Today I woke to the news that the Court of Protection has ruled that a care provider supporting a 27-year-old man with ‘mental disabilities’ to pay for sex is legal. The case was brought as UK legislation, whilst not currently outlawing the purchase of sex, does not allow for a third party to facilitate this.
It's important to note that this is not a case about the man – known as C – and his mental capacity to make such a decision. It is about the legal position of the provider of his support in enabling him to carry out his wishes.
And yet, it is impossible to ignore the fact that these particular wishes involve the purchase of – presumably - a woman’s body in order for him to experience sex. Not a relationship, but sex.
This is a day I have been dreading.
I have worked in the social care sector for almost two decades. In that time, I have – like many people who work supporting people with additional needs – had a lot of difficult and challenging conversations with colleagues, service users and families, social workers and advocates alike. There is no training course in the land that can fully prepare you for the myriad of intimate and personal conversations you might find yourself involved in when advocating for the rights of people to lead full and active lives within the care and support framework.
What has always made it (relatively) easy is the ever-evolving guidance and regulations from bodies such as the Care Quality Commission and organisations advocating for the rights of people with disabilities and additional needs that promote choice, independence, and person-centred approaches. The care sector has its issues, for sure, but I have been fortunate enough to work with progressive, client-centred providers who have embraced the ideas of positive risk taking and the recovery model that, at the heart of it all, means support is about helping people do for themselves, and not doing for them.
What this often means in practice is undoing a lot of carers’ perceptions that care and support means wrapping service-users in cotton wool. Sometimes, the hardest part of supporting a person is stepping back and watching them do something that you think they might just regret.
But the test always has to be would I want to be able to make a choice to do this, if it was me?
Our role as support workers and care providers, in my view at least, is enablement. Literally, making things possible. Removing barriers. Supporting the person with what they want. That might mean watching someone spend all their weekly money on a giant teddy bear and a pair of novelty slippers when you know that means they won’t have enough left to go to the cinema that weekend as they’d planned. It’s not your job to stop them. It’s your job to have that conversation. It’s their right to say, you know what, I understand but I just don’t care. That’s an informed choice. It’s tough but it’s important there is space for it. We all have that right. Hey, nice slippers.
The right to relationships including sexual relationships is absolutely part of that person-centred culture. It’s part of CQC’s guidance on Sexuality in Care , which also includes guidance on assessing someone’s mental capacity to consent to sexual relations and what they need to understand in order to give informed consent.
So, I’m not handwringing here because I don’t believe that C has every right to make a decision about wanting to have sex, or that care providers shouldn’t be supporting him to have those conversations or explore those feelings. He has, and they should. In principle, in solely this light, this judgement makes sense.
But. There are two big issues here. One is most definitely in the remit of the Court of Protection, and that is safeguarding. It has been brought up in this case, but in relation to C only. This is understandable, but care providers do not operate in a bubble. Duty of Care and safeguarding is the name of the hill upon which we choose to die. Every time. Every person who has ever stepped out of their house and into the world of supporting people in care has those words tattooed in their eyelids.
We are professionals with a duty to ensure the safety and dignity of others. It doesn’t matter if you work in care of adults, if you are in your course of work and you see a child who you think may be at risk you have a duty to report it. It is a requirement, because we are people trained to spot signs of abuse and to damn well do something about it. How does that work in a brothel, exactly? Are we to turn that off, for the duration? Read this and tell me 'sex work' is not abuse.
We also commonly work supporting people who live in shared accommodation such as supported living or care homes. Therefore, we are acutely aware of how one person’s behaviour can impact on the other people around them, and the complicated and messy relationships that can form and break - as with all humans pushed together under one roof.
There is a point to this. As a woman working in and leading support services of many different kinds, I have had many conversations with colleagues about supporting people that have required a feminist perspective. The news a few years ago, for example, that a care home had brought in pole dancers as entertainment for elderly residents sparked some interesting conversations, and perhaps unsurprisingly many male colleagues felt it was all part of the cultural tapestry and community engagement we should be promoting. The implied endorsement of women as sexual objects was not at the forefront of their minds.
And yet, when service users have been heard making suggestive comments to others, or attempting to kiss or touch other service users (male or female) and even staff, these same colleagues have been quick to act. Disinhibition is common and so we spend a lot of time having conversations with the people we support about consent, respect and people’s boundaries. I mean a LOT of conversations.
So, when, as a provider, we say OK, let’s call that ‘massage parlour’ for you, let’s take you out for a body and a burger afterwards, just what are we saying about autonomy and respect then? How are we promoting healthy relationships when we are dialling a woman or man to submit for cash?
Secondly, there are the practicalities – the mechanics of it all. Do support workers get a say? As a manager, there is no way I’d expect a member of my team to go to one of these places, and there’s no way I’d invite a stranger in and ask staff to hang around to see them out. Support staff are individuals with their own histories and traumas, I don’t feel I would even have the right to sound them out about this. I imagine there might be a few who would grin and volunteer to go along. You know what? I don’t think I want that either.
As a care provider, you get to care plan and risk assess all sorts of fun stuff. This male client likes buying ladies’ underwear for their own personal reasons, pick a kind and open-minded member of staff to support them to go get one with minimum fuss and put it down to experience. We don’t worry about how the girl at the till looked at you, it’s no biggy, but well done.
But this? Do we need to research and see which brothel has the best hygiene rating? Reviews? DBS checks? Accessibility? Disabled parking?
In my years of supporting people experiencing mental health issues, many of the vulnerable women who’ve come through the service have had terrible trauma and many of those women have had drug and alcohol problems and abusive relationships and many have been coerced into prostitution. Vulnerable people aren’t just in care homes or the ones receiving support. Many don’t get that chance.
Here's a question.
Am I to support a service user to see her and pay for sex, whilst also trying to support her to exit and recover? But maybe I haven’t met her yet, maybe that will be next year. Will she engage with support from the support worker who pulled some creased notes out of a money bag and asked for a receipt?
The conversation about supporting service users to pay for sex has come up many times. And when it has, after all the discussion I have ultimately always been able to say that we just can’t, end of story. But no longer.
This is a day I have been dreading.
Here is an extract from the final part of the article from this morning:
‘Lawyers for Justice Secretary Robert Buckland are now appealing the ruling. They had argued that granting permission to the carers to help C would undermine attempts to reduce prostitution by using the state's care services to facilitate it.
But Mr Justice Hayden said the government's objective was "logically unsustainable".
"While it is entirely understandable that [secretary of state] 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."’
As a founder member of the Women’s Equality Party – the only party who have the Nordic Model as policy – I implore WEP to support Justice Secretary Robert Buckland’s appeal and to condemn this ruling. It's only right.
image credit: FETHI BELAIDA/FP/Getty Images