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Lord Falconer of Thoroton moved Amendment No. 108:
- Page 16, line 39, leave out "a" and insert "or incites another"
On Question, amendment agreed to.
[Amendments Nos. 109 and 110 not moved.]
Lord Falconer of Thoroton moved Amendments Nos. 111 and 112:
- Page 17, line 6, after "caused" insert "or incited"
- Page 17, line 14, after "caused" insert "or incited"
On Question, amendments agreed to.
Clause 34 [Inciting a person with a mental disorder or learning disability to engage in sexual activity]:
[Amendments Nos. 113 and 114 not moved.]
[Amendment No. 115 had been withdrawn from the Marshalled List.]
[Amendment No. 116 not moved.]
Lord Falconer of Thoroton moved Amendment No. 117:
- Leave out Clause 34.
On Question, amendment agreed to.
Clause 35 [Engaging in sexual activity in the presence of a person with a mental disorder or learning disability]:
[Amendments Nos. 118 and 119 not moved.]
Clause 36 [Causing a person with a mental disorder or learning disability to watch a sexual act]:
[Amendments Nos. 120 and 121 not moved.]
Clause 38 [Causing a person with a mental disorder or learning disability to engage in sexual activity by inducement, threat or deception]:
Lord Falconer of Thoroton moved Amendments Nos. 122 to 124:
- Page 19, line 15, leave out "a" and insert "another"
- Page 19, line 16, after "in" insert ", or to agree to engage in,"
- Page 19, line 25, after "caused" insert "or agreed to"
On Question, amendments agreed to.
Clause 39 [Causing a person with a mental disorder or learning disability to agree to engage in sexual activity by inducement, threat or deception]:
Lord Falconer of Thoroton moved Amendment No. 125:
- Leave out Clause 39.
On Question, amendment agreed to.
Clause 42 [Care workers: sexual activity with a person with a mental disorder or learning disability]:
[Amendment No. 126 not moved.]
Clause 43 [Care workers: causing sexual activity]:
Lord Falconer of Thoroton moved Amendment No. 127:
- Page 21, line 24, leave out "a" and insert "or incites another"
On Question, amendment agreed to.
[Amendment No. 128 not moved.]
Lord Falconer of Thoroton moved Amendment No. 129:
- Page 21, line 33, at end insert "or incited"
On Question, amendment agreed to.
Clause 44 [Care workers: inciting sexual activity]:
[Amendment No. 130 not moved.]
Lord Falconer of Thoroton moved Amendment No. 131:
- Leave out Clause 44.
On Question, amendment agreed to.
Clause 45 [Care workers: sexual activity in the presence of a person with a mental disorder or learning disability]:
[Amendment No. 132 not moved.]
Clause 46 [Care workers: causing a person with a mental disorder or learning disability to watch a sexual act]:
[Amendment No. 133 not moved.]
Lord Astor of Hever moved Amendment No. 134:
- After Clause 46, insert the following new clause—
The noble Lord said: My Lords, in Committee we had a lengthy debate on this amendment which threw up some interesting points and highlighted problems with the drafting of the two alternative versions that we proposed. It was clear that some people, not least my noble friend Lady Blatch, thought that to include an exemption for those providing sexual education would lead to abuses of the system. People might deliberately seek to become carers in order to use the excuse of providing sexual education and then carry out abuse. Our original amendment included the phrase,
We have no wish to create a loophole. We accept that our alternative version about authorisation from the Secretary of State might have been unworkable, as the Minister pointed out. We have therefore tabled Amendment No. 134 on the basis of the Minister's response:
Have the Government thought any further about guidance? We do not want those who undertake sexual assistance to people with a mental disorder or learning disability to be unfairly prosecuted under the clause. We believe that using guidance would clarify the situation. I beg to move.
Baroness Blatch: My Lords, it is with some diffidence that I rise to oppose my noble friend yet again, because I know that he has a real concern about the matter. I shall not repeat the arguments that I raised in Committee when the amendment was first
My noble friend Lord Astor of Hever told the Committee that he was concerned with care workers who,
Even if one accepts that there can be legitimate circumstances in which a care worker carries out such an activity—and I am not absolutely certain that I do—my noble friend has pointed to the danger of creating a category of persons authorised to do such things. In what way can we prevent people from taking advantage of their exemption simply to abuse patients? Setting out the detail in guidance to cover such activities would take the wisdom of Solomon. I certainly would not like to have such a responsibility.
I understand some of the concerns my noble friend has expressed. However, I remain concerned that such exemptions could provide licence for abuse. That I certainly would not support.
Lord Falconer of Thoroton: My Lords, as the noble Lord, Lord Astor of Hever, indicated we went through many of these arguments in Committee. I think—I may have misunderstood—that he tabled the amendment in order to probe guidelines rather than as a defence because we have gone through in detail the difficulties of having such a provision as a defence. The noble Baroness, Lady Blatch, touched on that aspect. We would oppose the clause in relation to it being a defence.
However, I believe that the real question is about guidelines. We have considered carefully. We have consulted about what to do. I fear that the suggestion of tying it to the issue of national guidelines could not work at this time. The nature of sex education in these circumstances is a contentious one about which the views of stakeholders are divided. It seems unlikely that it would be possible to issue early guidelines which would encompass such divergent views. So I fear that I offer no comfort in relation to guidelines.
Against that background, we believe that it is a matter which must at present be left to prosecutorial discretion in deciding whether it is in the public interest to bring a prosecution given the circumstances of the case. For those reasons, I must resist the amendment.
Lord Astor of Hever: My Lords, I am grateful to the Minister for his response. The amendment was tabled in order to probe the issue of guidance. I was sorry to hear what he said.
I understand my noble friend's concerns about the amendment. After a number of discussions with charities and care workers I have satisfied myself that there is a need for the provision. However, in the light of the Minister's response, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 47 [Care workers: interpretation]:
[Amendment No. 135 not moved.]
Lord Astor of Hever moved Amendment No. 136:
The noble Lord said: My Lords, in moving Amendment No. 136, I speak to Amendments Nos. 137, 138 and 142. They all concern the interpretation of care workers and care staff in settings to be covered by the Bill. I thank the Minister for his response in Committee. I table the amendment today as something of a safety measure.
The Government have been laudable in their efforts to ensure that vulnerable adults are protected effectively from abusive care workers. The removal of the residence requirement and the extension to include services and assistance as well as care are most welcome. I refer specifically to government Amendment No. 274 in Committee which amended subsection (4) of Clause 47. However, I seek reassurance from the noble and learned Lord that the amendment is sufficiently broad to ensure that providers operating outside mainstream care provision will be covered by the Bill. I refer to those additional types and forms of provision encompassed in Amendments Nos. 136 to 138 and 142.
In his response to my amendments in Committee, the noble and learned Lord stated that Amendment No. 274 will encompass most of the relationships of care proposed for inclusion. Can the Minister give any assurance that the full range of those relationships of care encompassed by my amendments is covered by Amendment No. 274? Will Clause 47 as drafted cover independent practitioners and practices, including self-employed practitioners, private residences, complementary therapists, counsellors and psychotherapists? I beg to move.
"CARE WORKERS: E"CEPTION FOR PURPOSES OF SE"UAL EDUCATION
It shall not be an offence under sections 43 to 46 if a care worker provides sexual education, advice or assistance in accordance with guidelines which have been issued for that purpose by the Secretary of State."
"for the purposes of obtaining sexual gratification".
It was argued that that would be impossible to prove and that subsequent convictions would be hard to achieve.
"The noble Lord asks about producing some sort of guidance. We need to think about that, as it seems an important issue. Without giving any assurance, I should like to come back to that on Report and indicate where we have got to".—[Official Report, 28/4/03; col. 541.]
"engage in intimate acts as part of a programme of sex education for their patients, for example, facilitating masturbation".
He went on to say:
"It might be hard to prove in reality whether or not a care worker was helping a patient perform a sexual activity for the purposes of obtaining sexual gratification".—[Official Report, 28/4/03; col. 536.]
5.30 p.m.
Page 23, line 36, leave out "or an independent medical agency" and insert ", an independent medical agency, an independent practice or an independent practitioner,"
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