Kirsty Brimelow QC provides expert Opinion to Court of Protection
Kirsty Brimelow QC was instructed by all parties to provide an expert Opinion on the relevant provisions of the Sexual Offences Act 2003 and their interaction with Court of Protection proceedings in the widely reported case of L. The Vice-President of the Court of Protection, Hayden J described the analysis of Ms. Brimelow QC as “constructive and erudite”.
The landmark judgment makes it clear that the natural meaning of the criminal offence of causing or inciting sexual activity does not apply to care workers who are assisting a person with a mental disorder to visit a sex worker. Hayden J did not see the need to apply a meaning to the Sexual Offences Act 2003 section 39 to comply with the European Convention on Human Rights as he considered the section clear under the usual principles of statutory construction. He took into account that the purpose of SOA 2003 was to bring an end to the discrimination against sexual autonomy of those with mental health disorders and strike a balance between protection and enabling independent choices. In his judgment Hayden J said the following:
“…..the duality of approach in the SOA, in effect striking a balance between protecting those with mental disorders whilst enabling independent choices, in this most important sphere of human interaction. It follows, of course, that such choices are not confined to those which might be characterised as good or virtuous but extend to those which may be regarded, by some, as morally distasteful or dubious. Protection from discrimination facilitates informed decision taking. Those decisions may be bad ones as well as good. This is the essence of autonomy. “