(a) Actionable damage

The first hurdle is that claimants must demonstrate that they have suffered some form of actionable damage.Footnote ⁵⁰ Physical injury caused by lobotomies, castration, electro-shock treatment or the side-effects of drugs would constitute actionable damage.Footnote ⁵¹ Indeed, there are reports of patients who died as a result of the side-effects of drugs used as aversion therapy in the 1950s.Footnote ⁵² This hurdle would be relatively unproblematic for such claimants.

Talking therapies do not necessarily cause physical injury. With mental or emotional harm, the law makes a distinction between ‘recognised psychiatric injuries’ and ‘normal human emotions’ such as grief, distress and sorrow.Footnote ⁵³ The former can form the gist of an action in negligence whereas the latter are insufficient to ground a claim. Ironically, whether a claimant is suffering from a recognised psychiatric injury is determined by the same manuals – the DSM and the ICD – that once classified homosexuality as a sociopathic personality disorder and sexual perversion alongside paedophilia.Footnote ⁵⁴ There is anecdotal evidence that many of those who have attempted conversion therapy have suffered psychiatric injuries as a result.Footnote ⁵⁵ Such patients will meet this threshold.

For mental or emotional harm that falls short of a recognised psychiatric disorder, patients will be unable to claim. Conversion therapists often tell participants that homosexuality is caused by faulty family dynamics and rely on tropes of bullying fathers and smothering mothers.Footnote ⁵⁶ Some people have been advised to cut ties with families, end their relationships or undertake a heterosexual marriage.Footnote ⁵⁷ In one report, an individual was told to stop playing the piano as it was making him gay.Footnote ⁵⁸ Damage to relationships or interference with hobbies alone would not be forms of actionable damage in negligence. Nor would ‘damaged self-esteem’.Footnote ⁵⁹ A recent report from the Ozanne Foundation found that more than half who had attempted to change their sexuality reported ‘mental health issues’ and, of these, a number had attempted suicide or committed self-harm.Footnote ⁶⁰ Further specifics are unavailable and if these mental health issues do not reach the threshold of being a recognised psychiatric injury then the law of negligence may not assist many people who have been harmed by these practices.

At this juncture, it is worth mentioning that this aspect of the law has been widely criticised. Rachael Mulheron has argued that the bright-line rule leads to legal and medical distortions and has proposed replacing the requirement for a recognised psychiatric injury with one of ‘grievous mental harm’.Footnote ⁶¹ Similarly, Jyoti Ahuja has argued that the threshold requirement is mistaken in perceiving psychiatric disorders as more serious than merely ‘psychological’ harms. Instead, psychiatry is concerned with abnormal emotions and behaviour. Questions regarding whether an injury is psychiatric or merely a normal human emotion ‘while crucial for therapeutic purposes, are irrelevant for assessing the impact of the suffering upon a person's life’.Footnote ⁶² In Canada, the requirement that a claimant suffer a recognised psychiatric injury was recently jettisoned by the Supreme CourtFootnote ⁶³ and Israeli law has permitted negligence actions by children for the emotional damage they suffered after being abandoned by their father.Footnote ⁶⁴ If similar approaches were followed in England then such claims could proceed.

Likewise, it is theoretically possible that the courts could develop new forms of actionable damage.Footnote ⁶⁵ For example, Tsachi Keren-Paz has argued that discriminatory behaviour should be actionable in the tort of negligence.Footnote ⁶⁶ Another suggestion is that the English law should recognise violation of autonomy as a new form of free-standing damage in negligence.Footnote ⁶⁷ Both of these proposals, if implemented, could assist in claims against conversion therapists as it is arguable that attempting to change someone's sexuality discriminates against LGBT+ individuals and interferes with their autonomy.Footnote ⁶⁸ Recognition of lost autonomy as a standalone form of actionable damage appears to have been stamped on by the courts,Footnote ⁶⁹ but whether this hurdle could be cleared would largely depend upon the attitudes of the judge deciding the case.Footnote ⁷⁰ It is possible that a sympathetic judge could develop a novel form of actionable damage to avoid sending a claimant home empty-handed. Without changes in the law, though, claims will fail at this hurdle if the claimant is not suffering from a ‘recognised’ psychiatric injury.

(b) Duty of care

Even if claimants who have undergone conversion therapy can establish that they have suffered damage, they will need to show that the defendant was under a duty of care to avoid causing it. Establishing a duty of care in psychiatric injury cases can be difficult. In ‘accident’ cases the law divides claimants into primary and secondary victims. Primary victims are (usually) those who have suffered psychiatric injuries after being immediately involved in an accident.Footnote ⁷¹ The main category is those who have been physically endangered by the defendant's negligence (or reasonably believe they were in danger).Footnote ⁷² Secondary victims are those who have suffered psychiatric injuries after witnessing another individual being killed, injured or endangered but need not detain us further.Footnote ⁷³

Conversion attempts via talking therapies are not accidents involving strangers that usually ground claims for psychiatric injury.Footnote ⁷⁴ Outside of this type of claim, the law is more difficult to determine,Footnote ⁷⁵ and may be dependent upon whether the ‘therapist’ is a professional. In Farrell v Avon Footnote ⁷⁶ the claimant arrived at hospital and was negligently – and incorrectly – informed that his new-born baby had died. He was given a dead baby to hold before the hospital realised the mistake and informed him that his son was alive. He succeeded in bringing a claim for psychiatric injuries he suffered as a result. The judge said, ‘the claimant here is clearly a primary victim as he was physically involved in the incident itself’.Footnote ⁷⁷ As the claimant himself was not in any physical danger, this dicta is hard to reconcile with the leading cases on primary victims.Footnote ⁷⁸ Mulheron asks, ‘But how could he have been a primary victim? He was not in the zone of danger himself, nor had he imperilled the newborn child’.Footnote ⁷⁹ Given this, Farrell is often interpreted as imposing a novel duty of care for the ‘delivery of distressing news’.Footnote ⁸⁰

Recent cases have promoted a different interpretation of Farrell, which may hinder attempts to claim against conversion therapists. In the Countess of Caledon v Commissioner of Police for the Metropolis Footnote ⁸¹ the applicant sought disclosure of documents in the police investigation of one Mrs Craig, a faith healer/therapist who had been counselling the applicant's daughter, A. She alleged that Mrs Craig had ‘poisoned A's mind against her family’.Footnote ⁸² Mrs Craig had been arrested by the police on suspicion of fraud but the criminal investigation was discontinued. Mrs Justice Slade had to conclude whether the applicant had shown that she had a cause of action against Mrs Craig for defamation, harassment, negligence and the tort in Wilkson v Downton. It was held that she did not.

On the negligence point, the applicant unsuccessfully relied upon Farrell. Instead of being a case on the delivery of distressing news, Farrell was said to impose a duty of care ‘for professional malpractice causing psychiatric or psychological harm’.Footnote ⁸³ The judge held that Mrs Craig ‘did not hold herself out as having any professional qualifications as a therapist’Footnote ⁸⁴ and that there was no evidence that the claimant had suffered from a recognised psychiatric injury. As such, the ‘two necessary ingredients of the tort are absent’.Footnote ⁸⁵

By way of contrast, in Brayshaw v The Partners of Apsley Surgery Footnote ⁸⁶ it was held that a doctor who inculcated a patient into his religion was liable in negligence. The claimant had ‘complicated medical psychiatric and social problems’Footnote ⁸⁷ and alleged that she had suffered psychiatric injuries as a result of religious practices and doctrines imposed on her by the defendant locum doctor, Dr O'Brien.

As part of the religious inculcation, Dr O'Brien had brought the claimant to a ‘testimony’ where a man had told a story about a witch doctor requiring him to set fire to an owl to stop his son dying and then being visited by Jesus. Subsequently, the claimant developed an owl phobiaFootnote ⁸⁸ and felt suicidal as she believed her home to be riddled with demons. Martin Spencer J found that the claimant ‘had an adverse psychological reaction to her experiences at that event’.Footnote ⁸⁹ He said of the defendant:

The judge said that ‘it was foreseeable that she might react adversely in the way that she did’.Footnote ⁹¹ Although the basis of this duty is unclear, the defendant in Brayshaw was a professional.

Countess of Caledon and Brayshaw indicate that if a professional causes a patient to suffer a recognised psychiatric injury (or exacerbates an underlying disorder) then a duty of care will be owed.Footnote ⁹² This may assist victims if the conversion ‘therapy’ was performed by a qualified professional as their situation would be analogous to Brayshaw. This view is also supported by the House of Lords decision of Phelps v Hillingdon London Borough Council,Footnote ⁹³ where Lord Clyde suggested that a person who suffers psychological harm as a result of a professional giving negligent advice was owed a duty of care.Footnote ⁹⁴ However, not all ‘therapists’ are professionals. Such scenarios might be considered more analogous to Countess of Caledon and have less chance of success.

Yet if Farrell is interpreted as indicating that false but distressing news that causes psychiatric injury will be actionable, it may capture ‘amateur’ conversion therapists. Ample evidence exists that they often impart false but distressing information to ‘consumers’. In their study of people who had undertaken conversion therapy, Schroeder and Shidlo state:

There have been reports of conversion therapists telling consumers that ‘all gay people live unhappy lives and that gay relationships are undesirable, unhealthy, and unhappy’.Footnote ⁹⁶ In such circumstances, a duty of care may be owed.

‘Assumption of responsibility’ might provide another avenue for imposing a duty of care.Footnote ⁹⁷ If a defendant has assumed responsibility towards the claimant for a statement or service then there can be a duty of care, even in situations that do not normally attract one.Footnote ⁹⁸ Determining when there will be an assumption of responsibility is a more challenging matter. Despite the closeness of the doctor-patient relationship, there was no assumption of responsibility for the financial losses of raising a child after a failed sterilisation in McFarlane v Tayside Health Board Footnote ⁹⁹ and the highest authority states that the police do not assume responsibility to victims of crime when emergency services say that the police are on their way.Footnote ¹⁰⁰ On the other hand, there was an assumption of responsibility by the defendant solicitor to the disappointed beneficiary under a will in White v Jones Footnote ¹⁰¹ despite the defendant having never met or spoken to the claimant. Indeed, in Smith v Bush it was held that a defendant can assume responsibility to the claimant despite explicitly stating that they are not assuming such responsibility.Footnote ¹⁰² Even judges have doubted the utility of this concept. In Smith, Lord Griffith questioned whether it was a useful yardstick and stated that the concept can ‘only have any real meaning if it is understood as referring to the circumstances in which the law will deem the maker of the statement to have assumed responsibility to the person who acts upon the advice’.Footnote ¹⁰³

Despite this ambiguity, the editors of Clerk and Lindsell have expressed the view that psychiatrist-patient is a relationship where a duty of care will exist.Footnote ¹⁰⁴ It is therefore likely that professional therapists will owe a duty of care when they cause their ‘patients’ to suffer psychiatric injuries. It is also possible that amateurs will owe a duty of care when they cause the same form of damage: the relationship is likely to be one where there is an assumption of responsibility and some of the case law could be interpreted as imposing a duty when a defendant, regardless of their professional status, delivers false distressing news. This will be important for many claimants, given that conversion practices are often performed in a non-professional setting by religious groups. It is therefore likely that a duty of care could be established against conversion therapists.

(c) The standard of care: negligent treatment

In addition to demonstrating that a conversion therapist owed them a duty of care, claimants must also show that the duty was breached. Healthcare professionals’ duties encompass diagnosis, advice and treatment.Footnote ¹⁰⁵ We will begin with diagnosis and treatment, as the approach to negligent advice cases has altered since the case of Montgomery v Lanarkshire Health Board.Footnote ¹⁰⁶

In diagnosis and treatment cases, ‘therapists’ must meet the standard of the reasonable person placed in their position.Footnote ¹⁰⁷ If conversion therapists hold themselves out to be psychiatrists then they will have to meet the standard of the reasonable psychiatrist; if they present as unqualified faith healers, then the standard will be that of an unqualified faith healer.

Let us consider the standard of care for those who hold themselves out to be psychiatrists or qualified counsellors. Professionals must comply with the Bolam test and Bolitho ‘gloss’, which requires that they follow a responsible body within that profession and that opinion must be capable of withstanding logical analysis.Footnote ¹⁰⁸ What does this mean for a professional providing conversion therapy? In the not-too-distant past they would have escaped liability. There used to be specialist clinics for the ‘treatment’ of homosexuality in London, Birmingham, Manchester, Glasgow and Belfast.Footnote ¹⁰⁹ Electric shock therapy, chemical castration, aversion therapy and pharmaceutical treatment (including the prescription of oestrogen to reduce libido in men), in addition to talking therapies, were considered orthodox curative regimes in the 1960s and so would have complied with responsible medical opinion at the time.Footnote ¹¹⁰ C v Cairns Footnote ¹¹¹ provides a stark illustration of this point. There, it was held a doctor did not breach his duty of care to the claimant in failing to report domestic child abuse to the authorities in 1975. It was accepted practice at the time to prioritise the stability of the family.Footnote ¹¹²

Now, the vast majority of professional organisations are opposed to conversion therapy and it cannot be commissioned on the NHS.Footnote ¹¹³ This provides evidence that it is negligent.Footnote ¹¹⁴ Furthermore, conversion therapy is probably illogical as it falls outside the therapist's professional role. In this respect, Brayshaw may assist claimants. Many people find comfort from religion and praying but it is not the doctor's role to inculcate patients into a religion. Such behaviour fails to meet the standard of care of reasonable medical practice.

Emphasising their professional status will make conversion therapists appear more authoritative but will make it more likely that they fail to meet the standard of care. Yet not all conversion ‘therapists’ will be professionals. As Jack Drescher notes, ‘Many of today's reparative therapists work within a faithhealing model’.Footnote ¹¹⁵ This may not always take place in a traditional ‘therapy’ setting and could take the form of group prayers and exorcisms.Footnote ¹¹⁶ This is reflected in a report survey from the Ozanne Foundation, which found that the vast majority of people seeking to change their sexuality had approached religious leaders (47%) and only a small minority of people had sought advice from medical professionals.Footnote ¹¹⁷

This may offer a lifeline to those facing a negligence action, as they will be subject to a lower standard of care. In Shakoor v Situ Footnote ¹¹⁸ the claimant died as a result of taking a herbal remedy for a skin complaint. The defendant, who administered the remedy, practised traditional Chinese medicine. The High Court held that the defendant should not be held to the same standard as a practitioner of orthodox medicine. Instead, he had to meet the (lower) standard of someone practising traditional Chinese medicine. In meeting this standard, he would have to ensure that the remedy is not actively harmful and keep up to date with orthodox journals (but this would be achieved if a professional association kept him up-to-date).Footnote ¹¹⁹

The result of this case is that pseudo-science is held to a lower standard of care than orthodox medicine. Such defendants will be judged by their ‘own art’. A lack of evidence that conversion therapy works does not mean that such practitioners will fail to meet the standard of care. After all, the same is true of many ‘alternative’ or ‘complementary’ therapies. People who think that homeopathy works or that a rhino horn can treat gout may, among other things, be deluded but administering such complementary therapies is not necessarily negligent. One might, though, distinguish practices which are futile or ineffective (but carry a small risk of injury) from those which are obviously harmful. It is possible that the courts would regard conversion therapy as falling into the latter category.

Regardless, conversion therapists will be placed in a difficult position. If they hold themselves out to be professionals then they may attract more clients but it will be more likely that any ‘consumers’ will be able to demonstrate that the conversion therapists have failed to meet the standard of care. If they brand themselves as faith-healing practitioners of alternative therapies then they will be subject to a lower standard of care but this would ‘at least warn the potential client that the conversionist would be operating out of the psychotherapeutic mainstream’Footnote ¹²⁰ and thus discourage some ‘consumers’ from engaging with the therapy.

Ultimately, it may not make much difference in establishing breach if the judge deciding the case regards conversion therapy as overly risky. As Jean McHale has argued, ‘Safe and competent practice is key, whether this be conventional medicine or complementary and alternative medicine’.Footnote ¹²¹

(d) The standard of care: negligent advice

In cases of negligent advice, the test is no longer what the reasonable doctor would disclose to the claimant.Footnote ¹²² Instead, Montgomery v Lanarkshire Health Board states that the defendant must disclose the material risks and reasonable alternatives in treatment to the claimant.Footnote ¹²³ The test of materiality is whether ‘a reasonable person in the patient's position would be likely to attach significance to the risk, or the doctor is or should reasonably be aware that the particular patient would be likely to attach significance to it’.Footnote ¹²⁴ Assessing breach from the patient's perspective means that a doctor will not be able to escape liability by relying on peer opinion.

One might question whether conversion therapy is a treatment that can even be offered to claimants, regardless of whether the ‘therapist’ proceeds to disclose the risks. As Jonathan Montgomery states, ‘Health care law in England is predicated on an implicit and quasi-contractual structure under which professionals offer treatment options to patients and patients choose whether to accept them’ but there may be constraints on what treatments can be offered to patients.Footnote ¹²⁵ He states that there is limited judicial authority on ‘whether health professionals can offer experimental therapies without being vulnerable to a malpractice suit’.Footnote ¹²⁶ Although the test for disclosure is from the patient perspective, whether it is permissable to offer the treatment is judged by the Bolam standard (discussed above). It may therefore be inappropriate to even offer conversion therapy.

Assuming it can be offered, conversion therapists would have to inform consumers of the harms associated with conversion therapy and that such therapy is opposed by the psychiatric mainstream. Defendants would also need to inform patients of reasonable alternatives, such as gay affirmation therapy, which involves using therapy to accept one's sexuality. Forcing conversion therapists to inform people of the risks and alternatives, or face a negligence action, may reduce the number of people who undertake such therapy.Footnote ¹²⁷ As David Cruz states:

Cruz believed that conversion therapists would be unlikely to meet their duty:

Conversion therapists might be aware of such requirements. The CORE Issues Trust website states ‘Clients have the right to integrate their personal values, spiritual beliefs, or religious faith into their therapy and their individual growth process’ and includes information about the possible strengths, limitations, and risks of ‘gay affirming therapy’ and ‘change oriented therapy’.Footnote ¹³⁰ Change-oriented therapy includes the following downsides: ‘overselling the likelihood and degree of change’, ‘offering reductionistic explanations for homosexuality’ and ‘may be ethically questionable’.Footnote ¹³¹ By way of contrast, gay affirming therapy is said to be ‘consistent with professional ethics codes’.Footnote ¹³² In this respect, conversion therapists have included several of the risks associated with gay conversion therapy and may be complying with the law. This reflects the fact that conversion therapy is nowadays justified on the basis of autonomy rather than illness.Footnote ¹³³ As one consumer of such therapy has stated, ‘The ex-gay movement turned the rhetoric of gay rights against itself: Shouldn't ex-gays be able to pursue therapy and live the lives they want without facing discrimination?’Footnote ¹³⁴

Of course, perceiving the choice to undergo conversion therapy as a free and informed choice among valuable alternatives is far from unproblematic. Doing so fails to take account of the ‘anti-gay social forces’Footnote ¹³⁵ that influence an individual's decisions. These forces will be particularly acute in a religious setting. At the heart of conversion therapy lies a status-based judgement of contempt or disdain for non-heterosexual identities, which are openly considered less valuable, eg abnormal, sinful, disgusting etc,Footnote ¹³⁶ compared to heterosexuality. This judgement maintains that non-heterosexual identities can and ought to be resisted or changed, and conversion therapists offer individuals – often coercively – the vehicle to do so.Footnote ¹³⁷ Thus, as Timothy Murphy states, ‘[t]he motives which prompt people to seek conversion therapy are not the results of any disinterested analysis of the best possible sexual orientation’.Footnote ¹³⁸ Rather, they are often the result of widely understood messages about sexuality norms, viz heterosexuality is ‘normal’ and desirable, whereas other identities or expressions of sexuality are not.Footnote ¹³⁹

Besides, CORE have not included the chances of success and have not listed many of the reported harms that have occurred with conversion therapy.Footnote ¹⁴⁰ And they are only one group. Conversion therapists often fail to provide accurate information about homosexuality, informing consumers ‘that their homosexual orientation was a psychological or developmental disorder’Footnote ¹⁴¹ and that gay people's lives are ‘undesirable, unhealthy, and unhappy’.Footnote ¹⁴² In their study, Shidlo and Schroeder found that only 9% of clinicians informed patients of possible negative effects of the intervention and that many misrepresented the scientific evidence.Footnote ¹⁴³ By not properly disclosing the risks and alternatives of such therapies, conversion therapists may be breaching their duty of care.

The above discussion on breach has assumed that the defendant will be a professional. Amateur defendants in a religious setting might not be caught by Montgomery as, although the case extends beyond the disclosure of medical risks,Footnote ¹⁴⁴ it is not clear that it applies to non-professionals. If it does not, the defendant will be required to meet the standard of the reasonable person. The test is an objective one that ‘eliminates the personal equation and is independent of the idiosyncrasies of the particular person whose conduct is in question’.Footnote ¹⁴⁵ This may mean that the reasonable person is not imbued with the defendant's religious beliefs. As Calabresi states, ‘the loss is likely to be put on the injurer if he or she holds “odd” beliefs, but is likely to be left on the victim if the injurer's belief is non-idiosyncratic or when the belief, though idiosyncratic, is part of our establishment’.Footnote ¹⁴⁶ Given that that conversion therapy is not supported by a number of major religious groups,Footnote ¹⁴⁷ it is possible that support for it will be considered an ‘odd’ belief. Despite developing a number of factors that should be balanced when determining how the reasonable person would behave,Footnote ¹⁴⁸ the standard of care really ‘represents little more than the subjective viewpoint of a particular judge’.Footnote ¹⁴⁹ Judges have readily acknowledged this with Lord Macmillan stating it ‘involves in its application a subjective element’ and that ‘there is room for diversity of view… What to one judge may seem far-fetched may seem to another both natural and probable’.Footnote ¹⁵⁰ This gives judges significant leeway when determining whether conversion therapy is reasonable and, to return to the legal realism perspective outlined earlier in this paper, successful litigation may depend upon the predilection of the individual judge.

(e) Causation

Claimants need to establish that the defendant's breach caused their injury. One difficulty is that people who undergo conversion therapy are likely to have experienced homophobia from other sources such as their family, religion, or community.Footnote ¹⁵¹ Were it otherwise, they would probably not be attempting to change their sexuality in the first place. With mental harm, claimants might struggle to show that it was the defendant's breach, and not the homophobia, that caused their damage.Footnote ¹⁵²

This is not necessarily fatal to a claim. Claimants need not demonstrate that the defendant's breach of duty was the sole, or even the main, cause provided it made a ‘material contribution’ to their injury.Footnote ¹⁵³ In other words the defendant's breach need only be a partial cause. This has been possible in stress at work cases: claimants can succeed if they can demonstrate that their employer's breach of duty contributed to their mental collapse. They do not have to demonstrate that they were living stress-free lives before the employer's breach of duty.Footnote ¹⁵⁴

Brayshaw may also be helpful. The claimant had already suffered from mental health problems before the defendant's religious inculcation, but the defendant's breach still ‘caused or contributed to the deterioration in the claimant's mental health’.Footnote ¹⁵⁵ It is, therefore, possible that those who suffer psychiatric injury as a result of undertaking conversion therapy will be able to establish causation. In cases where a defendant has merely contributed to the defendant's injuries, damages will be apportioned if the injury is divisible.Footnote ¹⁵⁶ Conflict existed in the case regarding whether damages for psychiatric injuries should be apportioned. In Hatton v Sutherland, Hale LJ, as she then was, observed (in obiter dicta) that damages should be apportioned in cases of psychiatric injury due to stress at work.Footnote ¹⁵⁷ In Dickins v O2 plc, Smith and Sedley LJJ disagreed with this viewpoint, albeit this was also obiter. In Smith LJ's opinion, apportionment should only occur where the condition is ‘dose-related’. She believed this is inappropriate in cases of psychiatric injury even where there are multiple causes of the breakdown.Footnote ¹⁵⁸ Psychiatric injury, said Smith LJ writing extra-judicially of Dickins, ‘is par excellence an indivisible injury’.Footnote ¹⁵⁹

In BAE Systems v Konczak Underhill LJ preferred the approach of Hale LJ in Hatton.Footnote ¹⁶⁰ This means that even if individuals can establish that a conversion therapist contributed to their psychiatric injuries, their damages will be reduced if part of their harm was caused by other factors (such as emotional abuse by homophobic parents or bullying by religious peers).

In negligent advice cases, claimants usually must show that they would not have undertaken the conversion therapy if they had been properly warned.Footnote ¹⁶¹ This will be possible in many cases but the courts are wary of hindsight bias.Footnote ¹⁶² Assuming factual causation can be established, there are unlikely to be issues with legal causation (psychiatric injury will be within the scope of the defendant's liability as that type of harm is reasonably foreseeable).

(f) Defences

Theoretically, the claimant's consent to the risk of injury will be a defence but this is rarely successful.Footnote ¹⁶³ In the words of Lord Denning, ‘Knowledge of the risk of injury is not enough. Nor is a willingness to take the risk of injury. Nothing will suffice short of an agreement to waive any claim for negligence’.Footnote ¹⁶⁴ This will be a high threshold for the defendant to reach. Most people undergoing conversion therapy will not have agreed to waive any claim for psychiatric injury caused by negligence if they have not been properly informed about the risks in treatment. Furthermore, it is doubtful that such claimants will be considered contributorily negligent as this defence is rarely successful in a healthcare setting.Footnote ¹⁶⁵

(g) Vicarious liability

Even if the claimant can establish that the defendant has committed a tort, it might not be worth bringing a claim if the therapist cannot pay any damages.Footnote ¹⁶⁶ Most tort claims are brought against insured individuals or companies or organisations (who in most cases will carry insurance or at least have deep pockets).Footnote ¹⁶⁷ Vicarious liability, which holds a person strictly liable for the torts of another, is practically important for claimants as it enables them to target a solvent party capable of paying any compensation award. In Mohamud v WM Morrisons Supermarkets plc Lord Toulson said,

A claimant may be able to sue a religious organisation providing conversion therapy. Faith healers volunteering for religious organisations may be ‘akin to employees’ (and so the relationship requirement might be satisfied) and the attempts at conversion may be within the field of activities entrusted to the ‘employee’ so that it is fair that the ‘employer’ is liable.Footnote ¹⁶⁹

It might be more difficult in other settings. In Brayshaw it was held that the locum doctor was an independent contractor. As he was not an employee (or akin to an employee) and the torts were not committed in the course of employment, the GP practice was not vicariously liable. Among the reasons given were the fact that the religious inculcation and activities took place away from the place of employment, the promotion of Christianity was not an activity undertaken on behalf of the defendant GP practice, nor was it part of their business activities.Footnote ¹⁷⁰ By engaging the locum GP the defendants had not created or enhanced the risk of this tort being committed.Footnote ¹⁷¹ The judge concluded, ‘it is necessary to stand back and look at the overall fairness and reasonableness of imposing vicarious liability…I cannot see that religious proselytization can fairly be regarded as a reasonably incidental risk to the business of carrying on a doctors' surgery’.Footnote ¹⁷² Therefore if professionals administering conversion therapy are on a ‘frolic of their own’ then their ‘employer’ will not be vicariously liable. Counterintuitively, this may make it more difficult to obtain compensation from a professional than from a ‘faith healer’ ‘employed’ by a religious organisation.

(a) Intentional infliction of harm

The rule in Wilkinson v Downton Footnote ¹⁷⁴ (sometimes referred to as the tort of ‘wilful infringement of another's right to personal safety’ or ‘intentionally inflicting harm’) involves intentional interferences with the person. Unlike trespass to the person it is not actionable per se and encompasses indirectly inflicted injuries.Footnote ¹⁷⁵ The Supreme Court in O v Rhodes clarified that this tort has three elements: a conduct element, a mental element and a consequence element’.Footnote ¹⁷⁶ It requires:

1. (a) words or conduct directed at the claimant for which there is no justification or excuse;

2. (b) an intention by the defendant to cause at least severe mental or emotional distress; and

3. (c) that the claimant suffers a physical injury or a recognised psychiatric illness as a result of the defendant's words or conduct.Footnote ¹⁷⁷

Let us assume that the third requirement is met and the claimant suffers a physical or psychiatric injury. The first requirement might not prove to be too much of a hurdle. For example, administering emetic drugs that make the claimant ill, false words or a mock funeralFootnote ¹⁷⁸ might all be considered ‘words or conduct directed at the claimant for which there is no justification or excuse’. In C v WH Footnote ¹⁷⁹ the defendant had, among other things, groomed and sexually assaulted the claimant. It was held that the defendant had ‘acted unjustifiably towards the laimant by emotionally manipulating her’.Footnote ¹⁸⁰ Emotional manipulation by conversion therapists would satisfy this requirement.

A more significant difficulty for claimants will be the second requirement. The conversion therapist may not have the intention to cause at least severe mental or emotional distress. Providers of conversion therapy are not always driven by homophobia, religion or malevolence. A 2009 study explored the attitudes of professionals who had conducted conversion therapy.Footnote ¹⁸¹ Some reasons given were that ‘working to help the person accept their feelings but manage them appropriately may be the best approach if (the) person felt they would lose God and therefore their life was not worth living’ and that the ‘client knows best’.Footnote ¹⁸² Admittedly, helping someone accept their feelings might not necessarily involve conversion therapy but it could be if it encouraged a person to suppress the expression of their sexuality.Footnote ¹⁸³

It is true that some judges have been flexible in this inquiry. In C v WH Sir Robert Nelson held that the mental element was satisfied even though the defendant's intention was his own sexual gratification. He said:

Even if a conversion therapist's main aim is not to cause severe distress, it may be so obvious that harm would result from this type of therapy that this element will be satisfied.

Contrary authority indicates that this may not be the case. Although the negligence claim in Brayshaw (discussed earlier) was successful, a claim under the rule in Wilkinson v Downton failed. With the latter, Martin Spencer J held that the defendant lacked the requisite intention to cause the claimant at least severe emotional distress:

Conversion therapy may be considered more akin to a doctor acting unprofessionally and proselyting his religious beliefs than grooming and sexual assault. If so, the intention element may not be satisfied and a claim under the rule in Wilkinson v Downton will not succeed.

(b) Harassment

Might conversion therapy constitute harassment contrary to the Protection from Harassment Act 1997? This statute states that a defendant commits a tort if they engage in a course of conduct which amounts to harassment of the claimant, and which the defendant knows or ought to know, amounts to harassment of the claimant.Footnote ¹⁸⁶

It may assist a claimant hoping to sue a conversion therapist. The therapist may have engaged in a course of conduct that has caused distress to the claimant.Footnote ¹⁸⁷ Yet in Brayshaw, the harassment claim was unsuccessful. Martin Spencer J held the concept of harassment required the conduct to be ‘unwelcome’Footnote ¹⁸⁸ but that the claimant ‘was enthusiastic about, and embraced, the attentions of [the defendant]’.Footnote ¹⁸⁹ If claimants seek out conversion therapy, it will be hard for them to argue that providing them with it constitutes harassment. An action under the Equality Act 2010, which protects against harassment due to certain protected characteristics (including sexual orientation), would not assist claimants for similar reasons: it too is concerned with ‘unwanted’ contact.Footnote ¹⁹⁰

(c) Deceit

In some US states, consumer protection laws have been used to bring claims against conversion therapists.Footnote ¹⁹¹ The National Centre for Lesbian Rights (NCLR) filed a claim against a marriage and family therapist, Willey, on behalf of a lesbian, McCobb, he had tried to convert. In a press release they stated, ‘McCobb paid Willey more than $70,000 for eight years of therapy based on fraudulent, harmful lies’Footnote ¹⁹² and that this violated California's consumer protection laws. A New Jersey case resulted in the shutting down of a gay conversion organisation, JONAH (Jews Offering New Alternatives for Healing).Footnote ¹⁹³ The group was found to have violated New Jersey's consumer fraud protections and ordered to pay damages to people who had undergone the therapy. A permanent injunction was also granted to prevent them undertaking such ‘therapy’ in the future.

In England, fraud might constitute the tort of deceit. The requirements for this tort have been summarised by Viscount Maugham in Bradford Third Equitable Benefit Building Society v Borders:Footnote ¹⁹⁴

An action in deceit might succeed against conversion therapists. They often make false representations to consumers, such as saying that conversion therapy is proven to work. An intention on the part of the defendant that the claimant should act in reliance of the false representation may also be present. After all, they are trying to convince the LGBT+ individual to change. Furthermore, the claimant may suffer damage as a result of relying upon the representation. For the damage requirement, Hazel Carty maintains: ‘Although predominantly financial harm will be the damage alleged in this tort, physical harm (including personal injury, mental distress and even inconvenience) is covered’.Footnote ¹⁹⁶ John Murphy agrees, stating the tort is ‘grossly mischaracterised when it is portrayed as a purely economic tort’.Footnote ¹⁹⁷

Nonetheless, the false statement must be made dishonestly, or at least recklessly as to whether it is true or false.Footnote ¹⁹⁸ This is a high hurdle for claimants to overcome. It will not be enough to demonstrate that the defendant was careless in making the false statement. In Le Lievre v Gould,Footnote ¹⁹⁹ Lord Esher said that because a charge of fraud is a ‘terrible thing to bring against a man…it cannot be maintained in any court unless it is shown that he had a wicked mind’.Footnote ²⁰⁰ In some cases conversion therapists will knowingly mislead clients but in others they might – misguidedly – but honestly believe that conversion therapy works. If the latter is the case then a claim in deceit will fail.Footnote ²⁰¹