Search Legislation

Mental Health (Care and Treatment) (Scotland) Act 2003

Section 311: non-consensual sexual acts

617.Section 311 creates an offence of engaging in a sexual act, as defined in subsection (2), with a patient who does not consent or is incapable of consenting to that act by reason of his or her mental disorder. It applies to any patient of either gender, whatever his or her type of mental disorder (unlike section 106 of the 1984 Act, which was restricted to sexual intercourse and could only be committed by a man on a mentally impaired woman).

618.A patient will be regarded as not having consented to a sexual act where the purported consent has been given as a result of the patient being frightened, threatened, intimidated or tricked.

619.Subsection (5) provides a defence to an accused who can prove that they did not know and could not reasonably be expected to know both that the patient had a mental disorder and was incapable of consenting.

620.Subsection (7) also makes it an offence for another person to assist or encourage a person to carry out such a sexual offence.

621.The section provides the levels of penalties applicable to these offences.

Back to top


Print Options


Explanatory Notes

Text created by the Scottish Government to explain what the Act sets out to achieve and to make the Act accessible to readers who are not legally qualified. Explanatory Notes were introduced in 1999 and accompany all Acts of the Scottish Parliament except those which result from Budget Bills.


More Resources

Access essential accompanying documents and information for this legislation item from this tab. Dependent on the legislation item being viewed this may include:

  • the original print PDF of the as enacted version that was used for the print copy
  • lists of changes made by and/or affecting this legislation item
  • confers power and blanket amendment details
  • all formats of all associated documents
  • correction slips
  • links to related legislation and further information resources