Carers for a man with a form of autism and a genetic disorder can help him pay for sex, a court has ruled.
The landmark decision could have major implications for the lives of many vulnerable and disabled people, although the Government has been given leave to appeal.
Mr Justice Anthony Hayden, vice president of the Court of Protection, ruled that carers should not be prosecuted for helping certain patients with “this most important sphere of human interaction”.
The case revolved around a 27-year-old man, granted anonymity by the courts and referred to as ‘C’, who told his care advocate he wanted to experience sex, reports the Liverpool Echo.
As a toddler, C was diagnosed with the genetic developmental disorder Klinefelter syndrome, which affects social interaction and physical development.
In 1998 he underwent an assessment at Alder Hey Children’s Hospital and was also diagnosed with an autism spectrum condition.
The court heard C enjoyed a “wide range of interests” including playing sport, listening to rap music and visiting museums.
However the judgment states: “In August 2018, C told his Care Act advocate and litigation friend, AB, that though he wanted to have a girlfriend, he considered his prospects of finding one to be very limited.
“He said that he wanted to be able to have sex and wished to know whether he could have contact with a sex worker.
“It was obvious that he had given this issue some thought. AB raised the matter with C’s social worker, and, in due course, these proceedings were commenced, by the Local Authority, to address the lawfulness of such contact.”
The court heard that C displayed some significant behavioural issues in his youth including aggression and “dangerous behaviour”.
He was sectioned and detained in hospital under the Mental Health Act between 2014 and 2017 after his behaviour deteriorated, including making threats of a “sexual nature” although they were never acted upon.
The court heard after being sectioned, C received intensive treatment, including anti-psychotic medication as well as “psychosexual, psychological, occupational and psychiatric therapies”.
After he was discharged from hospital C was placed in supported accommodation with live-in-carers, where the judge accepted he was “happy and well-supported”.
The judge was asked to rule whether any attempt to help C have sex would mean an offence had been committed under the Sexual Offences Act (SOA) 2003.
According to Section 39 of the SOA, an offence punishable by up to 10 years in prison is committed if a care worker causes or incites a person with a mental disorder to engage in sexual activity.
Mr Justice Hayden stated that in the past the law had prevented those with mental health disorders from having sex to “protect them”.
However he ruled that is no longer the case, stating: “Though this was undoubtedly, historically, motivated by a paternalistic desire to protect them, it had the countervailing consequence of dismantling their autonomy and failing to respect their fundamental human rights.
“In this sphere the legislation marks a significant shift. It is no longer the objective of the law to prevent people with mental disorders from having sexual relationships, rather it is to criminalise the exploitation and abuse of such adults by those with whom they are in a relationship of trust.”
The senior judge ruled that preventing C from legally paying for sex was discrimination.
The Mirror’s newsletter brings you the latest news, exciting showbiz and TV stories, sport updates and essential political information.
The newsletter is emailed out first thing every morning, at 12noon and every evening.
Never miss a moment by signing up to our newsletter here.
Judge Hayden was also asked to rule on whether seeking the services of a sex worker was in C’s best interests – but he said that could only be decided once a specific care plan was agreed.
Justice Secretary Robert Buckland instructed the Government’s legal team to appeal the ruling on the basis that it could be seen to be “encouraging prostitution”.
In the UK the act of paying for sex is not a crime, but encouraging or facilitating sex work, for example running a brothel, could result in prosecution.
Mr Justice Hayden wrote that this made the government’s position “logically unsustainable”.
He said: “Whilst it is entirely understandable that he would not wish to be seen to act in a way which might be perceived as encouraging prostitution, the fact remains that the act is legal.
“The Secretary of State may not obstruct those who wish to participate in lawful transactions nor, logically those who wish to help them be they carers or otherwise.”