Tag: law

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duty of care law mental health mental health act politics safeguarding

The legal profession is failing people with mental health issues when accused of crime – and this must change

By Caroline Spencer-Boulton, NALP Licenced Paralegal, 24:7 Criminal Defence

There has never been a better time for the legal profession to ask itself if it properly serving clients with mental health issues, with mental health firmly on the agenda and more people suffering as a result of Covid-19 and lockdown,

I believe there has been a distinct failure by the legal profession, over the years, in obtaining proper and full assessments of clients suffering from one or more mental health issues.  This means the profession is letting down its clients and acting without the highest standards in mind. Even where there are clearly issues for concern, there has been a failure in many cases, to obtain appropriate psychiatric or psychological assessments. This needs to change.

I have specialised in the field of Criminal Defence for 14 years, the last eight years operating as a licenced paralegal preparing cases for my own clients both within solicitor firms and more recently on a privately funded client basis, I have been involved in the preparation of defence cases for a considerable number of clients with mental health issues.

The onus must be on the authorities and legal professionals throughout the UK to thoroughly consider a client’s potential mental health state from the outset. This should start at the police station interview stage. For example, adverse behaviour as a child or teenager growing up in care, or within a dysfunctional or disadvantaged family is currently deemed to be not enough of a concern for many legal representatives to consider further investigation or expert reports. 

Such incidents have led to miscarriages of justice in the past, yet still today not enough consideration is given to those with mental health issues who get caught up within the criminal justice system.

As a police station accredited representative, I have attended at police stations, and other venues, to advise and assist clients who are being interviewed by police.  At the police station when a client has been arrested and is being booked in to the custody suite they are asked if they suffer from mental health issues as part of the welfare check.  Many will not divulge that information due to a perceived stigma associated with mental health. 

One client, whose mental health issues were known to exist and a mental health nurse was on hand to determine whether the client was fit to be detained and fit to be interviewed, was declared fit by the nurse. I arrived, and in consultation with my client it was clear that they were unfit, because they were talking about angels and the devil, and clearly did not understand the reason for their arrest or where they were.  Having made representations to the mental health nurse and the custody sergeant I was advised that despite my concerns and representations the interview would proceed!  Within a minute of that interview commencing the police officer agreed that the client was not fit to be interviewed nor detained. The client was subsequently released into the care of their carer.  Clearly there had been a significant error on the part of the police force and mental health nurse.  Thus, it is imperative that police station accredited representatives and solicitors take the time to assess a client and perhaps, more importantly, make suitable representations to the police and mental health professionals if there are concerns.

Another client with mental health issues who was already serving a significantly long sentence advised me that they became involved in bad behaviour as they believed that they would be killed if they were not segregated.  That client had received no mental health care in the, approximately, 10 years they had been incarcerated.  Due to my concerns, a full psychiatric and psychological assessment and expert report was obtained.  It transpired that one of the experts believed that the client’s original case was unfair due to the client’s mental health issues and that the client should consider appointing a legal professional to look at their original case with a view to submitting a fresh application to appeal.  That client, with the diagnosis, evidence and advice submitted in the expert reports, was finally given mental health care and treatment in the prison.

These are just two examples of many I have dealt with, some in relation to submitting applications for leave to appeal, where I firmly believe a miscarriage of justice has taken place.

So, what needs to be done to address the issue? Here is what I believe needs to happen in order for the legal profession to better serve people with mental health challenges:

Assessment

An in-depth assessment by the Crown instructed expert psychiatrists and psychologists. Often these people are only given the defence expert report and prosecution evidence. The Crown’s experts should be given sight of the medical records of those they are assessing, and they should provide a full assessment and report on the person’s ability to understand the trial process and take part in it. They should not be asked simply to provide a report aimed solely at a continuation of prosecuting a defendant. Often the full mental health issues are not covered in these Crown instructed reports.

Start at the police station

Full and proper consideration/assessment by mental health nurses at the police station stage. The aim is to determine, where a client suffers from mental health issues, their real ability to understand and give instructions and/or an interview.  All too often clients are deemed fit for interview at the police station, when clearly, they are not.

Intermediaries

The use of intermediaries in court proceedings appears to be a rarity.  In a world where there is a significant trend towards those with mental health issues facing proceedings before the Courts, intermediaries should be instructed to assist the client during trials and other hearings/conferences where necessary.  This intermediary service is currently heavily overlooked.

Education of legal professionals

Courts of Justice

This applies to both defence and prosecution, to help them understand mental health issues and the treatment options. Further educating legal professionals to note and consider these issues if they have concerns when dealing with a client. Encouraging them to obtain those vital expert reports, from psychiatrists and psychologists, as to their client’s mental health. More often than not those assessments prove vital to the outcome for the client. 

Utilising help

Deeper consideration and use of Hospital Orders. Utilising the help available from the Probation Services and ensuring that the most vulnerable are protected by the courts.  

Rehabilitation

Prisons should revert to proper rehabilitation techniques. These appear to have waned over the past 10 years or so.  This should include suitable assessment of those with suspected mental health issues particularly within the Autism range, ADHD and PTSD; all of which can be complex. Appropriate treatment should be given to those serving custodial sentences.  Those with significant learning difficulties and/or low IQ should be provided with approved courses and treatment to help with coping and progression, as well as obtaining employment once released.  The government should put in place a service for those released from prison who suffer from mental health issues so that they may continue to be provided with assistance and treatment, in order to reduce reoffending behaviours.

Full expert reports should be obtained by defence solicitors/firms on their client’s behalf where and when possible. Legal aid funding is available for these expert reports where clients are legally aided.  For those clients who are privately funding their defence case, their defence team should advise them about the importance of obtaining expert reports on a client’s mental health issues – albeit that this can be at a significant cost to the privately funded client.

On a positive note, there appears to be a very gradual roll out of psychiatrists being available at the Courts to assess defendants facing sentencing.  A very tiny step, but certainly one in the right direction. However, my concern is that there are not enough hours in a day at the court for a full and proper assessment to be carried out. Therefore, in my opinion, without a full assessment, defendants will not be offered appropriate treatment or sentencing plans. 

Mental Health is a wide-ranging condition which is all too often either not fully considered by legal professionals and related authorities or considered at all.  This attitude and lack of proper consideration must change for future generations.

ABOUT THE AUTHOR

Caroline Spencer-Boulton is a NALP Licenced Paralegal from 24:7 Criminal Defence.

The National Association of Licenced Paralegals (NALP) is a non-profit Membership Body and the only Paralegal body that is recognised as an awarding organisation by Ofqual (the regulator of qualifications in England). http://www.nationalparalegals.co.uk

Twitter: @NALP_UK Facebook: https://www.facebook.com/NationalAssocationsofLicensedParalegals/

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duty of care human rights law mental health risk safeguarding social care video

A duty of care myth

Hanged if you do… hanged if you don’t!

Many people are confused about their duty of care. They think they’re somehow responsible for the actions of other people. This leads them to try and prevent people from doing things that they have a perfect right to do because it might be risky. In truth our duty of care is actually much simpler than most people imagine:

  • Do all that you reasonably can;
  • Don’t break the law;
  • You are not responsible for the actions of other people;
  • You are responsible for your own actions in the situation you’re in;
  • Care workers are judged upon process, not outcome.

Complete the contact form below to arrange training for your staff.

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Duty of care: A slug in a bottle

Donoghue vs StevensonIf there’s one thing that unites almost everyone concerned with health and social care services it’s the fear of being sued. Otherwise rational and courageous workers have been reduced to quivering wrecks at the mere suggestion of litigation or the slightest suggestion that they might have failed in or ‘neglected’ their duty of care.

Duty of care is such a preoccupation for workers that it crops up daily in conversation and in practice whenever we encounter ‘thorny’ issues relating to ‘health and safety’, ‘rights and responsibilities’, ‘freedom of choice’, ‘confidentiality’ and a host of other topics. What all of these conversations have in common is ‘duty of care’.

However not everyone who hears the term understands what it means or indeed where it comes from. This is a shame because as we all know knowledge is power and one way to know about something is to know a bit about its history and development.

Lord Atkin delivered a judgement in the House of Lords on August 26th 1932, thus ending a legal battle that had gone on for four years. The judgement became what is known in UK law as a ‘binding precedent’ because (with the exception of the new Supreme Court) no other UK court has the authority to overrule the principle that comes from it. This is the principle that most Duty of Care decisions are based upon.

What is this principle that was so important it still affects us today? We’ll get to that. First let me tell you the basic facts of the story.

May Donoghue was a shop worker in Paisley, near Glasgow who, one Saturday afternoon went with a friend to buy an ice cream float at Frankie Minghella’s café. As it turned out Mrs. Donoghue didn’t pay, her friend did – and this is significant.

Having finished most of her ice-cream float she discovered the partly decomposed carcass of a slug in the bottom of the bottle that had contained her drink. She was later treated for gastro-entiritis (presumably as a direct result of consuming some of the corpse).

Mrs. Donoghue’s next move was to sue the owner of the café. However the café owner, Mr. Minghella argued that his only duty of care was to the person who bought his goods and since Mrs. Donoghue had not paid herself there was no legal case to answer.

Not to be deterred Mrs. Donoghue turned her attention to Mr. David Stevenson whose company had manufactured and bottled the soft drink in question. The argument was that Mr. Stevenson had a duty of care to the people who used his products in the end – however far removed they may be from his own bottling and production plant.

Lord Atkin’s ruling was that Stevenson was responsible and stated in the ‘Obiter Dicta’ (legal jargon for ‘last words’ that explain the judgement) that we all have a legal responsibility not to injure our neighbour.

“You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour.”

The definition of ‘neighbour’ he used was this:

“persons so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question.”

In other words we all have a legal duty, ‘a Duty of Care’ to consider the effects of our actions upon other people who may be affected. In health and social care this basic principle includes following the various rules and legal obligations that surround our work.

In practice it means that:

We all have a duty of care to the ultimate consumer

That’s the principle of this case: Donoghue v Stevenson 1932. However far removed we might be from the face to face ‘frontline’ of clinical practice we all have a duty of care to ensure that our practice is safe and reasonable.

 

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law Mental Capacity Act training

Course design 13: Take the time to tell the tale

The following is the text of an article I first wrote for ‘Local government Lawyer’ magazine. You can find it online here:

http://localgovernmentlawyer.co.uk/index.php?option=com_content&view=article&id=7057%3Alessons-in-law&catid=52%3Aadult-social-services-articles&q=&Itemid=20

Lessons in law meme“Lessons in law      

Thursday, 23 June 2011

The right approach to training in health and social care law can make a world of difference, writes Stuart Sorensen.

The abuse of vulnerable adults at Winterbourne View Hospital was extreme, dramatic and horrific. That’s presumably why Panorama chose to investigate it and why it has received so much attention from both press and public. Many bloggers have jumped on the scandal to make a point, some moral and some procedural. I have done as much myself. Several of us have taken the opportunity to write about specific legal issues from the Mental Capacity Act and the Deprivation of Liberty Safeguards to the Mental Health Act and the European Convention on Human Rights. It’s always helpful to have a topical ‘angle’ to focus upon when discussing law.

Unfortunately though this sort of blogging often becomes an exercise in futility. Those people who are interested in matters of law will most likely already be familiar with the principles discussed, or at least know how to find out about them. Those who are not, who simply want to know more about the human drama unfolding as a result of the programme will simply ignore the legal stuff in favour of more lurid pieces. For many the very thought of trying to understand legal concepts conjures up images of dusty textbooks and overly complicated jargon that might as well be written in a foreign language. There’s a perception of inaccessibility that discourages many people from even trying to understand. That’s where I come in.

I’m not a lawyer – I’m a nurse. A mental health nurse to be exact. I’m also a trainer. Oh yes – and I’m a bit of a geek with a passion for law. Well, everybody needs a hobby.

So it’s not too surprising that I regularly find myself training nurses, care workers, social workers, doctors and even police officers on health and social care law related issues. I must have trained tens of thousands of people over the years on topics such as the Mental Capacity Act, the Deprivation of Liberty Safeguards, the Safeguarding Vulnerable Groups Act and its Scottish equivalents the Protection of Vulnerable Groups (Scotland) Act and the Adult Support and Protection (Scotland) Act. Does that make me an international trainer? I doubt it but a nurse can dream.

During these sessions one theme is almost constant. People come into the training expecting to be bored. They also expect to be confused by a topic that they will not be able to relate to and that has little or nothing to do with their everyday experience. Not the best starting place for a jobbing trainer like me.

The problem is that many legal trainers have never taken the time to understand how health and social care workers learn. We’re different from lawyers – at least I think we are. There are many ways to think about learning styles and personality types and generalisations can be misleading but here goes anyway. In my experience health and social care staff from support workers to social workers tend to be more or less ‘top down’ learners. If the training was a jigsaw they’d like to see the picture on the box before they even start to look at the individual pieces.

Introducing care professionals to the minutiae of doctrine has its place but not until they understand the broad picture – the background and purpose of the particular act and how it relates to their work on a day to day basis. These people are not lawyers, they don’t generally think like lawyers and very often they don’t even start with the basic point that the law can help and protect them.

There is a culture of resentment in health and social care, especially regarding mental capacity, rights and safeguarding legislation. It’s not because people would prefer to be abusive – it’s because they don’t understand the law well enough to realise how positive it can be. So we begin with the basics, the purpose, the background and the scope. And we do it through story. This allows us to pull out the basic principles that we will rely upon and return to throughout the rest of the training. It sets up a basic foundation, the ‘picture on the box’ and gives participants the confidence to engage without fear of looking ‘stupid’.

Care workers tend to be ‘hands on’ people. We don’t usually ‘do’ abstract nearly so well as we ‘do’ tangible. That’s not to suggest that we’re not capable, far from it. But tangible is the ‘default’. As a rule we work with people and we get involved in the narrative of their lives. That’s what we do. It’s also how we learn.

So for Safeguarding we begin with Soham and with Miss X. For the Mental Capacity Act we tell the Bournewood story and from this month DoLS training will start with Hillingdon and the ‘Neary case’. By using narrative right from the start we draw people into a world that they’re already familiar with. By asking questions throughout the stories we begin to relate legal constructs to everyday scenarios:

What should the social worker have done?

How should the care worker react?

Is this good practice? If not, why not?

Before they realise it the participants have gone from work to law without a hiccup. This is the value of narrative. From stories and case studies to participants’ own experiences and even newspaper headlines, stories work. Stories are memorable, stories are accessible and stories help people to ‘grock’, to assimilate the true meaning of the law.

That may seem obvious. Indeed it is obvious but it’s also depressingly uncommon. I genuinely have lost count of the number of people who’ve told me how much easier to understand they found social care law after narrative based training. I won’t bore readers with their reports of previous, ‘chapter and verse’ style training but I’m sure you can imagine.

So if you’re a lawyer, a trainer or a social worker with the responsibility for delivering health and social care law training to care workers remember the rule of ‘T’:

Take The Time To Tell The Tale”

 

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duty of care law Mental Capacity Act mental health mental health act social care

Privileged glimpses 25: Who put us in charge?

This series of blog posts first appeared a few years ago on a now defunct blog called ‘Care Training’. It was inspired by the training maxim of ‘making the unconscious conscious’. It is intended to take what really ought to be the most basic principles of health and social care and put them down on paper. The series isn’t only an exercise in stating the obvious though whatever the title might suggest. It’s actually intended as a philosophical foundation manual for workers and informal carers to help them get their care ‘on track’ and then to keep it that way.

The first of the Mental Capacity Act’s underlying principles is:

An assumption of capacity

This means that we need to begin by assuming that everyone we meet is capable of making this particular decision at this particular time unless we have reason to suspect otherwise. In other words that person is ‘Most people’ in relation to the ‘three types of legal status’ table below:

Three types of legal status

Most people

Make their own decision

 Bournewood gap

Follow Mental Capacity Act 2005

 Mental Health Act

Follow Mental Health Act 1983/2007
People whose capacity to make the decision is not in doubt People who are not detained under the MHA but who lack the capacity to decide People who (because of a mental disorder) are deemed to present a risk to self, risk to other or are at risk through self-neglect.

This might seem very obvious and reasonable (in fact it is) but it doesn’t sit too well with common practice in a number of care environments. Let’s look at an example.

When I was still a young man I worked as a care assistant in a Learning disabilities residential home. Looking back I can see a number of problems with the way the home was run but at the time, having come into a system that was already established, I thought that this was how learning disabilities establishments were supposed to operate. I didn’t know any better.

One of the fundamental mistakes I used to make related to the residents’ ability to make choices. This mistake covered all sorts of decisions from what to watch on the TV to whether or not they wanted to come on group outings to the local swimming pool.

The house was set in its own grounds in a beautiful part of Lincolnshire and the lawn and garden were nothing short of stunning. The home employed a full time groundsman to keep everything in good order and he did an excellent job. Consequently, many of the residents used to enjoy spending time sitting under the trees in the grounds or walking around the landscaped garden.

However this wasn’t always possible. You see, along with all the other staff there, I would take it upon myself to stop residents at the door and expect them to explain to me why they were safe to go outside. If I wasn’t completely satisfied then I would prevent them from doing so – this wasn’t difficult because the doors were always locked and only the staff had keys. Only if I was happy for them to leave would I let them go outside.

The problem was that this was the wrong way around. I emphasised the word let in bold for good reason. You see it wasn’t up to me to let people do anything.

We use the word ‘let’ a great deal in health and social care but that implies an authority we do not usually have. I can only let a person do something if I have the legal power to prevent them – and usually I don’t.

It wasn’t up to me to let people go outside into their own garden. They went because they had a right to and unless I had good reason to interfere with that they didn’t need my permission at all.

A more recent illustration of this comes from the N. Cornwall Learning Disabilities Partnership NHS Trust inquiry that took place in 2006. There were 40 referrals to the POVA list (now the vetting and barring list) and many of them were to do with staff preventing people from using areas that they had a right to without good reason.

Whenever we are tempted to take control of other peoples’ choices it’s useful to begin by asking ourselves:

“Who put me in charge?”

Unless you can demonstrate that the individual lacks the capacity to make this particular decision at this particular time then nobody put you in charge. The person has a legal right to make their choices whether we like it or not.

Even if the person lacks capacity (in which case you may very well be ‘in charge’) you will still need to act in their best interests and that doesn’t automatically mean doing what is best for the staff or for the relatives.

People have the right to occupy their own space, to make decisions about when they get up or go to bed, to choose who they spend time with and whether or not to involve themselves in activities. They also have the right to disagree with us and to ignore the preferences of family members just as you have. Your relatives have no right to tell you what to do (assuming you’re an adult) and the same is true for your service-user with capacity.

Who put us in charge?

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duty of care law mental health social care Uncategorized

Privileged glimpses 15: A duty of care myth

This series of blog posts first appeared a few years ago on a now defunct blog called ‘Care Training’. It was inspired by the training maxim of ‘making the unconscious conscious’. It is intended to take what really ought to be the most basic principles of health and social care and put them down on paper. The series isn’t only an exercise in stating the obvious though whatever the title might suggest. It’s actually intended as a philosophical foundation manual for workers and informal carers to help them get their care ‘on track’ and then to keep it that way.

Many people are confused about the exact nature of their Duty of Care toward the people they look after. To a large extent this is because they think that they are somehow accountable for the actions of other people (in this case the client or service-user).

This gives people the sense that they are:

Hanged if they do and Hanged if they don’t

In reality, you are responsible only for what you do – not for what your client does. If you do all that you can within the law to minimise risk, to help them to make decisions in their best interests and to help the client to cope more effectively then you have fulfilled your duty of care. This is true whatever the outcome might be.

  • You are not responsible for someone else’s behaviour.
  • You are responsible for your own behaviour in the situation in which you find yourself (including acting to keep others safe when necessary).
  • You are not expected to take away people’s rights to choose if they are able to.
  • Care workers are judged upon process – not upon outcome.

 

Do all that you reasonably can within the law.

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The Convention 18: The right to freedom from discrimination

ARTICLE 14
The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground 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.

As most people are aware many forms of discrimination are unlawful in British society as they are throughout much of the rest of the world. However the nature of discrimination (what it actually means) isn’t always so clearly understood. The confusion about what is and is not discrimination isn’t helped by the way that certain individuals or groups claim ‘discrimination’ when really they are simply failing to get their own way. A recent example of this involves Father Raniero Cantalamessa, Pope Benedict’s personal preacher who likened the current criticism of the Roman Catholic church to anti-semitism. Cantalamessa claimed that the current outrage at the Catholic church’s failure to protect children from paedophile priests is anti-catholic discrimination.

In fact nothing could be further from the truth.

Raniero Cantalamessa
Raniero Cantalamessa

What we see is arguably pro-Catholic discrimination in that the leaders of the church appear to be receiving preferential treatment. If the management of any other organisation had protected paedophiles from the law and knowingly continued to place them in positions of trust with vulnerable children they would be prosecuted. The ‘blind eye’ that the current Pope himself turned in the past would, according to UK law at least, result in prosecution and very probably a lengthy prison sentence. If there is any discrimination at all it is not anti-Catholic. It is pro Catholic.

The desire to protect children from abuse is not discrimination and such claims are merely an attempt to distract attention from the real issue – the repeated abuse of children by paedophile priests in the full knowledge of a hierarchy that was more interested in secrecy than in upholding the law. This would be a problem in any organisation, not just a Catholic one.

Criticising criminals for their abuse is fair comment. The reason for criticism of the church hierarchy is not their Catholicism, it is their criminal behaviour in shielding abusers from justice and continuing, consistently to place paedophiles in positions where they can repeat their abuses of vulnerable children.

We can see then that what does or does not constitute discrimination depends upon relevance.

It would be discriminatory to treat all Catholics, or even all Catholic clergymen as though they were child abusers. This is because Catholicism is not relevant to paedophilia per se. Not all Catholics are paedophiles and not all paedophiles are Catholic.
It is when we make unreasonable distinctions between people that we are guilty of discrimination. For example when we make assumptions about someone based upon characteristics that have nothing to do with the issue at hand. This sort of discrimination, based upon irrelevancies, is what happens when people make judgements based upon skin colour, religious affiliation, nationality, ethnicity, disability, profession or sexual preference.

Skin colour for example has nothing to do with trustworthiness and disability does not invalidate a person’s right to be treated with respect. In both cases, colour and disability, the ‘condition’ is irrelevant to the point under consideration.

However the fact that an individual belongs to a group that is regularly discriminated against does not mean that they can do no wrong. A gay man who assaults his neighbour in a dispute about a garden fence will still be prosecuted. But he will be prosecuted because of the assault. His sexuality is irrelevant. He may claim discrimination on the grounds of his sexuality but his claim will not be taken seriously by the courts because his sexuality is not relevant to the case at hand.

On the other hand a gay couple refused accommodation in a hotel or guest house would be supported under anti-discrimination legislation for exactly the same reason. Their sexuality is not relevant to their right to use services.

Similairly if I, when I was manager of a residential drug rehabilitation unit had to evicted an Asian man because of his use of illicit substances on the premises he could not then have claimed racial discrimination. Actually, anyone who knows me would understand how ludicrous such a claim against me would be but that’s not the point. The eviction would be because of the rules of the service which are applied equally to all service-users regardless of skin colour or racial type. Colour is simply irrelevant and therefore the decision to evict is not discriminatory – it is simply an appropriate response.

The basic ‘rule of thumb’ then for front line workers is to ask if the alleged discrimination is relevant. Is your action the result of the individual’s need or behaviour or is it motivated by the fact that they belong to a particular group.

If it’s because of individual circumstances and would be the same whatever subgroup the person belonged to then it’s probably not discrimination. I say probably not because there is the additional aspect of institutional discrimination that we will consider in a later post. If it’s because of the subgroup they belong to (eg Catholic, gay, disabled, Asian etc) then there’s a good chance you really are discriminating.

As ever ‘relevance’ is the key when deciding whether or not you’re being discriminatory.

The Human Rights Council recently expressed grave concern at discrimination & violence based on sexual orientation
Their concerns are mirrored by the Crown Prosecution Service here in UK who reported on prosecution rates for ‘hate crimes’ here.

About ‘The Convention’

This series of posts first appeared on Stuart’s blog in June 2011. It is not intended to be a comprehensive or even particularly authoritative reference guide to the ECHR. Rather it is a brief introduction to a much larger and infinitely more fascinating subject. You can download the entire series in PDF format here: https://stuartsorensen.wordpress.com/amj-freebies-downloads-and-services/

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The Convention 17: The right to effective remedy

ECtHR in sessionThere is little that needs to be said about article 13. All it really means is that each country must enact laws to ensure that European Convention rights are upheld. If they are not then enacted then aggrieved citizens can take their country to the European Court of Human Rights to sit in judgement in their particular case.

Appealing to Europe is expensive and time-consuming though and so most countries try to ensure that their own, domestic legislation reflects the ECHR. Here in UK that’s what the Human Rights Act 1998 is all about. It includes all the articles of the ECHR except for article 13. That’s because the government believes that article 13 is automatically upheld simply because the Human Rights Act 1998 exists. It provides effective remedy in itself and needs no further discussion.

ARTICLE 13 says:

“Everyone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”

The Human Rights Act 1998 also re-emphasises the duty of all UK courts to interpret the law in a way that is consistent with the ECHR when reaching a judgement. There is a ‘side option’ known as a ‘statement of incompatibility’ which allows the court to say that existing UK law cannot be interpreted in keeping with the ECHR and so pass it back to Parliament to review but this is rarely needed.

About ‘The Convention’

This series of posts first appeared on Stuart’s blog in June 2011. It is not intended to be a comprehensive or even particularly authoritative reference guide to the ECHR. Rather it is a brief introduction to a much larger and infinitely more fascinating subject. You can download the entire series in PDF format here: https://stuartsorensen.wordpress.com/amj-freebies-downloads-and-services/

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The convention 9: No punishment without law

In an earlier post I mentioned the appalling events that took place at Winterbourne View Hospital, a private establishment owned by Castlebeck.

wpid-Panorama-abuse-allegation-007.jpgThere have been some excellent blogs written about the scandal since it broke on a Panorama programme last week. These have mainly been from the perspective of liberty. For example This ‘Fighting monsters’ blog or this one from Lucy Series at ‘The small places’.

Of course this is important. In fact it’s vital that those of us who work in health and social care understand and respect the right to liberty. However there’s another, equally important principle to consider here. The idea that there can be no punishment without law. Welcome to Article 7 of the European Convention on Human Rights.

According to Article 7 people have the right not to be convicted of a crime that was not an offence at the time they committed it. They also have the right not to be given a harsher sentence than the maximum allowed at the time of the offence. This seems eminently fair and reasonable and few people object to it – at least in theory. It’s when we start to look at the wider implications that things become interesting – especially in health and social care.

wpid-winterbourne_2376241b.jpgThe Panorama footage from Winterbourne View leaves no room for doubt that staff were taking it upon themselves to ‘teach residents a lesson’ whenever their behaviour didn’t meet expectations. At least it leaves no doubt in my mind but of course, I’m not the court. This apparent abuse is all the more poignant when we learn that the expected behaviours involved passive acceptance of mistreatment and that the punishments meted out to them were torture by any definition.

But torture is not the focus of today’s blog. Instead I want to concentrate upon the widespread practice of people taking the law into their own hands. That’s what the staff at Winterbourne view did (allegedly) when they decided who to punish and who to let be. They were setting themselves up as judge and jury. But they were not judges or jurors and they most certainly were not entitled to act as executioners. Remember the maxim:

No punishment without law.

There is no law that allows care workers to punish anyone. That’s not what our work is about. If a criminal offence has been committed then we have a legal system designed to deal with it. A legal system that abides by the laws of the land and that understands proportionate punishment – not using a hammer to crack a nut.

Winterbourne View staff wrestling someone to the ground because they ‘looked at them’ is neither lawful nor proportionate. It’s a punishment meted out by someone with no right to decide upon guilt and penalty in the first place. That really is punishment without law. Throwing cold water over residents, pinning them to the floor with chairs or standing on their hands is equally indefensible.
The simple truth is that only the courts can condemn and only the courts can punish. Private citizens are not authorised to take the law into their own hands, especially if they are in charge of vulnerable people.

But this principle goes much further than Winterbourne View. One of the most common misunderstandings I come across when delivering training on challenging behaviour work is the belief that behavioural regimes involve punishment. They do not. Punishment is both illegal and unethical. It’s abuse.

edl rioters in BradfordA more obvious example of Article 7 at work is in the field of ‘hate politics’. From animal rights campaigners to religious fundamentalists there are always individuals ready to hurt those with whom they disagree. They see a difference of opinion, of race or of religion as an offence worthy of punishment and sometimes they take the law into their own hands.

Currently the UK group most often prosecuted for condemning and punishing others is the English Defence League whose members, ironically enough, regularly ‘defend’ England by attacking and harassing English citizens.

It is ironic that the ECHR not only prevents groups like the EDL from getting their way but also ensures that the Islamic ‘Sharia’ Law they fear so much could never hold sway in Europe. If EDL members would only stop and think for a moment they’d see that the very convention they oppose so vehemently protects them from the thing they fear the most.

It really is true that the more people know about the ECHR the more they appreciate it and the positive impact it has for us all.

About ‘The Convention’

This series of posts first appeared on Stuart’s blog in June 2011. It is not intended to be a comprehensive or even particularly authoritative reference guide to the ECHR. Rather it is a brief introduction to a much larger and infinitely more fascinating subject. You can download the entire series in PDF format here: https://stuartsorensen.wordpress.com/amj-freebies-downloads-and-services/

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The Convention 8: The right to a fair hearing

Years ago a national newspaper ran a series of TV advertisements with the slogan…

“Ever wished you were better informed?”

One that sticks in my mind involved the image of a scary looking skinhead running down a busy street, his face set in grim determination and jumping on an innocent looking man in a pin striped suit. The force of the ‘assault’ sent both men hurtling to the ground in what looked ‘at first sight’ like a thuggish attack on a defenceless victim.

Then the camera angle widens and it becomes clear that far from assaulting a passer by the skinhead had just saved his life. Risking his own safety he had prevented the ‘victim’ from being crushed by falling bricks from a scaffold above his head.

Courts of Justice
Courts of Justice

The term ‘at first sight’ is also used in law. It’s not the end of the story though – it’s the beginning. Just because a person looks guilty doesn’t mean that they are as the advertisement described above showed so well. Most people have found themselves in situations where they have done nothing wrong but where ‘at first sight’ evidence makes it look as though they have. That’s what article 6 is all about – the right to a fair hearing.

“1. In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law……..

2. Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.

3. Everyone charged with a criminal offence has the following minimum rights –
(a) to be informed promptly, in a language which he or she understands and in detail, of the nature and cause of the accusation against him;

(b) to have adequate time and facilities for the preparation of his defence;

(c) to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require;

(d) to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him;

(e) to have the free assistance of an interpreter if he cannot understand or speak the language used in court.”
ECHR – Article 6

Article 6 is the friend of the accused, not because it protects guilty people from punishment but because it protects the innocent from unsafe and ill-considered conviction.

But article 6 applies to more than just criminal proceedings. It also covers civil proceedings such as claims for damages or tribunal hearings. The interface between civil proceedings and the ECHR can be complex and I don’t pretend to be qualified to explain it here but if you think you have not been heard fairly this may be an avenue to explore with your solicitor.

Article 6 also covers mental health and mental capacity legislation and their associated tribunals which is why both the Mental Health Act 83/07 and the Mental Capacity Act 2005 (including the 2007 ‘DoLS’ amendments) include provision for advocacy and review/appeals processes.

In short, like all the articles of ‘The convention’ article 6 ensures fairness and equitable treatment. Everyone has the right to have their case heard and to be treated fairly under the law. It also makes provision for legal aid, for advocacy and fair access to information (with an interpreter if necessary) and for reasonable consideration in all court proceedings.

So far then we have seen that the ECHR ensures:

Right to life;
Freedom from torture;
Freedom from Slavery;
Right to liberty;
Right to a fair trial.

What’s so bad about that?

In the next post we’ll consider article 7 – No punishment without law.

About ‘The Convention’

This series of posts first appeared on Stuart’s blog in June 2011. It is not intended to be a comprehensive or even particularly authoritative reference guide to the ECHR. Rather it is a brief introduction to a much larger and infinitely more fascinating subject. You can download the entire series in PDF format here: https://stuartsorensen.wordpress.com/amj-freebies-downloads-and-services/