Clause 40 - Care workers: sexual activity with a person with a mental disorder or learning disability

Sexual Offences Bill [Lords] – in a Public Bill Committee at 4:45 pm on 16th September 2003.

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Amendments made:

No. 72, in

clause 40, page 20, line 21, leave out 'or learning disability'.

No. 73, in

clause 40, page 20, line 23, leave out 'or learning disability'.—[The Solicitor-General.]

Photo of Sandra Gidley Sandra Gidley Liberal Democrat, Romsey 5:00 pm, 16th September 2003

I beg to move amendment No. 185, in

clause 40, page 20, line 24, at end insert—

'( ) A person is not guilty of an offence under this section if—

(a) the touching was for the purpose of sex education, and

(b) B is a person with profound and multiple disabilities such that they require intensive and intimate support to understand and receive sex education, and

(c) there is no alternative means of delivering this sex education because of the nature of B's disability, and

(d) the education is carried out by qualified specialists or by staff who have received training to meet the specific needs of B, and

(e) the decision to provide such sex education has been recommended by a multidisciplinary agency.'.

Photo of Roger Gale Roger Gale Conservative, North Thanet

With this it will be convenient to discuss the following:

Amendment No. 146, in

clause 40, page 20, line 44, at end insert—

'(5) A person is not guilty of an offence under this section if—

(a) the touching was for the purpose of sex education;

(b) B is a person with profound or multiple disabilities such that he requires intensive and intimate support to understand or receive sex education;

(c) there is no alternative means of delivering this sex education because of B's disability and

(d) the education is carried out by qualified specialists or by staff who have received training to meet the specific needs of B'.

Amendment No. 186, in

clause 41, page 21, line 9, at end insert—

'( ) A person is not guilty of an offence under this section if:

(a) A's action was for the purpose of sex education and,

(b) B is a person with profound and multiple disabilities such that they require intensive and intimate support to understand and receive sex education, and

(c) there is no alternative means of delivering this sex education because of the nature of B's disability, and

(d) the education is carried out by qualified specialists or by staff who have received training to meet the specific needs of B, and

(e) the decision to provide such sex education has been recommended by a multidisciplinary agency.'.

Amendment No. 147, in

clause 41, page 21, line 30, at end insert—

'(5) A person is not guilty of an offence under this section if—

(a) the touching was for the purpose of sex education;

(b) B is a person with profound or multiple disabilities such that he requires intensive or intimate support to understand and receive sex education;

(c) there is no alternative means of delivering this sex education because of B's disability and

(d) the education is carried out by qualified specialists or by staff who have received training to meet the specific needs of B'.

Photo of Sandra Gidley Sandra Gidley Liberal Democrat, Romsey

I rise to speak to amendment No. 185. Amendment No. 186 is in a similar vein and amendments Nos. 146 and 147 have been tabled by Conservative Members to achieve much the same end in a slightly different way. This subject was raised briefly on Second Reading. The problem is that there are some occasions, most notably in the teaching of deaf-blind people, where there is no other way to provide sex education than by the use of touch. The concerns are that the Bill as drafted will effectively criminalise workers in that sector.

The amendment seeks to introduce a very limited exception to the provisions. The last thing that anyone on the Liberal Democrat Benches wants to do in introducing such an amendment is to create a loophole that others can exploit. The people in question are generally the congenitally deaf-blind: people born without sight or hearing. Many in that category never acquire formal language skills and their only way of learning about the world is through touch.

We might ask why those people need sex education and wonder whether we can leave it to nature. The sad reality is that some deaf-blind people, as a natural reaction, might want to masturbate but do not know that what they are doing needs to be done in private and not when others are present. I am told that there are ways of getting this information over by the use of touch but that will happen fairly rarely. There are also occasions when things are not quite so natural. People may insert objects inappropriately. I read of a case in which a young woman was using soaps and deodorants inappropriately. Clearly, there is a need in such a case to do something to intervene to prevent further self-harm. That activity has to be replaced by something less damaging to the individual.

In drafting the amendment, I have made it very clear that the only purpose of such a provision could be for education. The person receiving the treatment must fall under the definition of having profound and multiple disabilities. To try to add further safeguards, we have said that there must be some element of protecting the person from abuse or harm. If someone is not familiar with the ways of the world and someone inappropriate is touching them in a certain way, whether it be a family member or whoever, somehow, that information also has to be communicated—that such behaviour is not allowed with that particular person. We are clear that there can be no other way of delivering that information. If there were another way to deliver that training or education, that would have to be tried first.

In an attempt to close all the loopholes, it was thought that it should not be just one person making the decision to provide that training, because a person

could say, ''That is a job that I might quite like'', act accordingly, and perhaps try to deliver more training and education than was necessary. As a final safeguard, we included the provision that the decision to provide that sex education must be the decision of the multidisciplinary team. I toyed quite seriously with the idea that such education should be supervised but I was less easy with that. Just because someone cannot see or hear, it does not mean that things should not be carried out in as private a venue as possible.

That is the thinking behind the amendments. I hope that, if the Government do not accept them, I will at least be given some assurance that that sort of necessary education will be allowed to continue in some way, and I would like to hear how that will be achieved.

Photo of Humfrey Malins Humfrey Malins Conservative, Woking

I am grateful to Sense for the amendments that my hon. Friend the Member for Beaconsfield and I tabled. I have listened carefully to what the hon. Lady has said, and feel that it is important that the amendments have been tabled, so that the Government are aware of the issue and can respond as fully as possible. I do not think that I need say any more than that.

Photo of Harriet Harman Harriet Harman Solicitor General (Law Officers), Member, Labour Party National Executive Committee

Amendments Nos. 146 and 147 and 185 and 186 seek to provide a defence for care workers who provide hands-on sex education, such as teaching a person to masturbate or getting them to masturbate themselves, in the strictly limited circumstances that the hon. Lady laid out—that is, where there is no alternative way that sex education can be provided. We understand the point of view of care workers who believe that a hands-on approach to sex education is an important part of the care that they provide.

We have considered the issues surrounding a sex-education exception carefully, and took a wide range of soundings from relevant organisations both when the Bill passed through another place and when considering this proposal. We have not found any consensus as to the legitimacy of such forms of sex education among the learning disability charities, even in the more limited circumstances proposed in the amendments. Some of them believe that it is never appropriate. This is a contentious subject.

Photo of Sandra Gidley Sandra Gidley Liberal Democrat, Romsey

I was talking about a very specific group of people. The charity Sense was mentioned; it is the group that is most closely involved. I argue that the other agencies with which the Solicitor-General consulted may not have direct experience of the problem. Can she elaborate on who was against the amendments, what their reasons were, and how they would provide the necessary help?

Photo of Harriet Harman Harriet Harman Solicitor General (Law Officers), Member, Labour Party National Executive Committee

I understand that Respond and Voice UK, which are concerned with and advocates for that client group, are worried about whether, and in what circumstances, such education would be appropriate. It is because of the controversy surrounding the issue that there are no national guidelines.

Contrary to what may be implied in the amendments, there are no recognised qualifications

to cover such forms of sex education. People who are vulnerable by virtue of a mental disorder are targeted for sexual abuse by predatory individuals. Although the overwhelming majority of care workers are conscientious, a small minority have used their positions of trust to take advantage of the vulnerability of those in their care. We must not create a loophole through which the unscrupulous, whose behaviour was abusive, could claim to be providing sex education.

Photo of Sandra Gidley Sandra Gidley Liberal Democrat, Romsey

As I explained earlier, we have tried hard to avoid creating that loophole. Will the Solicitor-General explain how it might work?

Photo of Harriet Harman Harriet Harman Solicitor General (Law Officers), Member, Labour Party National Executive Committee

I understand that there is not yet consensus around the amendment and having a legislative exemption in the Bill. Some would argue that that is properly a matter for prosecutorial discretion. I am not convinced that we have consensus or, if we do, whether the legislative answer is watertight enough, so that we do not undermine the protection that we are seeking to provide. For those reasons, I ask the Committee to resist the amendments.

My hon. Friend the Under-Secretary met Sense last night to discuss the relevant issues. Perhaps we can—as ever—find consensus, so that we all know what we are talking about, and all those involved in this important, difficult area of work are agreed about what is and is not appropriate and what is and is not necessary. If we can achieve consensus, or at least identify it, and identify the legislative amendment that would give effect to that consensus in the Bill, we will consider tabling it. We are not unsympathetic to the point that is being raised but we must be aware of the difficulties in this sector. Frankly, we must be guided by those involved on the front line in this difficult sector—the parents and care workers.

I ask the hon. Members for Romsey and for Woking not to press the amendments. This is another part of the Bill on which discussion will be ongoing. If we do not find consensus, or if we find consensus but no legislative expression for it in which we feel confident, we shall not be able to table amendments on Report. We shall certainly try to find consensus. My hon. Friend the Under-Secretary is already engaging in that process.

Photo of Sandra Gidley Sandra Gidley Liberal Democrat, Romsey

I thank the Solicitor-General for her response. I am still unconvinced that there are loopholes. I have yet to hear how such a loophole would be exploited. However, I take the point that there is no consensus in the sector. Despite what I have said, I, too, am concerned that we get it right and do not provide loopholes. I intend to discuss the matter with Respond and Voice UK, with a view, if the Government do not table further amendments on Report, to having another go at that stage. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Amendments made: No. 74, in

clause 40, page 20, line 26, leave out 'or learning disability'.

No. 75, in

clause 40, page 20, line 28, leave out 'or learning disability'.—[The Solicitor-General.]

Clause 40, as amended, ordered to stand part of the Bill.