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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
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
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
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:
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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
Maudsley. The Maze, Mental Health Act 1983,
Guidelines. Sponsored by Smith, Kline & Beecham.
Mental Health Act 1983. HMSO. London.
Mental Health Act 1983. Code of Practice. (
1993 ) . HMSO. London.
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