Special Guidance for
dealing with people with Learning Disabilities
This was a Talk given on
1st February 2000 at an ACAL meeting in Manchester at Pannones solicitors by
Nicola Harney of Stewarts Solicitors, London. Nicola is an executive committee
member of ACAL and specialises in dealing with people who have learning
disabilities. This talk is reproduced with her kind permission.
"From 1997 onwards I
have specialised in claims for compensation on behalf of adults and children
with learning disabilities who have been abused.
Previously my background
was in general personal injury work. I was asked to take over a case called
Longcare from one of my colleagues. In 1994 the families of more than 50 adults
with learning disabilities were told that their children, who were over 21, but
with differing mental ages, some as low as three, had been systematically
abused in two residential homes called Stoke Place and Stoke Green which were
run by a company called Longcare, and licensed by Buckinghamshire County
Council.
In 1997 there was a
criminal trial at Kingston Crown Court when three carers were convicted for
their involvement in the abuse. Two of them were given prison sentences. The
owner of the homes, Gordon Rowe, committed suicide before he was due to stand
trial. All three of the carers appealed but were unsuccessful.
The abuse came to light
when the Buckinghamshire Social Services Department received anonymous tip offs
and allegations of abuse. They conducted an investigation into the homes during
1993/1994 and then informed the parents what they had done. However, it
transpired that, earlier complaints to Social Services and the Police had not
been communicated to the parents
In 1998 there was the
"Independent Longcare Inquiry Report" which concluded that Buckinghamshire
failed in its duty of registration and inspection, as the abuse should have
been detected and followed up at a much earlier stage.
I currently act on behalf
of 37 of the people allegedly abused whilst in the care of Longcare and I
assist in co-ordinating the multi-party action.
Since this case I have
begun to take on many more cases of this type. Now this is the majority of my
caseload, and I only have three non-abuse personal injury cases.
As a result of dealing with
these cases, carrying out some research and attending training courses I have
begun to notice the differences between cases involving abuse of children and
people with learning disabilities. Some of these differences make the
solicitor's job easier whereas others make it much harder. I would like to go
through some of the points I have noticed with you today.
1. People with learning
disabilities are generally more vulnerable to abuse than children. Many
perpetrators admit that adults who are more vulnerable in some way are more
likely to be targeted especially if they are cared for outside their own family
in residential or day care settings.
2. Police checks are
mandatory for those who want to work with children but not for those who want
to work with learning disabled adults. It is easier therefore for abusers and
potential abusers to gain such employment within the care system.
3. There is a culture of
abuse in homes for people with learning disabilities as they are seen as more
vulnerable and less valued than children. There is a lack of understanding and
an inability to communicate with people with learning disabilities. If they
display "challenging behaviour" many people believe it is acceptable
to restrain them. As a result there has been a lack of whistle blowers to such
abuse, which can be seen as accepted practice.
4. Convictions in Abuse
cases assist the civil claim by shifting the burden of proof from the Claimant
to the Defendant in an action against an individual. The conviction can lend
weight to a civil action for breach of duty against an organisation. There are,
however, particular difficulties associated with learning disability
prosecutions.
1) The abuser is unlikely
to have criminal convictions recorded against him, due to the lack of
prosecutions or court cases
2) Initially the alleged
victim is not referred to the Child Protection Unit who have specialised
training in obtaining evidence
3) Video evidence and other
matters which are available to assist children are seldom used for people with
learning disabilities.
5. Police evidence gleaned
in criminal cases will undoubtedly be useful to civil claims. The Police in
their investigations are likely to interview a number of victims who later may
become the Civil Litigation group. A group by reason of force of numbers has far
more evidential weight than an individual.
6. People with learning
disabilities and communication difficulties currently are inhibited or debarred
from the criminal justice system Perpetrators feel safe that even if the
offence is classed as a crime they may not be prosecuted. People with learning
disabilities, therefore, tend to be particularly vulnerable to abuse. However,
one possible advantage is that vulnerable adults may be unable to give informed
consent to sexual relations. The defence of consent to a claim of
trespass/assault, therefore, is often not available to the perpetrator.
7. Cases often begin with a
comparatively minor allegation; for example the parents may be aware of a
particular incident. The solicitor must ensure that they look at the regime in
the Home as a whole in order to deal with the case. Often then more instances
of abuse come to light. Finding out the full extent of the abuse, however, is a
costly process, as the client cannot communicate well, and the parents often
just have a feeling that the Home "went down hill". The solicitor
needs to investigate thoroughly in order to find out what allegations could
have triggered the change in the client's behaviour.
8. There is a legal
presumption of capacity unless the contrary is shown. If the client is placed
in a Home due to having a learning disability the solicitor may believe that
the client lacks capacity. Confirmation, however, needs to be obtained from a
GP or Psychiatrist.
9. If your client lacks
capacity you need to appoint a Litigation Friend which could be the next of
kin, advocate, Social Worker or friend. If no-one is willing or able to take on
this role then the Official Solicitor to the Supreme Court can be appointed.
10. There can be
difficulties with a Litigation Friend who is close to the client, for example a
parent. In such a case feelings of guilt can cause psychological distress if
the litigation friend placed the child in a home where they were subsequently
abused. Often the Litigation Friend suffers from anger and disbelief. He may
feel that he should have known about the abuse and done something to stop it
happening sooner.
In addition the solicitor
must consider that findings of abuse in medical notes, Social Services or
psychiatric reports can have a damaging effect upon the parent/litigation
friend.
If the Litigation Friend is
the Official Solicitor or doesn't know your client, then it is often difficult
to find out how the alleged abuse has affected him over the years as the
Official Solicitor has not grown up with the client's changes in personality.
He will not have witnessed signs of unhappiness caused by communication
difficulties. Assessment of damages is thus more difficult.
11. The big advantage the
solicitor has when the client lacks capacity is that the problems traditionally
associated with knowledge and the limitation period in historical abuse cases
do not arise.
12. Social Services records
can be a good way of demonstrating behavioural changes over the years. The
records of assessments and reviews are a good yardstick to go by, when the
client can't tell you, and the person who is the Litigation Friend does not
know the client very well. Also, the records should set out details of the
client's diagnosis and learning disability This is a good way of finding out
how the client behaved prior to the abuse. The documents may also help you to
understand the client's behaviour.
Some Local Authorities will
not accept a form of authority signed by the Litigation Friend. They insist
that a Direction is obtained from the Public Trustee under the Court of
Protection Rules which orders access to the personnel file held by Social
Services. Various forms need to be completed for example an Application, report
on capacity and a fee of £100.00.
Social Services often also
require an Undertaking that the files will only be considered by the Solicitor
and Counsel, and not be released to the client unless a treating Doctor agrees
that it would not be injurious to his or her health.
13. Claims ought to be
fully investigated to find out all of the allegations so one needs to be able
to recognise abuse. Due to limited communication the client may not be able to
disclose. They may give you odd hints or veiled comments There may be no
witnesses to the abuse or the witnesses may not have passed their concerns on
to the relevant Agencies. Thus one needs to be aware of behavioural changes in
people with learning disabilities who are attempting to draw attention to their
abuse. Examples of such changed behaviours are eating disorders, hypochondria,
becoming withdrawn and isolated, poor progress, poor social skills,
self-injurious and suicide attempts.
14. We need expert evidence
to show how the person was developing prior to the abuse. This is crucial to
the question of quantum as abuse does have devastating effects on development.
We need to look at what the client's psychological make-up would have been like
had they not suffered from this abuse. So we need to understand their diagnosis
and behaviour. We must differentiate between behaviours caused by their
learning disability from those arising from abuse.
15. One of the real
problems caused by lack of experience with this type of case is determining the
degree that people with learning disabilities have been damaged. Some take the
view that abuse does not affect a person with learning disabilities as they do
not understand that what happened to them is wrong. Some believe that they are
not capable of emotional insight and forget trauma. Others believe that the
disability can act as a buffer which protects an individual from the
potentially traumatic effects of abuse. The Lawyer will therefore need to argue
that having a learning disability can predispose the individual to being
overwhelmed by the experience of abuse. Consequently the client may be more
vulnerable to psychological and emotional distress. What must be shown is that
despite the learning disability and verbal communication deficit your client
does have access to a full range of emotions.
16. Assessing the impact of
abuse on the client i.e. the psychological damage is difficult. There are
hundreds of published research studies on the long-term sequelae of child
abuse, but only a small handful about people with learning disabilities. From
the research, however, it has been shown that they do have similar problems to
people who have experienced sexual trauma in the general population such as
PTSD, multiple personality disorder and other severe emotional difficulties.
17. Sometimes there is
concern as to whether or not the medical report can do psychological damage to
the client. The interview may trigger feelings again. Thus you need to ensure
that support systems are in place in terms of counselling and staff.
18. Some suggest that
counselling and psychotherapy are ineffective for people with learning
disabilities. Research shows, however, that methods can be adapted to help some
individuals move to a higher level of personal functioning. So therapy needs to
be adapted to use the client's means of communication. However, there do still
remain difficulties in getting through to the client's world.
19. Quantum is difficult.
There are very few reported civil cases. They tend to be claims for criminal
injuries compensation or claims in relation to children.
21. Often what
substantially increases the award of damages is a claim for loss of earnings
,earning capacity, or congenial employment. It is unlikely, however, that the
client would ever have been able to undertake gainful employment. Quantum will
probably be limited to general damages.
22. The increased cost of
care may sometimes be included when the claim is against a body other than the
client's care authority. Sometimes the Local Authority ask that any increased
cost of care as a result of the abuse be repaid if the claim is successful. The
claim is in the form of a "Hooper" claim.
23. There can be problems
with the cost/benefit analysis. The legal costs involved in ascertaining the
full allegations of abuse and then in assessing and measuring the effects of
the abuse are high, particularly when you are dealing with people who have a
very limited ability to communicate or express their feelings. You often need
the input of various people, for example, family friends, social workers and
experts.
24. The above sets out my
own views and observations as to how one goes about dealing with people with
people who have been abused. It gives you a flavour of the particular problems
that may arise."
Nicola Harney
1st February 2000