Should we be using ‘special’ offences to prosecute crimes against disabled people? – Lucy Series

14 August 2012 by

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 EuropeEuropean 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.  These acts can also have long term traumatic consequences – see for example this post by the father of Steven Neary; or this piece about the ‘blue room’ seclusion case.

The danger with using special offences is that we reinforce the sense that disabled people are different, necessarily more vulnerable, and that offences against them are not about their rights to autonomy but about not being kind. Instead, I suggest, we could look at strengthening the ordinary criminal law to make it more accessible and more rigorously applied to them,  and we could take steps to ameliorate the social causes of their vulnerability as care service users to criminal acts.  In doing so we could send out a powerful message: disabled people are rights bearers like any other, and crimes against them will be prosecuted like those against any other.

Lucy Series is a doctoral researcher at the University of Exeter.  She writes at The Small Places blog.  A longer version of this article can be found here.

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  1. Elaine Branwell says:

    a few further thoughts on why it is necessary to have specific laws…………..
    Care workers are poorly paid. It is a big decision to be a whistle-blower that risks one’s job or ostracism by one’s colleagues as a, “trouble-maker.”
    Give them the backing of specific laws so that they can say, “you cannot ask me to do that: its against the law.”
    A specific law is a signal that cannot be missed that such conduct shall not be without repercussions; that those of us not [yet] in that vulnerable position do condemn such abuse, utterly.
    A conviction of this type, on a police record disclosure, necessary surely for such jobs, should prevent employment if only because owners/managers of homes should feel a noose around their own necks if they did.
    Is there not a saying,”there are no rights without remedy.”
    Such laws may even have a filter-down effect to benefit Allen and his mother, and those in homes customarily kept short of liquids because they become confused and then relatives can be persuaded any complaint is due to failing faculties, and it saves the effort of, “toileting;” itself a degrading term.
    What crime is that under domestic law?
    One lady I visited burst into tears when I asked her what was the matter. She said she had sold her home and had nowhere else to go.
    The residential home she was in had been a good one; it had been sold, and to make better profits changes had been made that left it just as storage space for the elderly; they had become a commodity. Perhaps some specific laws shall change that concept. She had all her faculties; she had made a sensible decision to ensure her comfort and care. She made one to refuse food.

  2. Yes please DO use special offences to persecute. I am autistic, born deaf, dyspraxia, ADHD, Clinical Depression, High stress & anxiety, no support worker or personal assisant and my 75yo Mum and I unlawfully suffer a lot.

    Maybe these special offences could also be used against regulators such as the Care Quality Commission, PHSO, General Social Care Council, Local Government Ombudsman and even the General Medical Council etc etc when they cover up wrongdoings or put their own interest before vulnerable disabled people in all it’s forms, even if they ignore the Equality Act 2010, Public Sector Equality Duty, EC Human and Disability rights etc etc.

    Despite the ability to record my calls verbatim via deaf system text relay (formally typetalk) my Mum and I get swept under the carpet no matter what we do, many complaints processes are actually unlawful under the Equality Act 2010 as they are to difficult and oppressive, even for me!!! Hope these laws can also be used against bad councils and bad safeguarding vulnerable adult teams etc. Ignorance is like the Berlin Wall and just as cruel!

  3. Elaine Branwell says:

    The people who commit these atrocities have to be marked by being found guilty of an offense that acknowledges that, closeted behind walls, put in a position of trust, having power over people who have none or little, and who have no choice but to submit to that power, aware or none aware, quite possibly without visitors to tell, or with visitors who choose, for their own comfort of mind, to not believe, they have abused us all —- how few of us do not have to entrust a relation to the unseen care of others, have done in the past, or shall have to do in the future? My mother was too proud to say; others told me. I want that mark, and I want it to stay with the perpetrators for life, just as you would mark a pederast.

  4. The Engineer says:

    By the way, Lucy ma’am, if you’re reading comments, what is the utility of the apparently otiose words “by a public authority” in Article 8?

  5. The Engineer says:

    M’Alister for Donohue. Mea culpa.

  6. The Engineer says:

    I am disabled by a major stroke affecting my right-hand side. I argue that physical dependence is total dependence. I am lucky to have my wife of fifty and more years as carer.
    There is abuse in the simple failure of care, whether it be serious violence, neglect or the refusal of a book. The abuse, like so many abuses, results from the relationship of dominance and subservience.
    That, I submit (but I am an engineer – servant of Natural Law but no lawyer!) is the feature of the ‘plight’ of the handicapped which justifies special legislation. It is not that offences are aggravated (although I submit that they are) it is that ordinary behaviour may be so aggravated, by the very nature of the relationship as to be an offence in the eyes of society.
    Oh, and as to the relationship, I defer to Lord Atkin in Donohue v Stevenson (or was it M’Alister?). As should we all!

  7. ObiterJ says:

    The use of the “special offence” makes a clear link with the setting in which it occurs. Conviction clearly highlights the unfitness of these individuals to continue to work with vulnerable people.

  8. rogerivanhart says:

    Reblogged this on Roger Ivan Hart's Blog and commented:
    I can well understand the horror people must feel when they read of crimes like these. I had a daughter who may have ended up in a Home like this. I know if similar atrocities had happened to her I would want severe retribution.

    However, I do not think that separate legislation is the right way to go. It would have the effect in the public mind of further separating the disabled from society. We need to encourage the public to view those with disablities as humans first and formost.

    We already have laws to deal with abuse and torture of human beings, which some of the actions of the staff of this Home amounted to. Use those laws to prosecute wrongdoers rather than bring in laws that will, in my view, be counter productive.

  9. 123 says:

    …I find it rather worrying that, once ATOS, Serco, United Healthcare Virgin Healthcare and all the other private companies have carved up the NHS, they will not be subject to scrutiny by the CQC or the Department of Health, nor will they be compelled to have internal whistleblowing policies. For all the understandable and justifiable outrage about Winterbourne (and I will guarantee that there are many other “homes” where similar is happening right now without hidden cameras), there seems to be little concern that these kind of things are likely to happen more and more, with no machinery for internal scrutiny or regulation…

    1. Tim says:

      I think that’s a good point. Even now, if you go to the ‘What do they know?’ website and see all the FOI requests to the Department for Work and Pensions you will see a lot of disabled people being quite frustrated at not being able to get much information about Atos and their shabby treatment of disabled people because the government simply replies that the information requested is commercially sensitive.

      The worst bullies of disabled people are the government – they just hide it better.

  10. One can’t help wondering. Rather similar considerations apply to religiously- or racially-aggravated offences. As I’ve observed to my students before now, if a bloke attacks me with a machete and hacks off my arm, what more damage does it do me if he tells me that he’s doing it because he hates Quakers? I can quite happily cope with insults to the Religious Society of Friends: what I’d be worrying about would be seeing my arm lying on the floor and/or dying from shock and loss of blood. My religious sensibilities would be neither here nor there.

    That’s an extreme example and, obviously, I understand the rationale behind the change in the law on religiously-aggravated offences: the impact on the victim of a much more minor offence can be magnified dramatically if it’s accompanied by religious (or racist) insults. But the absolute bottom line is surely that people deserve the full protection of the law in right of their humanity, not because they’re black or disabled or Zoroastrians or whatever. As you say, it’s not about being kind.

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