Care Workers

October 25th, 2021 by James Goudie KC

The Court of Appeal in SoS for Justice v A Local Authority (2021) EWCA Civ 1527 addresses the question whether care workers are in peril of committing a criminal offence under Section 39 of the Sexual Offences Act 2003 (care workers: causing or inciting sexual activity) when they make the practical arrangements for a 27 year old man to visit a sex worker in circumstances where he has capacity within the meaning of the Mental Capacity Act 2005 to consent to sexual relations and to decide to have contact with a sex worker but not make the arrangements himself. The answer given is that the care workers risk committing the offence.

The Court of Appeal also says that it’s interpretation of Section 39 does not infringe the ECHR. The Court of Protection cannot endorse an act that would be unlawful. The motive of the care workers is irrelevant.

The situation is entirely different from situations such as a care worker arranging private time for a long married couple when it is known that this will likely include sexual activity.

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