The problem

Thomas et al (Reference Thomas, Bartlett and Mezey1995) documented that 33% of female in-patients experienced unwanted sexual comments or molestation although the majority did not report this. Barlow & Wolfson (Reference Barlow and Wolfson1997) stated that 56% of women had been pestered by men and that 8% had taken part in a sexual act against their will. In July 2006, the National Patient Safety Agency (2006) produced a report highlighting concerns about sexual assaults on patients in National Health Service mental health units. The media accused the Department of Health of ‘sitting’ on this report.

Consenting sexual activity on in-patient wards and what constitutes consent is always going to be a controversial issue. The fact is that in-patients are having physical relations. A study at Imperial College (Reference Warner, Pitts and CrawfordWarner et al, 2004) found high levels of sexual activity among in-patients on acute psychiatric wards. Thirty per cent of the patients in the sample had engaged in some form of sexual activity. In a similar survey of chronic psychiatric patients in British Columbia, Canada, the figure was 38% (Welch et al, 1996).

Welch et al (1996) state that chronically hospitalised patients have a right to sexual intimacy and that staff therefore have a duty to accept the individual's sexuality, in an empathic, non-judgemental and humane manner. However, the hospital also has a duty to protect in-patients from possible harm arising from sexual encounters, and that sexual harassment and assault in any form should not be tolerated. An individual's mental state may affect their ability to consent and, even if they do consent, they may regret this later. How far we can enforce behaviour and protect patients from exploitation before we encroach on freedom of expression and Human Rights legislation is very difficult to determine.

The need for a policy

When patients are found engaging in, or report, sexual activity, staff must consider various factors. These include whether or not either or both individuals have capacity to consent to the act, if the behaviour should be deemed criminal and therefore whether the police should be involved.

Capacity to consent and its fluctuating nature pose dilemmas for staff. The spectrum from exploitation to assault needs careful consideration. Mental illness, learning disabilities, dementia or substance misuse can cause an imbalance of power and make a person more vulnerable to abuse or coercion and possibly incapable of consent. A policy is needed to guide staff, especially junior medical and nursing staff, through this process.

Subotsky (Reference Subotsky1993) recommended putting in place policies on consenting sexual activity and the prevention of sexual harassment and assault on in-patient wards, plus a procedure in the event of alleged or apparent sexual assault. Following this, the Royal College of Psychiatrists (1996) now recommends that all centres should have policies covering both sexual relationships and sexual harassment or abuse and that there should be procedures for monitoring and auditing incidents and allegations.

Actions in the event of an incident

Any alleged or apparent assault should be treated as a serious incident and the documented procedure followed. The fact that it occurred on a psychiatric ward must not alter how it is dealt with and it could be argued that, given our duty of care to protect people who are vulnerable, staff may need to take the lead in pursuing police involvement. Staff need be very careful not to dismiss accusations or reports as delusions, exaggerations or deliberate untruths and to bear in mind that an assault may involve two patients or a member of staff and a patient.

In the event of a patient reporting an assault, staff having suspicions or someone witnessing an untoward incident, a senior member of the nursing staff and a doctor should be contacted. The most senior doctor and nurse present should be responsible for implementing the policy.

Any physical injuries and ongoing risks to the victim, other patients or members of staff need immediate attention. As obvious as it may seem, staff and patients may need reminding that sexual assault and rape are crimes and need to be reported to the police. In most circumstances, it would be inappropriate for the psychiatric doctor to perform a sexual assault examination; a forensic medical examiner or a gynaecologist with experience of forensic issues should do this.

If there is any likelihood that the police may be involved, the area needs to be cordoned off, as it may become a crime scene, and both patients advised not to shower or bath. The interviewing needs to be sensitive at the same time trying to ascertain some basic facts. The alleged perpetrator needs to be informed of the allegation and given an opportunity to explain their version of events. It should be explained to them that the police might be involved.

Locally, we are lucky enough to have access to ‘The Haven’, which provides medical, forensic and psychosocial support for victims of sexual assault. More information on national sexual assault referral centres is on the Metropolitan police website (www.met.police.uk/sapphire).

The risks of pregnancy and sexually transmitted diseases also need addressing. Our local primary health care trust have provided us with prescribing information and a proforma for post-coital contraception to be used by junior doctors. This is to avoid any delay in prescribing. Post-coital contraception is a safe and effective intervention that should be offered as soon as possible after a sexual assault to reduce the risk of pregnancy. The hormonal method is widely available through nurse-led clinics and pharmacies and has very few contraindications, so doctors from all specialties should be able to prescribe it. Advice on prophylactic antibiotics should be taken from the local Department of Sexual Health or sexual assault referral centre.

Determining capacity, consent and fitness to be interviewed

Careful clinical assessment of the person's mental state is essential to ascertain whether there is a disorder of attention, memory, language, thought form, thought content, perception, mood or control that is ‘severe enough’ to render the individual incapable of consent to activity or responsible behaviour (Welch et al, 1996).

The Royal College of Psychiatrists (1996) highlights the paucity of research into assessment of capacity to consent to sexual activity in contrast to consent to medical treatment. Abuse ranges from exploitation to overt assault and an imbalance of power in a relationship interferes with the ability to consent (e.g. staff - patient or a relationship involving an adult with severe mental illness or learning disability). Capacity to consent is dynamic and specific to the alleged offence.

With regard to the alleged perpetrator, Bayney et al (2003) draw attention to the fact that in some instances mentally disordered offenders do have responsibility for their criminal behaviour, since they have an understanding of what is right and what is wrong and they can exercise choice in their decisions. This may need to be brought to the attention of the police and possibly members of staff. The patient's consultant should prepare a report on the alleged offender and the offence to aid the police.

Incident documentation

Adequate documentation and reporting is paramount. Cole et al (Reference Cole, Baldwin and Thomas2003) highlighted the inadequate recording of data in the event of sexual assaults and suggested that a number of factors led to this outcome. These included the fact that staff may be habituated to sexually aggressive behaviour by patients so that the behaviour does not provoke the same level of outrage that would be expected when perpetuated against less stigmatised individuals (Reference Thomas, Bartlett and MezeyThomas et al, 1995). Other factors were staff attitudes to both the victim and perpetrator and either the victim or staff not wanting to pursue the legal path.

Cole et al (Reference Cole, Baldwin and Thomas2003) made the recommendation that (as a minimum) an incident form should be completed, the assault mentioned in discharge summary, the assailant named and the assault reported to a line manager. Further suggestions in that paper included the development of a special incident form for sexual assaults that could be reviewed and audited and also that repeated allegations against the same person must be brought to the attention of their consultant.

Our policy implementation

Policies obviously help guide staff but it was felt that, in addition, a flow chart and guidance on judging consent would help more junior members of the team take appropriate action immediately. New policies need to be approved by the trust and then disseminated to clinical members of staff. Initial training of senior staff (matrons, lead nurses, team managers) will follow and then training of other staff can be undertaken. The policy will also need auditing. Specific trust staff should be assigned to each of these roles. Our policy is awaiting formal implementation by the trust but is currently being used as a proforma by the Health, Safety and Security Nurse Manager (Fig. 1 and Box 1).

Fig. 1. Flow chart for alleged/suspected sexual assault. See Box 1 for guidance on use.

Declaration of interest

None.