The Legal Framework For Protecting Vulnerable Adults

The regulations relating to the ill-treatment of vulnerable adults with learning disabilities are often complex and not always easy to understand. However, laws are in place which can be used either to protect vulnerable adults or to act on their behalf if a crime or offence has been committed against them. It does require carers, students and professionals to have some knowledge of the law and knowledge of whom to contact for further assistance. If a criminal offence is suspected, it should always be referred to the police. Advice should always be sought from senior colleagues and managers on the next stages that should follow. 'Doing nothing' is not an option.

The sections outlined below are based on the definitions outlined in the No Secrets guidance (Department of Health 2000). The following list is not complete, but is meant to denote laws that can help and support vulnerable adults with learning disabilities, and offer them protection within a legal framework.

PHYSICAL ABUSE Assault

An offence of common assault is committed when a person assaults another person. Assault also takes account of both behaviour and language, so that any acts or words in connection with the use or threat of immediate violence to another person may signify assault.

Battery

An offence of battery is committed when a person intentionally and recklessly applies unlawful force to another. It carries a maximum penalty of six months' imprisonment and/or a fine not exceeding the statutory maximum.

Assault occasioning actual bodily harm: section 47 of the Offences Against the Person Act 1861

This is defined by the degree of injury and the sentences available to the court. A key factor here would be:

'b. the vulnerability of the victim, such as when the victim is elderly, disabled or a child assaulted by an adult . . . the charge will normally be assault occasioning actual bodily harm.'

(Assault Occasioning Grievous Bodily Harm, sections 18 and 20, Offences Against the Person Act 1861)

Affray: section 3(1) of the Public Order Act 1986

This offence involves the use of threatening violence to another person and the other person fearing for his/her personal safety.

Fear or provocation of violence: section 4(1) of the Public Order Act 1986

This may involve threatening, abusive or insulting words and behaviour to another person, or threatening, abusive or insulting signs, writing or other visible representations that provoke unlawful violence or where the other person fears that unlawful violence will be used against them.

Restraint or the threat of restraint can amount to an assault or battery. It can also include any practice involving physical force, such as force-feeding. In addition, the human rights of the person may also be infringed, under the Human Rights Act 1998.

The detention of an adult against his/her wishes can constitute false imprisonment. In addition, specific guidance exists to protect adults with learning disabilities from physical restraint, as outlined by Harris et al. (1996). In addition, further advice suggests that:

'Professionals working with vulnerable people have a duty of care to ensure that in this context it means a need to avoid actions that may harm others, and that the agencies they work for act always in the best interest of the service user. Also, the framework provided by criminal and civil law should ensure that people can live without "interference from others" including for example assault or false imprisonment.'

(Powell & Northfield 2002)

These laws can offer a measure of protection for adults with learning disabilities if the incidents are reported as crimes and prosecuted effectively. Identifying and supporting adults with learning disabilities who are vulnerable as victims or perpetrators of crime by police officers are also problematic, with many police officers' relying on intuition and appearance, amongst other unreliable factors (Fearns 2001). When combined with some professionals working within the criminal justice system's having a limited understanding of the needs of disabled adults, it is not difficult to understand why some believe that they will not be 'credible' witnesses. As Clare and Murphy (2001) point out, too:

'. . . people with learning disabilities themselves need to be empowered to recognise, and respond to crime and other types of anti-social behaviour against themselves or others'.

SEXUAL ABUSE Sexual Offences Act 2003

The Sexual Offences Act 2003 came into force on 1 May 2004, following extensive consultation and developing from the White Paper, Protecting the Public (Department of Health 2002). The main purpose of the act is to modernise and strengthen the law relating to sexual offences; add enhanced pre-ventative measures; and protect individuals from sexual offenders. It also contains a new definition of 'consent':

'. . . a person consents if she/he agrees, by choice and has the freedom and capacity to make that choice.'

(Sexual Offences Act 2003, section 74)

The Sexual Offences Act places the emphasis on victims first. It contains new offences in which the victim is considered to have a mental disorder, and it targets a wider range of exploitative behaviours. These include: sexual touching including penetration, causing/inciting a person to engage in sexual activity, engaging in sexual activity in their presence, causing a person to watch the action. The act uses the current definition of 'mental disorder' from the Mental Health Act 1983, which is:

'Mental disorder means mental illness, arrested or incomplete development of mind, psychopathic disorder and any other disorder or disability of mind and "mentally disordered" shall be construed accordingly.'

A person with a learning disability falls within the definition of mental disorder.

To prove that a person has a mental disorder, medical evidence will usually be required.

Offences involving sexual activity when mental disorder impedes choice are covered in sections 30-33, and primarily relate to profoundly disabled people. The defendant has to have knowledge of the victim's mental disorder, prior to conviction. This can either be specific knowledge or reasonable knowledge. If the victim is unable to refuse because of insufficient understanding or is unable to communicate, the defendant will receive a tough sentence.

Sections 34-37 relate to mental disorder, where inducement, threats or deception are used to procure sexual activity. In this instance, the issue of consent is irrelevant, but the defendant must have knowledge of the person's mental disorder.

Sections 38-41 relate to sexual activity between a person with a mental disorder and a care worker. A relationship of care, involving regular face-to-face contact, needs to be established, whether the person is employed or not. It is presumed that the defendant knows that the victim has a mental disorder. The prime function of these offences relates to the prosecution of those who have the capacity to consent, but, due to their mental disorder, may allow sexual activity only because they are predisposed to do so by their intimacy with and/or dependency on the carer. A defence can be mounted where there is a pre-existing sexual relationship, or where lawfully married (Pringle 2006).

The Sexual Offences Act 2003 means that there is stronger management of convicted sex offenders in the community. There is the Sexual Offences Prevention Order and the Risk of Harm Order. Both are civil orders, but if they are breached, they become criminal offences.

PSYCHOLOGICAL ABUSE

Harassment: section 1 of the Protection from Harassment Act 1997

This states that one individual must not pursue a course of conduct which amounts to harassment of another individual and which the person knows, or should know, amounts to harassment of the other person.

To bring a criminal prosecution, a 'course of conduct' must involve such behaviour on at least two occasions. Such behaviour can include verbal abuse. Civil action can also be taken by obtaining an injunction against the harasser (section 3). This is irrespective of whether a prosecution is brought against the harasser, or if previous harassment has taken place.

Under section 4 of the same act, a course of behaviour that on at least two occasions causes another person to fear that violence will be used against him/her can be an offence. In this case, the court has the power to issue a restraining order or injunction against the offender.

Under section 4A of the Public Order Act 1986, an offence is committed when a person intends to cause another harassment, alarm or distress by:

• 'using threatening, abusive or insulting words or behaviour, or disorderly behaviour, or

• displays any writing, sign or other visible representation which is threatening, abusive or insulting, thereby causing that or another person harassment, alarm or distress.

Section 5 covers similar offences without intent.

The Crime and Disorder Act 1998 allows for Anti-Social Behaviour Orders (ASBOs) to be applied for directly, by either the police or the local authority in consultation with each other. These may be particularly effective where adults with learning disabilities are being victimised by neighbours in their local community and, if these are breached, further action can be taken.

FINANCIAL/MATERIAL ABUSE

Theft is the dishonest appropriation of property belonging to another, with the intention of permanently depriving the owner of it (Theft Act 1968, section 2). Theft and dishonesty have to be proven. Under section 8 of the same act, robbery is theft aggravated by the use or threat of force.

Deception

There are a number of offences involving deception under the Theft Act 1968. These include obtaining property by deception and obtaining a pecuniary advantage by deception.

If a vulnerable adult with a learning disability is persuaded to enter into a contract that is clearly detrimental, such deception will usually annul the contract. The other party that persuaded the vulnerable adult could be charged with obtaining property by deception or obtaining a pecuniary advantage by deception.

Blackmail: section 21 of the Theft Act 1968

'A person is guilty of blackmail if, with a view to gain for himself or another or with intent to cause loss to another, he makes any unwarranted demand with menace; and for this purpose a demand with menaces is unwarranted unless the person making it does so in the belief:

(a) that he has reasonable grounds for making the demand; and

(b) that the use of menace is a proper means of reinforcing the demand.'

NEGLECT/OMISSION

The Mental Capacity Act 2005 became law on 7 April 2005, but will not be implemented until April 2007. The preamble to the act describes it as:

'An Act to make new provision relating to persons who lack capacity; to establish a superior court of record called the Court of Protection in place of the office of the Supreme Court called by that name; to make provision in connection with the Convention on the International Protection of Adults signed at the Hague on 13th January 2000; and for connected purposes.'

It provides a statutory framework to empower and protect vulnerable adults who may not be in a position to make their own decisions. Guidance on the act will be provided in a Statutory Code of Practice.

The Mental Capacity Act 2005 is underpinned by five key principles. These are:

• a presumption of capacity;

• the right for individuals to be supported to make their own decisions;

• the right for individuals to make what might be seen as eccentric or unwise decisions;

• least restrictive intervention of their basic rights and freedoms.

'The Act enshrines in statute current best practice and common law principles concerning people who lack mental capacity and those who take decisions on their behalf. It reforms and updates current statutory schemes for enduring powers of attorney and Court of Protection receivers.'

(Mental Capacity Act 2005)

The Mental Capacity Act 2005 also introduces a new criminal offence of ill-treatment or neglect of a person who lacks capacity. If found guilty, a defendant could expect a prison term of up to five years.

The issue of restraint is also covered in this act. It will be necessary to demonstrate that restraint is required to prevent harm, and that such restraint must be proportionate in terms of degree and duration of restraint. The onus is on the person carrying out the act of restraint to justify his/her belief that the person being restrained will suffer harm unless restrained. This can strengthen the protection afforded to adults with learning disabilities from physical restraint; this principle follows the spirit of Article 8 of the European Convention on Human Rights.

The National Assistance Act 1948, amended by the National Assistance Act 1951, under section 47, allows for the removal of people in need of care and attention. The criteria that need to be met are as follows, the:

• person is suffering from grave chronic disease or being aged and infirm or physically incapacitated, is living in insanitary conditions, and

• is unable to devote to themselves, and is not receiving proper care and attention

• removal from home is necessary, either in own interests, or preventing injury to health of, or serious nuisance to, other persons.

(National Assistance Act 1948, amended by the National Assistance Act 1951)

The community physician, through the district council, applies, in writing, to the Magistrates' Court to remove the person from his/her home to ensure that s/he receives the care and attention that s/he requires. Although not used often, in can be used in cases in which there is serious neglect or self-neglect, but, under the Human Rights Act 1998, the power to detain a person for up to three weeks, without prior notice, may be deemed as infringing the person's human rights.

Section 287 of the Public Health Act 1936 does give local authorities the means to gain a warrant to enter and clean premises which represent a public health risk. This can be used to protect vulnerable adults who are unable to care for themselves or their accommodation to a 'reasonable' standard.

The Mental Health Act 1983 allows certain entry and inspection rights where it is believed that a person suffering from a mental disorder is living, if it is believed that s/he is not being cared for appropriately.

Under section 115 of the Mental Health Act 1983, an Approved Social Worker (ASW) may enter and inspect any accommodation where a person with a mental disorder is living, if s/he reasonably believes that the person is not under proper care. An ASW undergoes specific, specialist training in mental health issues and applying the Mental Health Act 1983, as well as initial qualification as a social worker. However, a warrant still needs to be obtained for forcible entry.

Section 135 of the Mental Health Act 1983 allows an application to be made to the Magistrates' Court for a warrant to search for and remove patients. This allows the police to enter the specified premises forcibly, if required to do so, to remove the person with a mental disorder to a place of safety.

The grounds for this are that there is reasonable cause to suspect that the person with a mental disorder:

• has been, or is being ill-treated, neglected or kept otherwise than under proper control, in any place within the court's jurisdiction; or

• being unable to care for him/herself is living alone in any such place.

This will enable further applications under the Mental Health Act 1983 to be made for his/her treatment or care. The place of safety may be a hospital, residential or nursing home, police station or another suitable place able to care for the patient.

Section 136 of this act - 'Mentally Disordered Persons Found in Public Places' - covers people found in public places. If a police officer finds a person in a public place who appears to be suffering from a mental disorder and to be in immediate need of care and control, the police officer may remove that person to a place of safety. This person may then be detained for up to 72 hours for the purpose of enabling him/her to be examined by a doctor and interviewed by an ASW. This also enables provision to be made, if necessary, for his/her treatment or care.

Section 7 of the Mental Health Act 1983 refers to guardianship. The guardian of a mentally disordered person has the power to require access to be given to the person under their guardianship, at any place in which they are living, and to require his/her attendance at arranged appointments.

Guardianship (section 7) also means that a vulnerable adult can be received into guardianship by the local authority if s/he has a mental illness, severe mental impairment or mental impairment associated with 'abnormally aggressive or seriously irresponsible conduct' or a psychopathic disorder, which results in 'abnormally aggressive or seriously irresponsible conduct'. The guardianship must also be 'necessary in the interests of the welfare of the adult or the protection of other persons'. Guardianship gives the guardian three basic powers:

• to direct where the adult is to live;

• to require the adult to attend somewhere for the purpose of medical treatment, occupation, education or housing;

• to gain access to the adult at a place in which someone is living.

The Mental Health Act 1983 is currently under review, and further information is outlined in McIver's Chapter 9.

DISCRIMINATORY ABUSE

The Race Relations Act 1976 makes it unlawful for a person to discriminate against another on racial grounds, covering employment, education, facilities, goods, services and premises. The Race Relations Amendment Act 2000 places a general duty on public authorities to have due regard to eradicate unlawful discrimination, and to promote equality of opportunity and good relations between persons of different racial groups, in carrying out their functions.

The Sex Discrimination Act 1975 makes it unlawful to discriminate against a male or female on the grounds of his/her sex.

The Disability Discrimination Act 1995 makes it unlawful to discriminate against a disabled person, and requires employers to make adjustments to arrangements or premises to avoid placing a disabled person at a substantial disadvantage in comparison with non-disabled people.

As from December 2003, discrimination on the grounds of religion or belief and sexual orientation is illegal. Discrimination on the grounds of age is due to become illegal by December 2006.

The Human Rights Act 1998, Schedule 1, article 12, also prohibits discrimination. It states that:

'. . . the enjoyment of the rights and freedoms set forth in the European Convention on Human Rights shall be secured without discrimination on any grounds such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.'

Another area of concern when working with adults with learning disabilities who may be vulnerable is what may be termed 'institutional abuse'. Section 31 of the Care Standards Act 2000 requires all care homes to be registered with the Commission for Social Care Inspection (CSCI). Where homes are registered, the following may apply:

• if home owners persistently fail to comply with regulations or National Minimum Standards, then registration may be withdrawn and/or they may be prosecuted;

• individuals working in homes may be prosecuted;

• if CSCI officers consider that there is a 'serious risk to the life, health or well being' of residents or patients, then they can obtain an order for the immediate closure of the home (Care Standards Act 2000, section 20);

• specific national minimum standards pertain to care homes for older people ; adults aged 18-65, adult placements, domiciliary and nurse agencies.

Concerns regarding the quality of care afforded to adults with learning disabilities are also stated in Valuing People (2001b) :

'People with learning disabilities are entitled to at least the same level of support and protection from abuse and harm as other citizens. This needs to be provided in a way which respects their own choices and decisions. Good quality services for people with learning disabilities must support them to lead lives safe from harm and abuse, whilst enabling them to lead fulfilling lives.'

(Department of Health 2001b, p. 93)

The law gives carers rights to raise concerns regarding the quality of care. Employed workers have rights to make disclosures as a 'whistleblower', under section 47B of the Employment Rights Act 1996, as an employee she or he:

'. . . has the right not to be subjected to any detriment by any act, or any deliberate failure to act, by his/her employer done on the ground that the worker has made a protected disclosure.'

This therefore protects an employee who discloses information which they reasonably believe tends to show that a criminal offence has been or is likely to be committed; that a person has failed to comply with their legal obligations; or that the health or safety of any individual has been, is being, or is likely to be endangered. Disclosures of such information must be made in good faith.

Section 25 of the Police and Criminal Evidence Act 1984 permits a police officer, where there are reasonable grounds, to make an arrest of someone to prevent him/her from causing physical injury to another person, or to protect a child or other vulnerable adult.

Section 17 outlines the powers to enter and search premises without a warrant, for the purpose of saving a life or limb.

Under common law in England, any person can intervene, without consent, to save life or avoid serious physical harm. This is based on the principle that the action taken by such a person is reasonable and can be professionally justified as immediately necessary for saving life or preventing serious physical harm.

CONSENT

Adults with learning disabilities who are vulnerable need support to ensure that they are not denied the right or opportunity to make their own decisions and give their own consent to lifestyle choices. In English law, no person can give consent on behalf of another (Department of Health 2001a). Where it is necessary, healthcare professionals can and should provide treatment without consent where a person lacks capacity if it is clinically required and is in the best interests of the person. This should only be in exceptional circumstances. However, adults with learning disabilities often find that consent and decisions have been made for them, when they could have been asked or consulted about their own wishes.

Capacity is a legal concept and the Mental Capacity Act 2005 sets out a single, clear test for assessing whether or not a person lacks capacity to make a particular decision at a particular time. It is a 'decision-specific' test, meaning that it needs to be carried out again for other decisions. The act outlines that everything that is being done for a person who lacks capacity must be in that person's best interest. Likewise, it makes it clear that when a vulnerable person who lacks capacity is being cared for, then the person providing the care can do so without inviting legal liability.

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