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CHAPTER 12: LEARNING DISABILITY AND LAW

SIDHARTHA TEWARI

People with learning disabilities are a vulnerable group who are at risk of being exploited at different stages in their lives. A caring society has the responsibility to ensure that its most vulnerable members are appropriately cared for. This means that every country may have a unique set of principles to care for these people. In this chapter, it is intended to look at the legal aspects which govern public services in the discharge of their duties to people with learning disabilities in United Kingdom.

HISTORICAL OVERVIEW

A distinction was drawn, as early as the fourteenth century,  between temporary and permanent forms of mental disability. The King's prerogative was set out in a Statute, De praeroative regis , in 1325 to “protect the land of  idiots (i.e. natural fools ) and take the profits of them and provide for their necessities, and to render the lands on their deaths to their right heirs; and to provide for safe keeping of the lands of lunatics (i.e.  persons of unsafe mind ) so that the lands might be restored to them on recovery or to their representatives on their death”. In the sixteenth century, the principle concern about people with learning disabilities was the management  and disposal of  inherited land. To this end, tests such as the “Fitzherbert's test” (the ability to count twenty pence and give one's name and the name of one's parents ) were used to decide if the person had sufficient common sense to care for their estates. 

 Health Legislation

The Elizabethan Poor Law provided some assistance for people with learning disabilities and other disadvantaged sections of society. However,  with the growing number of unattached people drifting into towns, there came a necessity to register and restrict the mobility of such people. The workhouse served this purpose to some extent, a trend consolidated by the creation of  institutions for the care of those with mental illnesses and  learning disabilities. The 1886 Idiots Act provided for residential care for people with learning disability in order to give them asylum and refuge. The 1913 Mental Deficiency Act greatly increased the number of people with mild learning disabilities (the "feeble minded") detained in institutions. At that time it was believed that such men would be exploited or lead a life of crime if they did not live in the protective environment of an institution. Similarly, women were regarded as needing protection from sexual exploitation. The sexes were strictly segregated within institutions. The National Health Service Act of 1949 recognised the need for both training and day care for people with learning disabilities. It was not until the 1959 Mental Health Act and the introduction of informal admission (recommended by the 1957 Royal Commission ) as opposed to compulsory detention, that substantial numbers of people with learning disability were free to live in the community. The 1983  Mental Health Act  further restricted the use of compulsory detention.

The Community Care Act of 1991, strengthened the  move to care in the community for people with learning disabilities. The Act emphasised  "social care" and collaboration between health, local authority and private and voluntary agencies.

Educational legislation

In the late Nineteenth century, emphasis was placed on the schooling of the general population and, later, to the rights of children with learning disabilities to obtain an education. In 1876, The Elementary Education Act compelled all parents to send their children to school between the ages of 5 to 14, unless there was no school within two miles or the child was sick or otherwise unavoidably unable to attend. By 1899 school authorities were empowered to ascertain which children were "defective" and as such unable to profit from ordinary schools, but able to benefit from special classes or schools. The period of special schooling was designated from 7 to 16 years of age . This was changed by the 1944 Act  which introduced the term “educationally subnormal” for those labelled previously as “mentally defective”. It was not until  1970 that  children with severe learning disabilities (previously denied an education as they were regarded as ineducable) became the responsibility of education authorities with The Education (Handicapped Children) Act. The 1981 Education Act introduced the term "special needs" and recommended integration into ordinary schools where possible.

LEARNING DISABILITY AND THE MENTAL HEALTH ACT

Usually patients are admitted to hospitals for treatment with their explicit consent. However, if they are unable to do so due to a “mental disorder”, their admission is governed by the Mental Health Act.  In the Act, mental disorder is defined  as mental illness, arrested or incomplete development of  mind, psychopathic disorder and any other disorder or disability of the mind. The Mental Health Acts of England and Wales (1983) and Scotland (1984) both recognise differences between two types of mental disorder related to the severity of learning disability - Mental Impairment and Severe Mental Impairment. These are not clinical diagnoses but legal concepts.

Mental Impairment is defined as “a state of incomplete development of mind (not amounting to severe mental impairment) which includes significant impairment of intelligence and social functioning and is associated with abnormally aggressive or seriously irresponsible conduct” Severe Mental Impairment is a “state of arrested or incomplete development of mind which includes severe impairment of intelligence and social functioning and  is associated with abnormally aggressive or seriously irresponsible conduct”.

The two  other categories specified by the Mental Health Act 1983 (in England and Wales; the equivalent Act in Scotland was passed in 1984)  are Mental Illness and Psychopathic disorder. The Act does not give a definition of “mental illness” leaving this as a matter for clinical judgement. Psychopathic Disorder is defined as “a persistent disorder or disability of mind  (whether or not including significant impairment of intelligence) which results in abnormally aggressive or seriously irresponsible conduct”. Those with Mental impairment and Psychopathic disorder are not liable to detention under the Mental Health Act 1983 unless it can be shown that medical treatment is likely to alleviate or prevent a deterioration of their condition.

The  Mental Health Act, 1983 deals with “reception, care and treatment of mentally disordered patients, the management of their property and other related matters” and  is divided into parts and sections. The following sections deal with compulsory admissions to a hospital for the assessment and treatment of a mental disorder. 

Admission for assessment:  Section 2

A person thought to be suffering from a mental disorder may be detained in hospital for a period of 28 days by an  application made  by the nearest relative or an approved social worker, supported by recommendations from two doctors one of whom is a  psychiatrist  or police surgeon approved to do so under section 12 of the Mental Health Act 1983. 

Admission for treatment: Section 3

A person suffering from a mental illness, severe mental impairment, mental impairment or psychopathic disorder of such a nature or degree which makes it appropriate for medical treatment in hospital for reasons of the person’s health or safety or protection of other persons may be detained for treatment for a period of six months in the first instance. The application for the detention must be accompanied by recommendations from two doctors, one of whom must be approved under section 12 of the Act. . It is to be noted that in the case of mental impairment and psychopathic disorder, treatment must have the likelihood of either alleviating or preventing a deterioration . The section can be renewed for a further six months followed by yearly renewals if considered necessary.

Admission for assessment in cases of emergency: Section 4

In cases of extreme urgency where there is insufficient time for detention under section 2, a person believed to be suffering from a mental disorder may be admitted for 72 hours on the recommendation of one doctor and application by an approved social worker or the nearest relative.

Application in respect of patient already in hospital: Section 5

An informal patient who is in a hospital may be detained for 72 hours if it appears to the registered medical practitioner in charge that an application ought to be made for compulsory admission  by an application under subsection 2 , to the hospital managers . A registered mental nurse or a registered nurse in mental handicap may detain an informal patient for 6 hours under subsection 4 if it appears that the patient has a mental disorder to the degree that it is necessary for the health of the patient and safety of others that he is immediately restrained from leaving the hospital and it is not practical to secure the immediate attendance of the medical practitioner.

Warrant to search for and remove patients: Section 135

A Justice of the peace may  empower the  police to enter premises to take a person believed to have a mental disorder to a place of safety for a period of 72 hours.

Mentally disordered persons found in public places: Section 136

The police may take to a place of safety a person who appears to be suffering from a mental disorder for a period of 72 hours.

In the above sections with the exception of section 3, the specific type of mental disorder need not be specified.

Guardianship

Sections 7 to 10 of the Mental Health Act deal with guardianship. The purpose of guardianship is to enable patients to receive community care where it cannot be provided without  the use of compulsory powers. This order requires the person to reside at a specified place; attend at places and at specified times for the purpose of medical treatment, occupation, education or training; and give access to the place where the person subject to the order is living , to any medical practitioner, approved social worker, or other person specified by the guardian.

Two medical recommendations, one by a doctor approved under section 12 and the other from one with previous knowledge of the patient, are required before an approved social worker or nearest relative can make an application. Guardianship does not come into effect until the application  is accepted by the local social services authority responsible for the order. It is important to note that the order does not give any powers to administer medication by force or force the person to attend a specified place. However, If the person leaves the place that he is required to reside without the guardian’s consent then they can be taken into custody and returned. Guardianship applies initially for a period of six months. It is renewable for a further six months and then for a year at a time.

Sections dealing with Criminal Proceedings

Following sections of the Act deal with patients concerned in criminal proceedings or under sentence :

Section 35            Remand for report.

Section 36            Remand for treatment.

Section 37            Hospital or guardianship order.

Section 38            Interim hospital order.

Section 41            Restriction on discharge.

 

Powers of the Home Secretary are summarised in the following Sections:

Section 47            Transfer to hospital of convicted prisoner.

Section 48            Transfer to hospital of untried prisoner.

Section 49            Restriction on discharge.

 

Section 117 After Care

This section  of the Mental Health Act (1983) states that , “It shall be the duty of the health Authority to provide in conjunction with voluntary agencies after-care services for any person to whom this section applies , until such time that the health authority and the local authority are satisfied that the person concerned is no longer in need of such services.” Patients detained under section 3, 37 and 37 and 41 ie a restriction order are subject to section 117. It is the responsibility of the Responsible Medical Officer in conjunction of the multi-disciplinary team to ensure that a care plan is formulated to meet the patients health and social needs.

The Care Programme Approach and The Supervision Register

All patients aged 16 and over who are under the care of specialist mental health services are subject to the Care Programme Approach. This requires the allocation of a Key Worker, an assessment of health and social needs and a care plan agreed by the multi disciplinary team.  The Key worker can be from either of the statutory agencies. The care programme approach is designed to provide a network of care in the community for people with severe mental illness so that they do not lose contact with the health and social services. The Care Programme Approach can be viewed in three tiers:

(1) Minimal CPA,

(2) The CPA Register (including Section 117) 

(3) the Supervision Register.

The first applies to all patients receiving care from specialist mental health services,  the second to a smaller number of patients with a severe and persistent major mental illness who fulfil certain other criteria. The third tier, the Supervision Register was introduced from the 1st April 1994 by a guidance issued by the NHS Management Executive. Its purpose is to identify those people with severe mental illness who may be a serious risk to themselves or to others. It is the task of the clinical teams  to judge the seriousness of the history of violence and the risk of future violence . However,  all patients conditionally discharged from hospital under section 37/41 of the Mental Health Act 1983 should be included on the register. Inclusion on the register is designed to ensure that the patient receives intensive community support.

Supervised Discharge

Supervised discharge was introduced on the 1st of April 1996, following the implementation of the Mental Health ( Patients in the Community ) Act 1995. It applies to patients who are:

(1) sixteen years or over,

AND

(2) unrestricted, liable to be detained under Section 3, 37,47 or 48 of the Mental Health  Act 1983, ( including Section17 leave of absence),

AND

(3) suffering from mental illness, mental impairment, severe mental impairment or psychopathic disorder,

AND

(4) there is substantial risk of serious harm to the health or safety of the patient or the safety of other people, or the patient being seriously exploited, if the patient did not receive after care services under Section 117 of the Act,

AND

(5) supervision is likely to help ensure that the patient receives those services.

 

The supervised discharge must detail the requirements that are imposed on the patient. These can be to require the patient to reside at a specified place; attend a specified place for medical treatment, occupation, education or training; and allow the supervisor , or person authorised by the supervisor, access to the place where the patient is to reside. The supervisor also has the power to convey the patient to a place where the patient is required to live or attend.

Mental  Health Act  Commission

The Mental Health Act Commission (based at Maid Marion House in Nottingham) was introduced by the Mental Health Act 1983. Its main functions are to :

(1) Review the powers of detention under the Act by visiting hospitals and nursing homes and interviewing, in private, detained patients

(2) Appoint independent doctors for the purpose of providing second opinions for Consent to treatment

(3) Keep under review the long term treatment of detained patients

(4) Prepare for the Secretary of State a code of practice for doctors and other staff, on the admission and treatment of patients suffering from mental disorder.

(5) Receive complaints regarding the detention and treatment of patients

(6) Monitor deaths of detained patients

(7)Report biennially to Parliament.

 

The Mental Health Act commission does not have the power to discharge patients from detention.

Mental Health Review Tribunals

Mental Health Review Tribunals deal with applications and references by and in respect of  patients detained under the Mental Health Act. The tribunal consists of three members i.e. a lawyer as chairman, a medical member and a lay member. If the detained patient is a subject of a restriction order then the chairman must be a specially approved judge. It is one of the duties of the medical member of the tribunal to examine the detained patient and the medical notes prior to the hearing. The tribunal has the power to discharge a detained patient if it believes that the patient does not have a mental disorder, or that hospital treatment is not necessary. It can also order a delayed discharge or recommend leave of absence, transfer to another hospital or supervised discharge.  In the case of restricted patients the Tribunal can only order discharge, conditional discharge or delayed discharge.

CONSENT TO TREATMENT

To give valid consent a  person must  be capable of understanding the nature, purpose  and likely effects of treatment . Further, that person must be given the facts of the intended treatment such that he or she can make a decision without coercion.

The Mental Health Act provides the framework for people to receive treatment for a mental disorder if they are unable to consent. The situation is different in the treatment of physical disorders. Before the age of sixteen, the parents or guardians of children with learning disabilities (as with all children) give consent on their behalf. Between 16 and 18 years , the young person’s consent is accepted if they are deemed to have the mental capacity. However if at 18 years, the person with learning disability is not able to give consent  due to incapacity, no one may consent on their behalf. It is considered good practice to involve the parents or other interested parties in the decision making process when deciding whether a particular treatment is in the patient's best interest. For operative procedures, it may be wise to seek a second opinion as to whether a treatment is one that would be endorsed by a representative and responsible body of medical opinion.

Competence to give consent varies among individuals, and it is necessary to treat each case on its own merits. In the case of procedures such as sterilisation which  result in permanent loss of fertility or termination of pregnancy, it may be necessary to seek a court ruling that the proposed treatment is not unlawful.

The December 1997  judgement of the Court of Appeal in the case of  L versus Bournewood Community Trust had tremendous implications for the management of patients who lack  capacity to consent to hospital admissions. L was a man with severe learning disabilities and autism who was admitted as an emergency to a hospital managed by Bournewood Community NHS Trust. He remained in the hospital as an informal patient though he could not give valid consent to do so. The fact that he did not attempt to leave was taken as implied consent. The Court of Appeal ruled that the trust had detained L illegally. The implication of this ruling was that it was unlawful for patients who lack capacity to consent, to be admitted to a hospital to receive treatment for a mental disorder as informal patients  though they show no sign of dissent. Prior to this, it was assumed that it was lawful to treat  persons unable to give valid consent due to learning disability informally if they did not refuse medication or try to leave the hospital. The Bournewood  Judgement resulted in many such patients being detained under the Mental Health Act. However, this decision was reversed by the House of Lords in June 1998. The Law Lords expressed disquiet at the present state of the law regarding this group of people and it is likely that the Government may in the near future, reconsider the issue of consent to treatment in those lacking mental capacity due to learning disabilities or dementia.

SEXUAL RELATIONSHIPS

Under general law sixteen year old men and women may have sexual relationships with the opposite sex. A man is said to be incapable, by law, of having sexual intercourse until he is fourteen regardless of his actual biological capacity. Women may have a homosexual relationship at the age of sixteen. The law is different for men in this respect: the age of consent for homosexual acts being eighteen years (this was recently lowered from twenty-one years by the Criminal Justice Act 1995.) At the age of sixteen years a man or woman can marry if they have parental consent. Without parental consent a couple may marry if they are eighteen.

It is an absolute offence for a man to have sexual intercourse with a girl under the age of thirteen and there can be no legal defence. If the girl were between thirteen and sixteen years, the man could claim in his defence that he believed that he was married to the girl or that he believed that the girl was over the age of sixteen  (and that he was under the age of twenty four and had not been charged with similar offences.)

According to the Sexual Offences Act of 1956, it is an offence for a man to have unlawful sexual intercourse with a woman who is a "defective ". The term “defective” used to describe a person with learning disabilities is defined in the Act as a state of arrested or incomplete development of the mind which includes severe impairment of intelligence and social functioning. It is also an offence for anyone to procure a female "defective " to have unlawful sexual intercourse, or for anyone to take a "defective " away from her parents with the purpose that she shall have unlawful intercourse with that man.  The word "unlawful " is taken to mean  "outside the bounds of matrimony ".

Prosecutions for having sexual intercourse with someone who falls under the legal description of " defective " are rare for a number of reasons. There is a certain amount of discretion available to the police (with regard to bringing charges) and to the Crown Prosecution service (regarding prosecution). The guidance is  that the Crown Prosecutor should take into account the ages of the participants, their relative ages and if there was any element of seduction or corruption in the offences before deciding on prosecuting. Another reason is that it is extremely difficult for a lay person to judge the degree of impairment of intelligence and social functioning of someone who may be a "defective ". Further, a legal defence may be that the person was unaware (or had no reason to suspect) that the woman was a "defective".

The Sexual Offences Act of 1967 also deals with homosexual relationships and men with "severe mental handicap". All other men aged eighteen or over, except those in the armed forces, are legally able to enter into a homosexual relationship in privacy. There is no law making specific reference to relationships between women.

Other aspects of sexuality are addressed in Chapter 13.

PEOPLE WITH LEARNING DISABILITIES AS WITNESSES

Being or victim of a crime can be a terrifying experience for a person without learning disability. Learning problems may make the process even more difficult. Even though a person is a victim of a crime, in the eyes of the law he or she is a witness to that crime and it is Prosecution’s brief to prepare a case against the alleged perpetrator. It is therefore important that the witness is competent and reliable. A person is judged to be a competent and reliable witness if they are able to understand the nature and sanction of the oath and to distinguish between fact and fantasy. This may be difficult for a person with learning disabilities.

The prosecution, the defence, or both, may request reports from expert witnesses such as psychiatrists or psychologists regarding  the suggestibility of a witness. Suggestibility is difficult to quantify, and requires a detailed clinical assessment. Gudjonsson and Gunn 1982 used a method of  multiple interviews, in which questions were asked in later interviews regarding facts in earlier interviews, and also by attempting to induce false perceptions or recollections of these previous interviews. For example they would suggest that blocks shown to the person in a previous interview were black or green whereas in fact they were red or white.

The Police and Criminal Evidence Act  1984

The Act seeks to protect vulnerable people, e.g. those with learning disabilities during the process of interviews by the police.  A person with learning disabilities must not be interviewed or asked to provide or sign a written statement without the presence of an appropriate adult .

An appropriate adult is defined in the code of practice as:

(1) a relative, guardian or other person responsible for the person's care or custody,

(2) someone who has experience in dealing with people with learning disabilities, but is not a police officer or employed by the police ( e.g. an approved social worker ),

(3) some other responsible adult aged 18 or over who is not a police officer or employed by the police.

In some circumstances it may be more useful for all concerned if the appropriate adult is someone who has experience in the care of people with learning disabilities rather than a relative lacking such qualifications. The role of the appropriate adult  is to assist the person with learning disabilities to understand what is said to them by the police. This includes the "caution" which must be repeated in the presence of the appropriate adult if it has already been given previously. The appropriate adult has a duty to interrupt and stop undue harassment of the suspect.

A police officer above the rank of Superintendent may interview a person with learning disabilities with out an appropriate adult being present in case of an emergency when a delay could cause immediate harm to persons or serious loss of or damage to property. Questioning in these circumstances may not continue once sufficient information to avert immediate risk has been obtained.

Fitness to plead

 Fitness to plead is a question that is decided by a jury, with advise from expert witnesses such as a psychiatrist. During trials where the accused has learning disabilities,  this question is often asked. To be fit to plead at the time of trial the person must :

(1)            Understand the nature and possible consequences of the charge .

(2)            Understand the difference between a plea of guilty and not guilty.

(3)        Be able to instruct his or her lawyer.

(4)        Be able to follow the evidence in court.

(5)        Have the ability to object to a particular person becoming a juror at the trial.

 

Each case must be judged on individual merits, but in general, people with severe learning disabilities are unfit to plead. If the person is found not fit to plead being  "Under Disability", then a "Trial of the Facts" is held in the absence of the accused. The outcome of this may be that the jury find the accused either "not guilty " or liable to be dealt with  as a person under disability by admission to a treatment facility on a hospital order with or without a restriction order.

PROPERTY AND PEOPLE WITH LEARNING DISABILITIES

Court Of Protection      

Part VII of the 1983 Mental Health Act (England and Wales) governs the workings of the Court of Protection. This is an office which has powers to manage the estates of people who because they  have a mental disorder are unable to manage their property and financial affairs. The groups of people to whom the court of protection could apply include people with severe learning disability, dementias, and acquired brain damage. The Court of Protection will supervise a mentally disordered person's finances when an application is supported by a medical certificate. In practice, the Court of Protection is more useful when large sums of money are involved as the operations of the court of protection are financed by those who use it. In Scotland the courts may appoint a curator bonis to manage the financial affairs of an incapacitated person.

Wills

To make a valid will (known legally as the person's Testamentary capacity),the person must :

(1) understand the nature and implications of making a will.

(2) have some appreciation of the extent of his estate.

(3) have some appreciation of the people who may have a reasonable expectation of        being beneficiary to the estate (even though he may choose to exclude them ).

 

There is no reason why a person with learning disabilities cannot make a valid will.  Each case must be carefully examined to ensure that  all the requirements are met.

LEARNING DISABILITY  AND CRIME

There are many myths about the relationship between psychiatric disorder and crime. In the area of learning disabilities, some of the common assumptions are even less well founded. Early surveys (Goring, 1913; Goddard, 1920) found that much delinquency could be attributed to " low grade mentality ", but these studies were methodologically unsound, especially with regard to the assessment of intelligence. Sutherland in 1931 examined intelligence scores in the criminal population and found that they were very similar to those of the general population. Norwood and East (1942) studied 4000 juvenile offenders aged between sixteen and twenty and found that the reported I.Q. for the sex offenders was significantly lower than for other offenders.  Woodward (1955 ) concluded that low intelligence by itself  played little or no part in delinquency, except in sexual offences where there was an association. She believed that educational backwardness was a common phenomenon among delinquents of all levels of intelligence. She also drew attention to the social and cultural factors which predispose to delinquency. These factors are also common to some people with mild learning disabilities.

In 1966, Bluglass examined 300 unselected prisoners and found that 2.6% had mental retardation and 11.6% borderline intelligence. He found that the "retarded" prisoners were more likely to be involved with property offences, have a poor work record, misuse alcohol and have high levels of emotional instability. He found " no essential difference between distribution of intelligence among convicted prisoners in general and the normal population, and  was unable to find any specificity between the type of psychiatric disorder and the nature of the crime. Walker and McCabe (1973) studied 1160 offenders subject to Hospital Orders (compulsory admission to hospital for treatment) and found that one third had learning disabilities. One third of the men with learning disabilities accounted for 59 % of the sex offences, most of the victims being children. Amongst the women with learning disabilities, sexual offences tended to be for soliciting, prostitution and incest, implying that they may have been victims as much as offenders. People with mild learning disabilities were under represented among the group involved with serious violent offences. This study also found an association between arson and learning disabilities. Offenders with learning disabilities (both men and women) tended to offend earlier, but their offences tended to be taken less seriously by the courts.

Various studies have examined possible associations between specific learning disability and crime. These studies have included investigations of the prevalence of aggressive and offending behaviour in men with sex chromosome abnormalities. Older studies(Jacobs, 1965; Casey, 1966)  found a higher prevalence of sex chromosome abnormalities such as 47XXY and 47XYY in secure hospitals. It was thus postulated that these chromosomal abnormalities in some way predisposed to criminal behaviour. These findings have been challenged in recent studies with rigorous methodology, such as the one by Ratcliffe in 1994 in Edinburgh.

Phenotypic males with 47 XXY (Klinefelter syndrome) tend to have  low normal intelligence and show an increased vulnerability to some personality disorders and other psychiatric disorders. The current view is that any link between 47XYY and criminality is tenuous. Men with additional Y chromosomes tend to be of above average height and  low normal intelligence. It may be that their disproportionate presence in high security areas is a response of judges to convicted offenders who are tall and of below average intelligence.

Sexual offences

Most sex offenders do not have learning disabilities. However, sex offences are over-represented among offences committed by people with learning disabilities. Approximately one third to one half of offenders with learning disabilities admitted to hospitals are sexual offenders (Day, 1988). Most of the index offences are relatively minor such as indecent exposure. Sexual immaturity and lack of experience are more important aetiological considerations than sexual perversion or sexual deviancy. Often such offenders are shy, rather inept people who lack impulse control. Sometimes they are able only to relate to children and it is in this context that they offend towards children.

Arson

Fire setting is over represented in people with learning disabilities, although it is only a tiny fraction who exhibit this behaviour.  Such offenders are typically men, with a high probability of a disrupted home background and a history of long term behaviour problems. They tend to differ from other offenders in being generally inadequate, passive individuals, usually single, with a history of destructiveness to property and an absence of  aggression towards others (Lewis and Yarnell 1951).

Treatment Facilities

Courts have a variety of options in disposing offenders with learning disabilities. The first is a probation order with a condition that the individual attends a psychiatric outpatient clinic for treatment.  If out patient treatment is not a viable option, the offender may be admitted to a psychiatric or learning disability hospital under a  hospital order ( section 37 ) with or with out restriction ( section 41 ). Some may require secure provision for their treatment as they  pose significant  danger to others or themselves. The degree of security can range from a locked ward in learning disability hospitals, specialist low security units, regional secure units to special hospitals. Of the three special hospitals in England, Rampton Hospital in Retford, Nottinghamshire tends to cater for people with learning disabilities. The Special Hospitals are managed by The Special Hospital Service Authority. Recent enquires have highlighted the need for a change to a more therapeutic environment at Special Hospitals and major reforms are expected.

Risk Taking                                                 

Workers in the field of learning disability have a duty to protect those under their care and prevent harm to others from the behaviour problems, challenging behaviours or  mental illness that their clients may have. However, they also have a duty to uphold their client's rights as  citizens. These conflicting demands mean that carers have to make decisions  after balancing the risks and benefits. Taking risks and the risk of failure are part of growing up. People with learning disabilities should have opportunities to succeed or fail at a task while learning. Someone who has never been given the opportunity to cross a road by themselves can never hope to achieve road sense. Nevertheless, there is a possibility of serious accident or death  occurring in the process of learning and it is on these occasions that an assessment of risk must be undertaken by staff. Another clinical example of assessment of risk may be the decision making process allowing a person with learning disability and sexual offending behaviour unescorted leave from hospital. In this case a carefully thought out risk assessment process is required.

Risk assessment should be as thorough and objective as possible and examine all the possible outcomes ranging from desirable to undesirable (i.e. positive or negative). The risks also have a certain  likelihood or probability  of occurrence. It is unlikely that a numerical value can be given to the likelihood of a particular occurrence but it may be helpful to assign numerical value e.g. 1 for certainty that an event will occur and 0 for it being impossible.

When evaluating a particular risk a decision must be taken as to whether the objective will be of benefit to the person with learning disabilities by enhancing independence, freedom and quality of life. No single person  should have to decide on objectives and risks. These decisions are best taken by a team consisting of different professionals, care staff, managers, advocates and relatives. It is extremely important from a legal point of view that the decisions, the decision making process and the names of the people making  the decisions are recorded for the protection of staff from future litigation.

Health professionals are often expected to make predictions regarding dangerousness to protect patients and others. Risk assessment here will involve a knowledge of:

a)  any previous history of offending behaviour

b)  the nature of previous offences

c)  environmental factors

d)  personality features

e)  the likelihood of successful treatment.

 

Among people with learning disabilities, poor self control, low frustration tolerance,  and emotional detachment to the effects of offences on victims are important indicators of dangerousness. There is evidence that an offender with a record for two offences of a serious nature will commit further offences. However, this is a statistical generalisation and cannot be used to make predictions in individual cases.

CONCLUDING REMARKS

People with learning disabilities appear to have the legal system impinge on many aspects of their lives. However, this is because the society wants to ensure that the most vulnerable people are also able to live as valued members who are not going to be exploited.

REFERENCES

Bluglass, R. A psychiatric study of Scottish convicted prisoners MD Thesis, University of St Andrews, Scotland. 

Casey, M.D. , Blank, C.E. , Street, D.R.K. et al ( 1966 ) XYY chromosomes and antisocial behaviour. Lancet ii: 859-860.

Day, K. ( 1988 ) A hospital based treatment programme for mentally handicapped offenders. British Journal of Psychiatry 153: 635-644.

East, W. N., Stocks, P., Young, H.T.P. (1942) The adolescent criminal : a medico sociological study of 4,000 male adolescents. Churchill, London.

Gudjonsson,G.H. , Gunn,J. ( 1982 ) The competence and reliability of a witness in a criminal court : a case report. British Journal of Psychiatry 141 : 624-627.

Goring, C. ( 1913 ) The English Convict, HMSO, London.

Goddard, H. H.  ( 1920 ) Human Efficiency and the levels of intelligence. Princeton University Press, Princeton.

Jacobs, P.A. , Brunton,M. , Melville, M. M. ,Brittain, R. P. , McClermont, W. F, (1965 ) Aggressive behaviour, mental subnormality and the XYY male. Nature 208: 1351-1352. 

Lewis,N.D.C. , Yarnell, H. ( 1951 ) Pathological fire setting ( pyromania ). Nervous and Mental Disease Monographs. No. 82. Coolidge Foundation, New York..

Walker,N. ,McCabe,S. (1973) Crime and Insanity in England, Vol. 2 : New Solutions and New Problems , Edinburgh University Press: Edinburgh.

Woodward, M. (1955 ) The role of low intelligence in delinquency. The British Journal of Delinquency 5 : 281-303.

 FURTHER READING

 Ashton, G. , Ward, A., Mental Handicap and the Law. Sweet & Maxwell. 

 Bluglass, R.A. & Bowden, P. ( Editors ) Principles and Practice of Forensic Psychiatry 1990. Churchill Livingstone.

 Bluglass, R. A.,  A Guide to Mental Health Act 1983, Churchill Livingstone.   

 Companion to Psychiatric Studies. Fifth Edition. (eds ) Kendell & Zealley. Churchill Livingstone.

 Gunn, M. J. , Sex and Law. 3rd Edition. Underhill.

 Jones, R.,  Mental Health Act Manuel. 1996. Sweet & Maxwell

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