Causing or inciting sexual activity with persons who have a mental disorder

Parliament enacted the Sexual Offences Act 2003, which has been in force since April 2004, with the broad aim of modernising the law and enhancing protection for children and vulnerable adults from unlawful sexual conduct (Home Office, 2002). The 2003 Act has been praised for creating a range of specific offences that may be committed against children and vulnerable adults and for providing continuing protection from further sexual abuse by strengthening the notification requirements for sex offenders, managing high-risk offenders in the community through multi-agency public protection panels and creating a new civil prevention order.

A key weakness of the Sexual Offences Act 2003 has been the difficulty in interpreting the clauses that make up the offences, creating uncertainty when applying the law in practice.

The 2003 Act had attempted to provide some clarity by defining two key terms: ‘consent’ and ‘sexual’ but these have been described as complex and ambiguous and difficult to interpret in practice.

The Sexual Offences Act 2003, section 74 states that:

‘For the purposes of this Part, a person consents if he agrees by choice, and has the freedom and capacity to make that choice.’

Section 78 of the Act holds that ‘sexual’ means:

‘Penetration, touching or any other activity is sexual if a reasonable person would consider that: (a) whatever its circumstances or any person's purpose in relation to it, it is because of its nature sexual, or (b) because of its nature it may be sexual and because of its circumstances or the purpose of any person in relation to it (or both) it is sexual.’

Sexual offences relating to care workers

The 2003 Act does not always require the absence of consent to be a constituent element that makes up an offence. It also does not attempt to define other terms used in its provisions, making their interpretation even more difficult. Such ambiguity can raise practical dilemmas for those working in mental health and learning disability as the Sexual Offences Act 2003 created specific care worker offences, including offences that can be categorised as breach of a relationship of care and that can occur even where the person has capacity and can consent to sexual activity (see Table 1).

These offences are designed to protect those with a learning disability or mental disorder who have capacity to consent but who are vulnerable to exploitation and may agree to sexual activity because they are familiar with or dependent on their carer.

The 2003 Act defines a care worker very broadly and includes health and social care workers who provide support in care homes, hospitals, the person's own home and day centres. It also includes a wide range of people who support people with a learning disability or mental disorder such as support workers, therapists, receptionists and complementary therapists.

A health worker employed at a psychiatric hospital admitted engaging in sexual activity with a person with a mental disorder when he had an affair with a woman who had been a patient at the hospital where he worked. He was jailed for 2 years and banned from working with vulnerable adults for 10 years (Devine, 2013)

Cause or incite sexual activity

The Court of Appeal has recently been asked to consider how section 39 of the Sexual Offences Act 2003 should be interpreted by care workers (Secretary of State for Justice v A Local Authority & Others [2021]).

Section 39 of the 2003 Act makes it an offence for a care worker to intentionally cause or incite another person to engage in an activity, where:

• The activity is sexual, and
• The other person has a mental disorder, and the care worker knows or could reasonably be expected to know that the person has a mental disorder, and
• The care worker is involved in the person's care.

In A local authority v C [2021] the Court of Protection considered section 39 of the Sexual Offences Act 2003 in the context of the wishes of a 27-year-old man who wanted to engage in sexual relations, and to have contact with a sex worker.

The man had been diagnosed with a learning disability and he needed significant assistance with independent living and was likely to continue to do so. The package of support he received required the deprivation of his liberty, which the Court of Protection had authorised.

It was agreed that the man had the capacity both to engage in sexual relations and to decide to have contact with a sex worker but that he could not make the arrangements himself. The issues were: whether a care plan to facilitate the man's contact with a sex worker could be implemented without the commission of an offence under the Sexual Offences Act 2003.

The Court of Protection held that while section 39 of the 2003 Act was motivated by a desire to protect vulnerable people, it had the consequence of dismantling that person's autonomy and failed to respect the person's fundamental human rights.

The Court of Protection further held that the clear intention of Parliament was to criminalise only those in a position of authority and trust whose actions were calculated to repress the autonomy of those with a mental disorder in the sphere of sexual relations. In this man's case there was clear and cogent evidence that he had the capacity to engage in sexual relations and to decide to have contact with a sex worker. He lacked capacity to make the practical arrangements involved in identifying a suitable and safe sex worker and was unable to negotiate the financial transaction. Such assistance in the view of the Court of Protection would not cause the person to engage in sexual activity and so it would not be unlawful for his care workers to assist him to make such arrangements.

The case was taken to appeal by the Secretary of State for Justice who challenged the interpretation of the term ‘causing a person to engage in sexual activity’ when they had a mental disorder.

The Court of Appeal held that the word ‘causes’ in section 39 of the 2003 Act was to be given its ordinary meaning and so the Court of Protection's interpretation, which applied restrictions to that meaning, was incorrect. In the Court of Appeal's judgment, the test for causation was whether the actions of the care worker created the circumstances in which something might happen, that is, did the care worker cause it to happen? Care workers would therefore be causing sexual activity if they made the arrangements for the person's contact with a sex worker and so ran the risk of committing an offence under section 39 of the Sexual Offences Act 2003 (Secretary of State for Justice v A Local Authority & Others [2021]). The offence would arise even if the protected person had capacity and had consented.

Conclusion

The Court of Appeal's ruling in Secretary of State for Justice v A Local Authority & Others [2021] highlights the difficulty nurses and other care workers have in interpreting the provisions of the Sexual Offences Act 2003 in the case of a person with a mental disorder who expresses a wish to engage in sexual activity and has capacity to consent to such activity. The involvement of a care worker, which includes nurses, in assisting the person to fulfil their wish to engage in sexual activity places the nurse in peril of committing an offence contrary to section 39 of the Sexual Offences Act 2003.

KEY POINTS

• Parliament enacted the Sexual Offences Act 2003 with the broad aim of enhancing protection for children and vulnerable adults from unlawful sexual conduct
• A key weakness of the Sexual Offences Act 2003 has been the difficulty in interpreting its clauses
• It is an offence for a care worker to intentionally cause or incite a person with a mental disorder to engage in sexual activity
• The Court of Appeal has recently ruled that this includes making arrangements for a person with a mental disorder who has capacity to engage in sexual activity with a sex worker