The Handbook of Forensic Learning Disabilities

Tim Riding, Caron Swann, Bob Swann

• Publisher: Routledge
• Year: 2021
• eBook ISBN: 9781315358482
• Edition: 1
• Topic: Law
• Subtopic: Criminal Law
• Index: Law

This comprehensive and practical guide helps professionals and staff within hospitals change the way they collect record store and use clinical information about patients. It illustrates how clinical governance and evidence-based practice can be easily addressed by modernising clinical information practice to benefit patients and improve staff and service efficiency. As well as helping organisations define and establish improved systems this book is of continuing use for all healthcare professionals who make store and use patient records. 'High quality shared record keeping is recognised as being fundamentally important to good patient care. This book offers an excellent practical approach to addressing the changes needed in clinical record keeping to support improved patient care clinical governance better management information and the move towards electronic patient records. It brings together a strong clinical focus with the informatics principles needed to support a successful move to modern record keeping.' Yvonne Baker and Tricia Woodhead in the Foreword It will be a useful guide for clinicians and all other health professionals dealing with clinical information.

CHAPTER 1

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The policy context

Colin Beacock

• Introduction
• The development of policy in UK systems of government
• Creation of macro-policies
• Historical influences
• The broader policy field
• Conclusion

Introduction

In these early years of a new millennium, it seems appropriate to reflect upon how forensic services for people with learning disabilities are progressing. For legislative purposes, people with learning disabilities have been subject to the provisions of the Mental Health Acts of 1959 and 1983. This situation has given rise to serious concerns, not least because the only similarity between these two groups of people has been the historical use of the word ‘mental’ in making a collective description of their needs. For the purposes of the law, ‘mentally ill’ and ‘mentally handicapped/subnormal’ members of society have been seen as one and the same, albeit with specialist provisions for people in the latter group. This situation will continue when the provisions of new laws take effect, following current legislative developments. In terms of policy analysis, it is essential therefore to consider policy as it relates to people with mental health needs, and to accept that people with learning disabilities, especially those who need a forensic service, are seen from a policy perspective as a subset of that group.

In September 2002, the Department of Health in England published a Draft Mental Health Bill,¹ which led service users, carers and practitioners to make a collective response in opposition to the proposals. The reason behind the opposition of these groups, who have seldom adopted a joint position in the past, was concern that some features of the Bill were too restrictive and threatened the rights of people who use mental health services. As a result the Bill was withdrawn and a further version will be drafted. In Scotland, a similar development is being processed by the Scottish Executive, although the draft of that Bill has not received the level of criticism seen in England and Wales, and the legislation is proceeding through Parliament in Edinburgh. As the legislative framework that underpins forensic services for people with learning disabilities these laws, currently in the process of preparation, will have influence over the well-being of citizens for years to come. In launching the White Paper Reforming The Mental Health Act,² the Secretary of State for Health and the Home Secretary stated that:

The current 1983 Mental Health Act is largely based on a review of mental health legislation, which took place in the 1950s. Since then the way services are provided has dramatically changed. The current laws have failed properly to protect the public, patients and staff. Under existing mental health laws, the only powers compulsorily to treat patients are if they are in hospital. The majority of patients today are treated in the community.

This statement illustrates how services evolve to meet the changing needs of patients and in response to policy decisions that are made by successive administrations. In England in the 1950s, almost the entirety of health services for people with learning disabilities was based in large institutions, with over 55 000 people living in such establishments. In 2003, this figure was reduced dramatically and less than 5000 people were found to be living in large long-stay hospitals. Increasingly, treatment for people in forensic services is regularly provided through a community-based model of care. These changes have come about as a result of a number of policy developments in health and social care, housing, transport, education and a range of other areas of Government priority during past decades. It is important to recognise that the outcomes of policy developments in one area can have significant impacts in another. This is evident, for example, when considering the need for compulsory forms of treatment. In an institutional model of care, compulsory treatment is more easily managed than in dispersed services where patients may or may not choose to comply with the treatment regime they are offered. Hence the shift to more socially based models of care is having an impact upon the nature of treatment and systems of practice and care across a range of professions and services.

The development of policy in UK systems of government

Before undertaking any detailed examination of policy, it is useful to clarify what we mean by ‘policy’ and our understanding of how policy is developed in society. Perhaps the most useful way to understand the term policy within the context of services for people with learning disabilities is to consider it to mean the approach adopted by individuals and groups towards the provision of those services. Thus the policy reflects the beliefs, attitudes and values that an individual, group or a society holds towards people with a learning disability. Consequently, where a society has made a conscious decision to either ignore or systematically abuse the rights of people with learning disabilities (e.g. in the Nazi regime of 1930s Germany), this is reflected in the policy of the time. In England, the publication of the White Paper Valuing People³ emphasises rights such as inclusion, choice and independence to which people with a learning disability are entitled as equal citizens in our society. Although this document may reflect the increasingly enlightened attitude of Government and society towards people with learning disabilities, it is only guidance and has no legal status. This in turn may be seen to reflect a less committed approach to achieving equality for people with learning disability. Valuing People³ makes only one brief reference to specialist forensic services, perhaps indicating a low priority in the minds of policy makers. Whilst seeking to achieve the aspirations of Valuing People, the fact that a set of legally binding National Care Standards⁴ was simultaneously introduced, and that their interpretation can prevent people with learning disabilities from holding tenancy rights, reflects a lack of consistency of policy. It is this lack of consistency and this insensitivity to the specific needs of people with learning disabilities that perhaps best reflects society’s attitude and the policies of successive governments towards vulnerable groups. Policy of this nature, which is generated at national and international levels, can be described as

When any policy is translated into the actions and systems of individuals and groups who provide the service, they will have to adopt principles, regulations and mechanisms to implement the policy. They may adopt positions and attitudes that are derived from or even oppose the macro-policy. Policy which is developed at this level can be described as micro-policy. Micro-policy can be localised and reflect views and attitudes that are particular to small groups and individuals. There is the distinct possibility of conflict between macro- and micro-policies in forensic services for people with learning disabilities, arising in part from the essential nature of society’s need to punish miscreants and offenders. Whilst a government, or provider organisation, may adopt a highly principled and humanistic approach in its service policies, the practice and policies of practitioners may well be at a complete tangent to that. This is as much a reflection of the cultural status of the service users’ provider organisation as it is of the value of micro- or macro-policies. It is this situation that has given rise to a history of inquiries in forensic services for people with learning disabilities. Only in recent years, have those inquiries come to terms with the fact that policies, however highly principled, are only as effective as the people who interpret and apply them. In realising this, there has been an increasing tendency for governments and society to adopt policing methods to ensure that the policies, in the form of standards, are maintained. As a result, it can be argued that this has led to increasing control by central government that espouses a policy of increasing localised freedoms and autonomy in services for people with learning disabilities. These are dilemmas which characterise policy development in UK welfare services at the start of the millennium. As such, the dilemmas have come to fruition in the development of mental health policy and especially in forensic services.

In the case of the Draft Mental Health Bill,¹ it is the very fact that the most controversial of proposals have related to forensic services for people with personality disorders which may give the best indication of how a macro-policy may be in conflict with the principles of practitioners. It may also be the case that those practitioners have developed micro-policy which conflicts with the popular views of mainstream society. For example, the notion of preventative detention on the one hand provides a sense of public reassurance, yet on the other hand it contravenes the value base that underpins contemporary practice. This tension is demonstrated in the conflict between the priorities expressed by the politicians who have developed the Draft Mental Health Bill¹ and those expressed on behalf of practitioners, carers and service users by the Mental Health Alliance.⁵

In the White Paper that led to the Bill, the Secretary of State for Health and the Home Secretary indicated why they had felt it necessary to emphasise compulsory treatment and special services for people whom they described as being ‘high-risk patients’:

The majority of patients are treated in the community. But public confidence in care in the community has been undermined by failures in services and failures in the law. Too often, severely ill patients have been allowed to drift out of contact with mental health services. They have been able to refuse treatment. Sometimes, as the tragic toll of homicides and suicides involving such patients makes clear, lives have been put at risk. In particular, existing legislation has failed to provide adequate public protection for those whose risk to others arises from a severe disorder. We are determined to remedy this.

Of course the vast majority of people with mental illness represent no threat to anyone. Many mentally ill patients are among the most vulnerable members of society. But the Government has a duty to protect individual patients and the public if a person poses a serious risk to themselves or others.¹

Clearly, the priorities for Government are public protection and control of potentially dangerous people where compulsory treatment is very difficult, especially if they are not detained. Although it recognises the vulnerability of people who are mentally ill, its priority is clearly for the protection of others, rather than for the patient. There is a sense in which the patient must accept responsibility for their treatment through compliance, and in which failure to do so will result in either a loss of service or treatment.

This position contrasts markedly with that held by the Mental Health Alliance, a group of organisations and individuals who came together with the specific purpose of opposing parts of this Bill. The Mental Health Alliance⁵ called in particular for the Bill to emphasise rights rather than compulsion, and said that they wanted the Bill to include a number of features, including the following;

• a reduction in compulsory powers
• an individual right to assessment of needs, and to have those needs met
• statutory enforcement for advance directives
• a law which takes account of people’s capacity to make their own decisions about treatment
• adequate safeguards for treatment without consent.

The Mental Health Alliance⁵ described their rationale and priorities as a lobbying group as follows:

There has been widespread criticism of the Bill and the Mental Health Alliance is determined to change it. We want to keep the best of the proposals, such as rights to advocacy and a new tribunal system, but change the parts which could see far more people subject to compulsory treatment. What the Bill lacks is any right for people to receive the mental health service they need. We want to see a Bill that gives people rights, not compulsion.⁵

Given that the Government is prioritising public protection and the Mental Health Alliance is emphasising the need to protect patients, carers, service providers and practitioners, the variation in their priorities is understandable. What has been surprising, however, has been the strength of influence that the Mental Health Alliance was able to exert in causing the Bill to be withdrawn from the Queen’s Speech in October 2002. Given that both parties wish to see amended legislation, an improvement in services and more protection for the public and individual patients, the debate will continue and hopefully produce a more appropriate and robust form of legislation. This apparent ambiguity is a product of our system of democracy and policy development.

To understand how this situation could have arisen and how modern service policies have developed, we need to examine a number of factors which influence policy development.

Creation of macro-policies

The first factor to consider is how governing policies, at macro-level, are produced and to what degree they reflect the views of society. If policy reflects societal attitudes, beliefs and values about certain groups of people, it can also be said to reflect the sophistication of the mechanisms that produce it. In considering this point we need to reflect upon the means by which macro-policy is produced in our own society.

At a macro-level, as it affects people with learning disabilities who need forensic services, most of the policy that impacts upon their lives is generated at a national level. In the UK, it could be argued that policy only reflects t...

Table of contents

• Cover
• Title Page
• Copyright Page
• Table of Contents
• Foreword
• Preface
• About the editors
• List of contributors
• Chapter 1 The policy context
• Chapter 2 Epidemiology of offending in learning disability
• Chapter 3 Sexual offendingin people with learningdisabilities
• Chapter 4 Arson and learningdisability
• Chapter 5 Working with people with aggressive behaviour
• Chapter 6 Self-injurious behaviour and deliberate self-harm
• Chapter 7 Risk assessment and management
• Chapter 8 Criminal justice liaison
• Chapter 9 Mental health law
• Chapter 10 Organisational culture and its impact on service delivery
• Chapter 11 Resettlement from secure learningdisability services
• Index