Care Workers on Sick Leave Remain “Involved in Care” Under SOA 2003 s.42(3): “Functions to Perform” Is a Status Test, Not a “On-Shift” Requirement

1. Introduction

R v Culverwell ([2026] EWCA Crim 203) concerns the scope of the care-worker sexual offences in the Sexual Offences Act 2003, particularly s.38 (sexual activity with a person with a mental disorder by a care worker) and the definitional provision s.42 (“involved in B’s care”).

The appellant, a community psychiatric nurse employed by an NHS Trust, engaged in extensive sexual activity with a patient with diagnosed mental disorders. The key factual premise for the appeal was not whether the sexual activity occurred (it was accepted), but whether it occurred at a time when the appellant was a “care worker” within s.38(1)(e), given that much of the conduct took place while he was off sick on full pay and allegedly had no clinical duties or expectation of patient contact.

The appeal against conviction targeted a trial ruling that (i) whether s.42(3) encompassed care workers on sick leave was a question of law for the judge, and (ii) on the undisputed facts the appellant fell within s.42(3). The appellant contended this unlawfully withdrew his only defence. He also sought leave to appeal sentence as manifestly excessive.

2. Summary of the Judgment

  • Conviction appeal dismissed: The Court of Appeal held that s.42(3) includes care workers on sick leave. The statutory phrase “has functions to perform” does not require the care worker to be performing those functions (or to be “on shift”) at the time of the sexual activity.
  • Judge/jury allocation: Interpreting the statutory scope of s.42(3) was a matter of law. Once the legal meaning was fixed, there was no live factual issue for the jury on the agreed facts.
  • s.42(4) observation: The Court noted that, unlike s.42(3), whether a defendant is a “provider of care” under s.42(4) may depend on disputed conduct and can therefore raise a jury question; but the appeal did not require a determination because s.42(3) sufficed.
  • Sentence appeal refused: The overall concurrent term of 7 years’ imprisonment was not arguably manifestly excessive given the volume, seriousness, and aggravating features of the offending, and the need for concurrency to reflect totality.

3. Analysis

3.1 Precedents Cited

R v Fouad Kakaei [2021] EWCA Crim 503

This authority was cited for the proposition that a guilty plea does not bar an appeal where a judicial ruling has removed the defendant’s only defence. The Court accepted (as common ground) that the appellant could challenge convictions entered on guilty pleas because the ruling on s.42(3) was said to have compelled the re-arraignment pleas. The case therefore framed admissibility of the conviction challenge, enabling the Court to reach the substantive statutory interpretation issue.

R (on the application of O) v Secretary of State for the Home Department [2022] UKSC 3; [2023] AC 255

The Court used this Supreme Court guidance to articulate orthodox principles of statutory interpretation: primacy of the statutory text, read in context, in a way that best reflects ordinary meaning and legislative purpose (as an objective concept). This precedent underpinned the Court’s method in reading “has functions to perform” as a status-based criterion, not a requirement of contemporaneous performance.

R v Manning [2020] EWCA Crim 592 and R v Ali [2023] EWCA Crim 232

These cases were referenced in the sentencing remarks to situate mitigation (e.g., lack of previous convictions; medical issues) and the approach to assessing seriousness for offences involving abuse of trust and vulnerability. While not used to develop new sentencing doctrine, they were part of the calibration of the sentencing exercise and informed the judge’s evaluation of mitigation against substantial aggravation.

3.2 Legal Reasoning

(a) The statutory architecture: s.38 anchored to s.42

Section 38 criminalises sexual touching where, among other elements, “A is involved in B’s care in a way that falls within section 42” (s.38(1)(e)). Section 42 then specifies different pathways by which that “involvement” can be established. The Court focused on s.42(3), the NHS patient pathway, which applies where B is an NHS patient and A “has functions to perform ... in the course of employment which have brought A or are likely to bring A into regular face to face contact with B.”

(b) “Has functions to perform” is not “is performing functions now”

The appellant’s core submission equated sick leave with falling outside s.42(3) because he was not then providing care and was not expected to see patients. The Court rejected that reading as misdirected: s.42(3) does not say “is performing” functions at the time of the sexual act; it asks whether the defendant has functions to perform as an employee, and whether those functions have historically brought (or are likely to bring) the employee into regular face-to-face contact with the patient.

On the Court’s reading, the temporal requirement in s.38(1)(e) (“is involved”) demands that the relevant status/relationship exists at the time of the sexual activity, but s.42(3) supplies that status by reference to the existence of employment functions with the relevant contact nexus—not by reference to being on duty at that moment.

(c) Legislative purpose: abuse of a position of trust

A central theme of the reasoning is that the “gravamen” of s.38 is abuse of trust and confidence inherent in care relationships. That abuse exists whether sexual activity occurs on-shift or off-shift. Interpreting sick leave as a carve-out would, in the Court’s view, subvert the statutory aim: it would create an “impunity window” for care workers to exploit patients simply by arranging leave.

The Court reinforced this by noting the breadth of “functions” (supported by the Explanatory Notes example of a receptionist), demonstrating that Parliament drafted the provision to capture a range of roles linked to patient contact and institutional trust, rather than only those delivering hands-on treatment at the moment.

(d) Judge vs jury: law first, then facts (if any)

The Court drew a distinction between:

  • Question of law: what s.42(3) means and whether it is capable of covering sick leave; and
  • Question of fact: whether, on the evidence, the defendant meets the legally-defined criterion.

Because the relevant facts were agreed/undisputed (continued employment; prior regular face-to-face contact; sick leave on full pay; no termination of employment), there was no factual issue to leave to the jury. The appellant’s challenge was characterised as disputing the legal effect of settled facts, which the judge was entitled to determine.

(e) The Court’s handling of s.42(4)

The Court indicated that s.42(4) is structurally different: it asks whether A is “a provider of care, assistance or services” (even outside employment) and therefore turns more directly on the defendant’s conduct. Where conduct is disputed, s.42(4) may present a jury issue. This distinction is important: the Court’s decision is not that all s.42 questions are always for the judge, but that statutory meaning is for the judge, and s.42(4) may more often contain disputed factual predicates.

3.3 Impact

  • Clarified reach of s.42(3): The decision establishes a clear rule that sick leave does not, without more, remove “care worker” status for s.38–s.41 offences where the employment functions (historically/likely) bring regular face-to-face contact with the patient.
  • Prevents “leave-based” loopholes: The Court’s purposive reading blocks an argument that defendants can avoid liability by arranging encounters outside contracted hours, on holiday, or while signed off.
  • Trial management: Where facts about employment status and contact nexus are not in dispute, judges may determine applicability of s.42(3) as a matter of law (and may withdraw the issue from the jury). Conversely, where there are genuine disputes (e.g., whether functions existed, whether they were likely to bring regular contact, whether employment had effectively ended), factual questions may remain.
  • s.42(4) litigation: The Court’s brief guidance foreshadows that “provider of care” arguments under s.42(4) may require careful jury directions where the defendant’s conduct during a period of alleged disengagement is contested.

4. Complex Concepts Simplified

Statutory interpretation
The court deciding what Parliament’s words mean, primarily from the text, read in context and consistent with the statute’s purpose.
“Has functions to perform” (s.42(3))
A status/role test: whether the person’s employment includes duties linked to regular face-to-face patient contact (past or likely). It is not limited to moments when the person is actively carrying out those duties.
Abuse of a position of trust
The wrongdoing is exploiting the professional relationship and the patient’s vulnerability; the legal concern persists even if the sexual activity occurs away from work.
Newton hearing
A procedure to resolve disputed facts relevant to sentence after a guilty plea, where the judge makes findings on the contested basis of plea.
Totality and concurrent sentences
When there are multiple offences, the court must ensure the overall sentence is proportionate. If sentences run concurrently, the lead sentence must still reflect the overall criminality.
Sentencing categories (e.g., “1A”, “2A”)
Guideline seriousness groupings that provide a starting point and range, which the court then adjusts for aggravating/mitigating factors and multiple counts.

5. Conclusion

R v Culverwell establishes that for the SOA 2003 care-worker offences, s.42(3) captures an NHS care worker even while on sick leave, provided the worker remains employed with functions that have brought (or are likely to bring) regular face-to-face contact with the patient. The Court treats the key question—what s.42(3) means—as one of law, leaving only genuinely disputed factual predicates (if any) for the jury.

The decision strengthens the protective purpose of ss.38–41 by ensuring the criminal law targets the continuing power imbalance and trust inherent in care roles, and prevents defendants from exploiting administrative status (leave, sickness absence, off-duty time) as a route to immunity.