From: drarwingnuttephd@gmail.com   
      
   UK Human Rights Blog   
      
      
      
   Should we be using 'special' offences to prosecute crimes against   
   disabled people? - Lucy Series   
      
   Eleven Winterbourne View staff have pleaded guilty to 38 charges of   
   ill-treatment and neglect of a mental health patient under s127 Mental   
   Health Act 1983 (MHA).  In this post I want to consider why we need   
   'special' offences like s127 MHA and also s44 Mental Capacity Act 2005   
   (MCA), rather than prosecuting crimes in care settings using more   
   'mainstream' offences.   
      
   The UN Convention on the Rights of Persons with Disabilities (CRPD),   
   with articles emphasising access to justice (Article 13) and equal   
   recognition before the law (Article 12) encourages us to think about   
   how we can ensure disabled people have effective access to the law   
   that protects us all before we develop parallel 'special' systems of   
   rights protection (see, for example, Inclusion Europe, European   
   Disability Forum).  So my question is: why are we using 'special'   
   offences of ill-treatment and neglect to prosecute crimes that occur   
   in care, rather than the ordinary 'offences against the person' those   
   outside of care rely upon?   
      
   Criminal law contains many offences which, strictly speaking, could   
   apply to many acts in connection with care and treatment.  Some   
   examples, drawing from the Crown Prosecution Service's legal guidance   
   on offences against the person, might include:   
      
   Common assault - intentionally or recklessly causing another to   
   'apprehend the immediate infliction of unlawful force' (assault), or   
   the 'intentional or reckless use of unlawful force' (battery).   
    Herring describes Battery as 'invasion of personal space'.   
   Assault occasioning Actual Bodily Harm (ABH) - distinguished from   
   common assault by the degree of injury, which must be more than   
   'transient or trifling'. Injuries can be psychiatric as well as   
   physical, but the prosecution will need to provide medical evidence of   
   this (R v Fook, 1994).   
   Kidnap -defined by the CPS as 'the taking or carrying away of one   
   person by another... by force or fraud... without the consent of the   
   person so taken or carried away; and... without lawful excuse.'   
   False imprisonment -defined by the CPS as 'the unlawful and   
   intentional or reckless detention of the victim'.   
   Aggravated trespass - (ok, not an offence against the person, but bear   
   with me here) consists of trespassing on land and 'in relation to any   
   lawful activity which persons are engaging in or are about to engage   
   in... intimidating those persons or any of them so as to deter them or   
   any of them from engaging in that activity... obstructing that activity...   
   [or] disrupting that activity' (s68 Criminal Justice Act 1994).   
   Whether or not a person could be held as committing the offences   
   described above will often turn on whether or not the person they are   
   doing these things to has consented.  When a care service user is   
   being restrained, secluded, removed from a place against their will,   
   confined in a place against their will, by definition consent is   
   absent.  In the landmark 'best interests' case Re F (1990), which   
   paved the way for the MCA,  the House of Lords held that where a   
   person lacked the mental capacity to give or refuse consent, then the   
   principle of necessity means that those that caring for them do no   
   wrong if they act in their best interests. Necessity as a defence   
   isn't discussed much in the criminal law textbooks; in their work on   
   Offences Against the Person the Law Commission described this common   
   law defence as 'of uncertain nature and extent'.   
      
   Today, happily, the MCA is pretty clear that s5 and s6 constitute   
   alternatives to defences of consent in civil and criminal law. In   
   short, where caregivers engage in acts which might be assault,   
   battery, trespass etc, where consent is not available as a defence,   
   they can invoke the 'general defence' of the MCA in their protection.   
   The recent ruling in the civil law case ZH (A protected party by GH,   
   his litigation friend) v The Commissioner of Police for the Metropolis   
   [2012] suggests that the more rigorous standards of the MCA have   
   superseded the common law doctrine of necessity, and must be complied   
   with in order to invoke this defence.   
      
   The problem is that we know - from regulatory reports and civil   
   proceedings - that it is not altogether unheard of for acts of   
   restraint, removal and detention by care staff and professionals not   
   to comply with the MCA (e.g. C v A Local Authority; G v E, 2010; Neary   
   v Hillingdon, 2011 and see CQC and CSCI's many reports detailing   
   concerns about restraint).  But I have never heard of care   
   professionals being investigated by the police for kidnap or criminal   
   false imprisonment, and it is rare for police to investigate, let   
   alone prosecute, battery by care staff.   
      
   Indeed, in the 2009 police report into abuse of adults with learning   
   disabilities in Cornwall, police and prosecutors did not recognise the   
   following acts as possible offences: dousing a person with cold water   
   in their best to get them up; administering a cold shower to a   
   'challenging' patient; locking residents in their houses and rooms;   
   tying a person to their wheelchair for 16 hours a day.  Importantly,   
   the question of a 'best interests' defence was not raised; these were   
   simply not recognised as possible crimes.  Given that the MCA defence   
   is unlikely to apply in many of these cases, it is very hard to   
   explain why such acts - which would almost certainly be treated as   
   offences if they happened to a non-disabled person in a non-care   
   setting - are not regarded as potential criminal offences.  Care and   
   criminal law seem to be in each other's blind spots.   
      
   Today, similar abuses to those uncovered in Cornwall have been   
   successfully prosecuted against the Winterbourne View carers using the   
   s127 MHA offences.  This is clearly a good thing, and I hope the   
   sentencing reflects the trauma and suffering inflicted by staff on   
   service users.  But it is important to recognise that ill-treatment   
   and neglect apply to a different, albeit overlapping, set of acts to   
   the offences against the person.  They will tend to be found where   
   there is evidence of cruelty, where the very ideals of care have been   
   offended against.   
      
   By contrast, offences against the person tend to turn on autonomy, and   
   could also include those situations where disabled people are   
   inappropriately restrained, effectively kidnapped and detained by care   
   professionals, or treated as if they lack capacity when they do not.   
      
   [continued in next message]   
      
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