A Fair Say?

Equal Say commissioned the Law School at the University of Stirling to carry out research into whether people with learning disabilities had the same opportunities as other citizens to have fair access to justice. We are grateful to the Investing in Ideas fund of the Big Lottery and to the University of Stirling for funding the research project. Our opening remarks in the grant application are repeated below to give a flavour of why we felt this work was needed. The full research findings and brief Executive Summary are available by following this link.

Much has changed in the 21st century for people who have learning disabilities. Health Boards and Local Authorities finally agreed that warehousing people in massive long stay hospitals was wrong and that people with disabilities should have the right to have a front door key and to live in the community. People with learning disabilities were no longer referred to as 'patients' who were 'sick'; the millennium heralded an emancipation from strict control and group living to a new dawn of individual choice and self-determination. In Glasgow, Lennox Castle Hospital (which at one time had over 1700 'patients') closed its doors for good in 2002.

This application wants to test the reality about whether people with learning disabilities are indeed living in a new dawn of individual choice and self determination, or, are people being undermined by the very legislation that was drafted to ensure that their rights were upheld.

The repatriation of people with learning disabilities back to the streets and houses where they once used to reside was driven by the new Scottish Parliament. Policy was changed and Health Boards were instructed to cut beds and transfer their budgets to community based Social Work teams. A wholesale growth in community living was enabled by hundreds of millions of pounds being redirected toward care providers by way of Social Work commissioning private and voluntary sector providers.

The early legislative programme of the new parliament was characterised by social policy law and in the last decade we have seen the introduction of:

1. The Mental Health (Care and Treatment) (Scotland) Act 2003 - which covers anyone with a 'mental disorder' which includes learning disabilities. A person can be detained if they are deemed to be at risk of harm to themselves or others.
2. The Adults with Incapacity (Scotland) Act 2000 - some people will be assessed as lacking capacity. Many people with learning disabilities are affected by this Act.
3. Adult Support and Protection (Scotland) Act 20 - this has a wider remit. It covers adults at risk of harm from others, for instance, family members or carers. This applies to anyone at risk, but would include those with learning disabilities.

All of these laws may be applied to people with learning disabilities and the powers the various acts give to Social Workers and Doctors are vast and wide ranging. For instance, a person can:

• be detained against their will and taken into hospital
• have their finances controlled
• be told where to live
• be told who they can and cannot associate with
• be told who they can and cannot live with

All three of these major social policy laws have been held up to be some of the most progressive in any modern democracy and there is no doubt that each of the Acts contain valuable principles that underpin the individual having their rights protected.

The draughtsmen who constructed these laws have been praised for the quality of the legistaion, however, we know that good legislation in itself does not automatically lead to good practice and good outcomes for individuals.

As an advocacy office we have much experience of championing people's right to be heard and their views taken seriously. However, we have come across many stories of people not understanding their rights or the laws that are being used to intervene in their lives. Often this lack of knowledge leads to individuals not seeking legal representation. Our view is that nowhere near enough people get access to a sympathetic and knowledgeable lawyer to fight their case. We feel that this raises serious human rights and access to justice issues.

This application seeks to do two things:

1. to research whether our anecdotal experience as a busy advocacy provider is correct and that there are barriers to people with learning disabilities getting a fair say through the law.
2. to recommend a way of breaking down these barriers to ensure better access to justice for people with learning disabilities in a manner that respects their individual needs and their capacity to understand and respond.