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Key flaw 1 of 17 · cl. 1(3) ; EN paras 31–32
Two tiers of protection: clinicians and everyone else
[n] evidence items · [n] accounts · [Jurisdictions]
What it does
Only conduct in the course of health care is excluded, and only unless it falls “far below” expected standards, which the Government equates with gross negligence. Parents, teachers, social workers, faith leaders and friends have no equivalent protection. The same question is presumptively lawful from a counsellor and assessed for abuse from a mother.
Effects: Parents bear the most legal exposure and have the least protection. Social workers and teachers who explore whether trauma or abuse underlies a child's identification are unprotected. Exploratory therapy may be judged against prevailing practice, which in some quarters is affirmation-led.
At a mimimum
Insert a clarifying provision after cl. 1(2). It would state that a person does not have the prohibited intention by reason only that they decline to proceed on the basis that an individual has a particular sexual orientation or transgender identity, give support without seeking a particular outcome, or explore openly and without direction the factors relevant to the individual’s distress. Abusive conduct remains within the offence.
Illustrative drafting is in Annex A.
Because it applies to any “person”, it protects parents, teachers and social workers who explore a young person’s distress on the same terms as clinicians, without extending the healthcare exemption. Abusive conduct remains within the offence.
Put the Explanatory Notes’ narrower meaning on the face of the Bill.
The clause
1 (3) Conduct which— (a) is carried out by a person towards an individual with such an intention, but (b) is carried out in the course of providing health care services to the individual concerned, is not a conversion practice unless the person acts in a way that falls far below the standards reasonably expected of a person in their position.
EN 31 Subsection (3) relates to the provision of health care services. It states that, unless a healthcare provider acts in a way that falls far below the standards of care that might reasonably be expected of a person in their position, any conduct provided in the course of a health care service is excluded from the definition of conversion practice at Clause 1(2). This clarifies that the provision of health care services is considered to be outside the scope of the draft Bill, unless the provider does something which falls far below the standards of care that might reasonably be expected of a person in their position. This is equivalent to a threshold of gross negligence.
EN 32 Healthcare services have the same meaning as in section 135 of the Health and Care Act 2022, and the provision will include people working in all public and private, regulated and non-regulated sectors.
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