offenders with a learning disability: the uk legal perspective

1. Offenders with a Learning Disability: the UK Legal Perspective William Bingley Professor of Mental Health Law and ethics University of Central Lancashire

3. Offenders with a Learning Disability: the UK Legal Perspective The Role of the Law To provide the legal basis for services To provide the legal authorisation for compulsion and safeguards To protect and enhance the civil and social status of people with learning disability Relevant and recent legal activity Activity in relation to all principal sources of law: Statutes and proposed bills European Union � Race and Employment directives Common Law- development of inherent jurisdiction Evolving equality and diversity legal framework � Disability Discrimination Bill Human Rights Act

4. Offenders with a Learning Disability: the UK Legal Perspective The Sexual Offences Act 2003 Offences against persons with a mental disorder impeding choice 30Sexual activity with a person with a mental disorder impeding choice 31Causing or inciting a person, with a mental disorder impeding choice, to engage in sexual activity 32Engaging in sexual activity in the presence of a person with a mental disorder impeding choice 33Causing a person, with a mental disorder impeding choice, to watch a sexual act

5. Offenders with a Learning Disability: the UK Legal Perspective 30����Sexual activity with a person with a mental disorder impeding choice ������(1) A person (A) commits an offence if- �� (a) he intentionally touches another person (B), (b) the touching is sexual, � (c) B is unable to refuse because of or for a reason related to a mental disorder, and � (d) A knows or could reasonably be expected to know that B has a mental disorder and that because of it or for a reason related to it B is likely to be unable to refuse. ��(2) B is unable to refuse if- �� (a) he lacks the capacity to choose whether to agree to the touching (whether because he lacks sufficient understanding of the nature or reasonably foreseeable consequences of what is being done, or for any other reason), or � (b) he is unable to communicate such a choice to A.

6. Offenders with a Learning Disability: the UK Legal Perspective 39����Care workers: causing or inciting sexual activity����� (1) A person (A) commits an offence if- �� (a) he intentionally causes or incites another person (B) to engage in an activity, � (b) the activity is sexual, � (c) B has a mental disorder, � (d) A knows or could reasonably be expected to know that B has a mental disorder, and � (e) A is involved in B's care in a way that falls within section 42. �(2) Where in proceedings for an offence under this section it is proved that the other person had a mental disorder, it is to be taken that the defendant knew or could reasonably have been expected to know that that person had a mental disorder unless sufficient evidence is adduced to raise an issue as to whether he knew or could reasonably have been expected to know it.�

7. Offenders with a Learning Disability: the UK Legal Perspective The Criminal Justice Act 2003 MAPPA: Extend and strengthen the existing duty placed on responsible authorities (Local Probation Board and Chief Officer of Police for each area and the Prison Service) to establish and keep under review arrangements for assessing and managing the risks posed by sexual and violent offenders in the community. New duties placed on Health and Social Care agencies 146����Increase in sentences for aggravation related to disability or sexual orientation�

8. Offenders with a Learning Disability: the UK Legal Perspective The Mental Health Bill Mental Disorder Nature or degree that warrants provision of medical treatment Patient who is at substantial risk of causing harm to others, that it is necessary for the protection of those persons that medical treatment be provided to him, and In any other case that- It is necessary for the health or safety of the patient or the protection of other persons that medical treatment be provided to him, and That treatment cannot be provided to him unless he is subject to the provisions of the Act 4 Appropriate medical treatment is available

9. Offenders with a Learning Disability: the UK Legal Perspective Mental Health (Care and Treatment) (Scotland) Act 2003 That the person has a mental disorder Medical treatment is available which could stop their condition getting worse, or help treat some of their symptoms If that medical treatment was not provided, there would be a significant risk to the person or to others Because of the person�s mental disorder, his/her ability to make decisions about medical treatment is significantly impaired That the use of compulsory powers is necessary

10. Offenders with a Learning Disability: the UK Legal Perspective The Draft Mental Incapacity Bill Incapacity- a functional approach in relation to each decision to be taken. Best interests- a checklist of factors to be worked through. Informal decision making :the General Authority- too broad, not sufficiently confined to day to day decisions and emergency situations Formal decision-making powers Lasting Powers of Attorney (LPA)- covers welfare (including healthcare ) and finance and property A new Court of Protection- all areas of decision making Court of Protection appointed deputies- make decisions about welfare and property and affairs. Advance Decisions to refuse treatment

11. Offenders with a Learning Disability: the UK Legal Perspective Draft Mental Incapacity Bill and Mental Health Legislation Bournewood Case � �an indefensible gap in our mental health law� Law Commission recommended Court of Protection have section 2/3 type powers for Bournewood type patients plus Part IV protection for all incapable patients receiving ECT and medication for mental disorder Draft Mental Health Bill provides some protection for Bournewood type patients in hospital. Draft Mental Incapacity Bill makes no provision for medical treatment for mental disorder save no authority to consent to or to give to a patient medical treatment for mental disorder �if the giving of the treatment to the patient is regulated by Part IV of the 1983 Act�- does this cover all incapable people not resisting treatment and not seeming to require treatment?� General Authority and LPA permit use of force �to secure the doing of an act� which a person resists and the restriction of a person�s �liberty of movement� whether or not they resist if necessary to �avert a substantial risk of significant harm� to that person. How does this relate to; Bournewood decision Mental Health Act 1983?

12. Offenders with a Learning Disability: the UK Legal Perspective Conclusions Mental Incapacity Bill to become law first? Mental Health Bill and Mental Incapacity Bill to dove-tale Equality and Diversity- �Public Authorities� under legal duty to promote disability equality. The rights of learning disabled victims of crime.