Mate Crime, Capacity and the need for a ‘Vulnerable Adults Bill’
Rod Landman (Regional Officer, South West) looks at the particular legal challenges raised by mate crime, and argues that the need to protect people who are victims of such crime need to be balanced with their fundamental human rights in the form of new legislation.
It is now 10 years since the Serious Case Review was published into the death of Steven Hoskin in Cornwall, an event which began ARC’s investigation into ‘mate crime’ and people with learning disabilities, and the start of the Safety Net project. Steven’s death, along with a series of other horrific murders, coincided with a number of reports from ARC members concerned with service users being befriended in the community by people whose sole aim was to abuse or exploit their ‘mate’ with a learning disability.
One of the things that made ‘mate crime’ so troubling was that agencies whose duty was to protect people from abuse and exploitation seemed unable to do so in these cases. ARC members frequently expressed their frustration as their reports were passed from the Police, to Safeguarding, to Housing, and back again, without anyone appearing to be able to take action. The response often being, “Well, they have mental capacity, so it’s just an unwise decision. Nothing we can do.”
It has often seemed to me that the initial framing of the MCA was far more to do with protecting people’s freedom and choice, than it was to do with their protection. There’s nothing wrong with that, and I have always applauded the MCA as the single most progressive piece of legislation that has been passed in my 35 years in learning disability services. However, when mate crime started to be identified, one could start to see its limitations.
So, we have a grey area where people who have capacity for a decision appear to be consenting to abusive and/or exploitative relationships, but their behaviour is not so wilfully perverse that they can be sectioned under the Mental Health Act. Whether you can, in law, in fact consent to an abusive relationship is an interesting point, but one (for reasons of brevity) I will not go into here; suffice to say that such a choice would not, theoretically, be legally valid if it was coerced. Which sounds fine, until you realise that the only place in law that coercion is satisfactorily defined is in cases of domestic abuse and violence. This can only be applied in familial relationships, which is rarely a feature in mate crime.
What we are left with is the Inherent Jurisdiction of the court; but this is messy, expensive, incoherent, and runs the risk of riding roughshod over people’s freedoms at the whim of a judge.
Change is needed – campaign for new legislation:
Following discussions with other organisations over the last few months, ARC is now proposing a change in the law that addresses these concerns, and tries to answer the question, “What do you do if someone who has capacity acts in a way that is clearly contrary to their best interests?” Whilst I would completely defend the rights of someone with capacity to make ‘unwise decisions’ I believe this should stop short of coerced consent to an abusive or exploitative relationship.
ARC has launched its campaign with Alex Ruck-Keene at 39 Essex Street Chambers (acknowledged national experts on capacity law) and Robin Bush at Autism Together (who published influential research on mate crime in 2015). We have been successful in an initial application sift to the Law Society to promote a ‘Vulnerable Adults Bill’; now, in order to progress this initiative, we need to evidence the impact of the issue. For this we would like the support of ARC members.
Our proposal to the Law Commission for the Bill was submitted by Alex earlier this year. The Bill would give the opportunity (in Alex’s words) to:
- Clarify the scope of those to whom protection should be afforded, having regard to the relevance of disability and the provisions of the Convention on the Rights of Persons with Disabilities;
- Clarify the basis of and the rationale for intervention in the affairs of those considered vulnerable, again by reference (where relevant) to the Convention on the Rights of Persons with Disabilities;
- Establish principles for such intervention akin to those set down in the MCA 2005;
- Clarify the dividing line between those considered to lack capacity for purposes of the MCA 2005 and those falling within the definition of vulnerable adults, and provide a statutory basis for jurisdiction to be exercised by the courts over such vulnerable adults;
- Consolidate and amend the law relating to such matters as:
a) The powers of the courts to ban suspected perpetrators of abuse from contact with or residence at the place of an adult at risk;
b) Protection of liability for those involved in protecting vulnerable adults (including by disclosing confidential information where relevant);
c) Offences committed in relation to vulnerable adults including financial and other abuse, for instance by extending the scope of the offence of coercive and controlling behaviour contained in the Serious Crime Act 2015.
We need your help and support!
At the time of writing, the Law Commission has selected the proposal for further consideration, with a final decision to be taken in May 2017. Key to this decision will be evidence on the impact of the problem and the benefit of reform, and we are therefore seeking:
- Case studies – from ARC members, carers, and people with learning disabilities.
- Support, either for the Bill in general or for specific aspects.
- We would also be grateful if this could be disseminated amongst your contacts in order to garner further support and (ideally) help us to gather the necessary evidence.
For further inquiries or to lend support, please contact Alex Ruck Keene at firstname.lastname@example.org
ARC’s Regional Officer, Rod Landman, can also be contacted in connection with the proposal: email@example.com or tel. 01237 441786.
Use of the word ‘Vulnerable’
I am well aware that some readers may have concerns with the word ‘vulnerable’ being attached to people with learning disabilities. I would count myself in their number. The social model of disability argues that there is nothing about a learning disability that should inherently mean that they are ‘vulnerable’. Indeed anyone in society could count themselves as vulnerable in certain circumstances. Hence, the increasing use of the term ‘vulnerable situations’ rather than ‘vulnerable people’. I would support the use of such language, but would also want to say that I believe that many people with learning disabilities find themselves in vulnerable situations more commonly than most people in society.
In this particular context the term ‘vulnerable adults’ is used deliberately as this is the term that is used by the High Court when exercising its inherent jurisdiction over individuals. Our campaign recognises that the term is not one used in modern legislation such as the Care Act 2014/Social Services and Well-Being Act 2014 and associated guidance. Part of the project we propose would be to identify a more appropriate term.
In the meantime
Our campaign will proceed with all due optimism, but recognise that there is a long and bumpy road ahead. In the meantime, and making the best of the current situation, I would urge any ARC member who has concerns about the issues raised here to consult the useful guidance produced by SCIE: What should you do when a person with full mental capacity acts in a way that is a risk to their safety or wellbeing? You will need to register with SCIE, and can then download the guidance here.
ARC Regional Officer, South West England