on a further 10 occasions between 1985 and 2003, generally as a result of interpersonal conflicts, alcohol abuse or withdrawal hallucinations and seizures.

In October 2003, he was admitted to hospital. Thereafter, he was detained under section 3 of the Mental Health Act and he remained in various psychiatric facilities for the next seven years.

On his discharge in October 2010, P moved to another placement. It was here that he developed a friendship with a local prostitute and thereafter, began his fascination with female sex workers, the judge said.

P has since lived at a number of residential properties and during this time he has been facilitated to access sex workers, and then on occasions, to travel to the Netherlands to have sex with prostitutes there.

In April 2018, Lincolnshire County Council made an application for the court to determine P's capacity and best interests, specifically with regard to contact with sex workers.

A consultant psychiatrist gave evidence to the court that P lacked capacity in all relevant domains, save the capacity to consent to sex.

On the issue of contact, and particularly contact with sex workers, she said as follows:

"P has limited insight into the risks that others might pose to him, including sex workers, and overestimated his ability to keep himself safe. He could not think through the potential consequences of visiting sex workers, including the possibility of financial exploitation or involvement with the criminal justice system. I believe that P failed to both understand the information necessary to make decisions about contact and was unable to weigh up the benefits and risks. It is therefore my opinion, that P lacks capacity in this area and this is as a result of his learning disability and autism."

The consultant psychiatrist concluded, and all parties accepted, that P lacked capacity to:

• conduct these proceedings;
• make decisions about his residence;
• make decisions about his care and treatment;
• manage his property and affairs; and
• make decisions about his contact with others.

Lincolnshire's position was that it did not intend to facilitate P's access to sex workers, whether in this country or abroad, in particular in the Netherlands.

P's litigation friend had visited him on a number of occasions in the recent past to gain his views. P, it was said by his litigation friend, had a high sex drive and found the lack of access to sex workers frustrating. He would wish to continue his past conduct of having and being permitted to have sexual relations with sex workers, here and in the Netherlands.

Mr Justice Keehan said he had to have due regard to P's wishes and desires, but had come to the clear conclusion that the local authority had “adopted the right decision and approach, in not seeking to facilitate his contact with sex workers either here or abroad”.

In coming to that conclusion, the judge said he had regard to s.2 of the Mental Capacity Act 2005.

“There has been no change in the P's circumstances, namely that he lacks capacity….,” he said. “I have also had regard to ss.3 and 4 of the 2005 Act. I note that a care worker who causes or incites sexual activity by an individual for payment, with another person, commits a criminal offence, pursuant to ss. 39,42 and 53A of the Sexual Offences Act 2003.”

The judge said that if care workers who look after and support P, were to facilitate such activity, they would be committing a criminal offence and any declaration by him, would not alleviate their liability to be prosecuted.

“In the Netherlands, of course, prostitution and payment for sexual services are not illegal,” Mr Justice Keehan said. “But in my judgment, there is a very real risk that if a care worker here, supporting P, made arrangements for him to travel to the Netherlands for the purposes of having sexual activity with a woman for payment, they would be at risk of being prosecuted for a breach of the Sexual Offences Act 2003.”

The judge said that accordingly he would not be minded to make any declaration permitting care workers or the local authority to arrange for P to have sexual activity in exchange for payment with a woman, either in this country or in the Netherlands.

Mr Justice Keehan also said it would be wholly contrary to public policy for the Court of Protection and for this local authority, to endorse and sanction P having sexual relations with a woman for payment.

He added that notwithstanding P's clearly expressed wishes and his clear desires to continue to meet prostitutes for sexual activity, he did not consider it is in his best interests to do so.

“I have well in mind, his expressed views that he does not consider that he would otherwise be able to have a relationship with a woman and therefore, he sees no alternative but to seek to use the services of prostitutes,” he said.

In light of the opinion of the consultant psychiatrist, however, it was clear that P did not understand all of the implications of having sexual relations with a woman for payment.

“He puts himself at risk to his health, his welfare and his safety and he puts himself at risk of exploitation: none of which he accepts or understands. In those circumstances, 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 to sanction the same,” the judge said.

On behalf of P, his litigation friend through counsel acknowledged those factors, not least the impact of the criminal law and did not seek to pursue an application for the court to grant such declarations. “In my judgment, that was an entirely right and appropriate decision.”