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  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.
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- Panorama at Winterbourne View: the human rights angle – Lucy Series
- After Winterbourne View: the untapped potential of Article 8 – Lucy Series
- Delay in transferring mental health patient for treatment amounted to “inhumane treatment”
- European Court got it right on mental health detention delay – Martha Spurrier