SEXUAL INTERCOURSE WITH PATIENTS (Hansard, 18 October 1982)

§ Mr. Terry Davis
I beg to move, That the clause be read a Second time.
The Special Standing Committee received written evidence from the Royal College of Nursing referring to sections 127 and 128 of the Mental Health Act 1959. Those sections refer, in turn, to the Sexual Offences Act 1956, and the Royal College of Nursing urged that the Committee should include provisions in the Bill to repeal sections 127 and 128 of the 1959 Act.
There was no further reference to the issue in Committee. The Royal College has, therefore, written to all members of the Committee to draw our attention to the matter and especially to section 128. As it points out, section 128 makes it an offence for a male officer to have unlawful sexual intercourse with a female patient if he knows, or has reason to suspect, that she is a mentally disordered patient.
Apparently, the subject is being considered by the Criminal Law Revision Committee, but the Royal College points out that, although that may justify the lack of an amendment to abolish the offence, it does not justify discrimination against male officers. I agree. I wish to make it clear that I am not suggesting any change in the law that makes it an offence for a nurse or any other employee to engage in sexual intercourse with a patient.
I am sure that the House will want to wait for the report of the Criminal Law Revision Committee before reaching any firm opinions. However, I agree with the Royal College of Nursing that it is indefensible in 1982 to discriminate between men and women in this way. I suspect that the reason for this apparent discrimination against men lies in an old-fashioned attitude to women. It is an offence for a male officer to have unlawful sexual intercourse with a female patient, but it is not an offence for a female officer to have unlawful sexual intercourse with a male patient because it is assumed that the man is dominant in such matters. In my view, the House should reject such attitudes and assumptions. That is why I have tabled this new clause. I realise that there is a risk of some hilarity on the subject from some Conservative Members, but I assure them that this is an important issue.
Before the Minister replies, I should add that I realise that the new clause may contain some drafting errors. In particular, the references to the National Health Service Act 1946 and the National Assistance Act 1948 should be references to other more recent Acts of Parliament. Nevertheless, that does not affect the central issue of whether it is right to penalise a male officer and not a female officer. If it is considered right, I submit that we need to consider the reason for such discrimination.

§ Mr. Mayhew
I agree with the hon. Member for Birmingham, Stechford (Mr. Davis) that this is not a 89 matter for levity and, to be fair, there has been none from either side about his suggestion. The hon. Gentleman made a sensible point.
The responsibility for the administration of psychiatric hospitals lies, of course, with the Department of Health and Social Security and my right hon. Friend in charge of that Department. The Home Office has a responsibility for the general content of the criminal law. Therefore, there is a degree of overlap in the new clause.
The hon. Member for Stechford fairly pointed out that the Criminal Law Revision Committee is considering carrying out a review of the law relating to sexual offences. It is right that I should make clear that at the end of 1980 its working party specifically stated that it did not consider the Mental Health Act 1959 to be within its terms of reference. Policy on section 128, to which the hon. Gentleman drew particular attention, is an aspect of hospital management and therefore a matter for the DHSS. However, the CLRC's review will cover section 7 of the Sexual Offences Act 1956, as amended by section 127 of the Mental Health Act 1959, which creates the offence of having unlawful sexual intercourse with a mental defective.
The offence to which I have just referred—the general offence, not one related to persons in authority in a psychiatric hospital—can be committed only by a male. It can be committed against a female or a male mental defective, but it can be committed only by a male.
I take note of the hon. Gentleman's argument. I do not doubt that he is right in his analysis of the reasons why the offence in section 128 of the principal Act is expressed to be capable of being committed only by a male. For my part, I do not wish to close the door on any change.
The sole point that I wish to make is that, although the Criminal Law Revision Committee excluded from its consideration offences committed within mental hospitals because, in its view, they fall outside its remit, nevertheless it will be looking at section 7 of the Act to which I have referred. I do not doubt that section 7 will fall within its overall remit. If the committee considers section 7, I have no doubt that it will consider the whole issue of whether it should or should not be extended so that the offence under section 7 may be committed by a female.
In my view, it would be unwise, in the limited ambit to which the new clause refers, to accept the clause when we have not had the benefit of the opinions of the CLRC on the broader offence to which I have referred. That point is particularly strong because the issue was not raised until very recently. It was not raised during the three days of the Special Standing Committee's proceedings when evidence was taken. Nor, I understand, was it raised during the course of the Standing Committee.
Although that may sound like a typically cautious Home Office view, I speak not as a Home Office person but as someone who has had to deal with the law during his professional life. It has turned out to be a mistake to legislate with inadequate thought, reflection and consultation about the possible effects.
I am not unsympathetic to the reasons for the new clause, but it would be unwise to accept it in advance of what the CLRC may say in its report. I do not know what that report will say or whether section 7 will be specifically examined, but the section falls within the remit of the CLRC and it would be wise to await its report in order to have a more informed and better-founded view of the proposals.

§ Mr. Terry Davis
I was not suggesting that the Minister was engaging in hilarity. It was one of his hon. Friends.
The Minister is being too cautious in saying that it is not possible to amend the law this evening. The Special Standing Committee procedure was severely inhibited by lack of time. We did not have time to discuss with the witnesses everything that they put in their written evidence to us. I should not wish Ministers to believe that the lack of discussion of this detailed and minor point—in comparison with the clauses on consent to treatment and others—showed that no members of the Committee were interested. I say that because the Royal College of Nursing told all members of the Committee that, since the Committe stage was completed, it has corresponded with and been told by the Home Office that the Department intends to do nothing because the matter was not mentioned to the Special Standing Committee. Perhaps what I have said is an unfair summary of the letter sent by the Royal College of Nursing, but it is its summary.
The Minister displayed great sympathy for my argument that we should be careful in discriminating between men and women. He made it clear that, if the matter is reported on by the Criminal Law Revision Committee, he will be sympathetic towards removing any suggestion that me; should be penalised or prosecuted and that women should not. Therefore, I beg to ask leave to withdraw the clause.