I was pleased to read Dr Kennedy’s review of the Kerr/Haslam Inquiry (Psychiatric Bulletin, June 2006, 30, 204–206) and Dr Subotsky’s response on behalf of the College (Psychiatric Bulletin, June 2006, 30, 207–209). Dr Subotsky referred to sexualised behaviour between doctors and patients having been made criminal.

The Sexual Offences Act 2003 introduced significant changes to the law by introducing a new offence of sexual activity with a person with mental disorder impeding choice. This offence requires proof of sexual touching and that the individual was unable to refuse because of or for a reason related to a mental disorder. In addition, it must be proven that the perpetrator knew or could reasonably have been expected to know that the victim had a mental disorder (Reference Stevenson, Davies and GunnStevenson et al, 2004). The key factor in determining whether it is possible to bring a safe conviction will hinge around capacity to refuse unwanted sexual activity. This is not defined in the Act (British Medical Association, 2004). For people with mental illness, where capacity is likely to fluctuate, it may be difficult to prove what their mental state was at the time of the alleged offence. Although well intentioned, in practice the law may be difficult to implement.

Clinicians should be aware that they or their colleagues may be arrested on a charge of rape should they decide to have sexual intercourse with their patients. Doctors will always be in the position of having more choice in these situations than their patients. For this reason, it is right that the College continues to deem that relationships of sexual intimacy between doctor and patient are totally unacceptable (Royal College of Psychiatrists, 2002).