Item 4 on the agenda is the Mental Health (Scotland) Bill. We have with us to give evidence Norman Dunning, who is the chief executive of Enable, and Pat Christie, who is also from Enable. Nicola Smith is a solicitor, but I take it that she is with Enable as well.
That is correct.
Thank you for attending the committee. Can you explain a little bit about your organisation and the interests that it represents?
Our organisation represents all people with learning disabilities in Scotland. It is a member organisation, but we hope in our work to represent everybody, regardless of whether they are members of Enable. We are interested in all matters, particularly legal ones, that concern people with learning disabilities, whom we try to support and help in their daily lives.
You say that yours is a member organisation. Are your members other voluntary groups or are they individuals?
They are individuals.
Can you give me an idea of how many members you have?
There are about 4,000 members in local branches and about 500 national members. Two thirds of the national members are people with learning disabilities.
How does your structure operate? Do branches put forward ideas or views?
Branches put forward ideas. We have branches throughout Scotland. We also have individual members, as you heard. In particular, we have a committee known as the advisory committee of Enable, which is made up entirely of people with learning disabilities. Our advice comes from them. We take matters such as the bill to the committee and take the committee members' views.
Is it appropriate to call yours a grass-roots-up organisation, rather than a top-down organisation?
Exactly.
We would like to think so.
I want to talk about general criminal law and specific statutory offences. The Millan committee and the Scottish Executive both considered whether sex offences found in the general criminal law were sufficient to protect people who suffer from a mental disorder, but they concluded that specific statutory offences were necessary. Before we get into the detail of what we are discussing, we want to get on the record Enable's view about whether the judgment by Millan and the Scottish Executive that specific statutory offences are required is correct.
Yes, we have taken that view, and not without a great deal of thought and consideration. The organisation has been talking about the issue for about 18 months. On balance, we feel that there needs to be a statutory offence, not least because of what we believe to be considerable under-reporting of sexual offences against children and adults with learning disabilities. We feel that the issue needs to be highlighted. The law helps us to do that.
I think that to some extent my questions may have been answered. Section 106 of the Mental Health (Scotland) Act 1984, as Norman Dunning said, and section 13 of the Criminal Law (Consolidation) (Scotland) Act 1995 contain provisions in respect of sexual acts against someone with a mental disorder. Are the provisions within the bill sufficient?
Yes. We are comfortable with the new legislation. We feel that it will cover the various aspects about which we are concerned. We will be happy to publicise the bill, if you like, so that it is better known than the 1984 act was.
We are pleased that the new statutory offence will carry the same penalties as under the common law. A problem with section 106 of the 1984 act is that someone convicted under it receives a much lesser penalty. As I said, not many cases have been brought under section 106, but we were involved in at least one in which the defence attempted to plea-bargain and to accept a guilty plea for a charge under the section in exchange for the charge of rape being dropped. The bill would remove that possibility. It would make it clear that an offence against a person with a learning disability would be every bit as serious as, for instance, rape. We think that, on that matter, the Executive framed the bill in the right way.
Under section 213 of the bill, it will be an offence for an individual to have a sexual relationship with someone who is incapable of consenting to the act by reason of their learning disability. That will mean that a category of people with learning disabilities of a certain severity will not be able to engage in sexual relations. Is that acceptable?
We are pleased by the way in which section 213 is drafted, as it makes an issue of whether somebody is able to consent. Under previous legislation, it was essentially an offence to have a sexual relationship with any woman with a learning disability, regardless of their capacity to consent. The new offence appears to us to recognise that some people will have the capacity to consent to a sexual relationship. Enable supports the right of people who are able to consent to engage in sexual activity.
The matter caused a lot of discussion in our organisation, because we are concerned not to infringe the rights of adults with learning disabilities who can consent to engage in sexual relationships. We feel that section 213 is framed in just about the right way.
You will have noted that, under the bill, the maximum penalty that can be imposed for the main offence under section 213 is life imprisonment. Are you satisfied with that proposal?
That recognises the seriousness of the offence. It brings the penalty into line with that for rape and other offences, particularly sexual offences against children. We are happy to see the increased sentence.
I am mindful of a television programme that was broadcast not so long ago about two people with learning disabilities who were engaged in a relationship. Are there difficulties when both parties have learning disabilities? We have tended to think of the issue in terms of someone without a learning disability imposing their will on someone who has a learning disability, but what about the question of whether a relationship is consensual when both parties have learning disabilities? Will that be tricky?
That is a good point. In our groups of people who have learning disabilities, there is a strong element of some people dominating others. That can happen in any circumstance. You might say that it is similar to what can happen among children—somebody is the big boss and other children kowtow to them. Those who supervise people will have a feeling for that. The bully-boys may be well known and looked out for. That situation is bound to happen; it happens with normal people. We are talking about trying to let people who have learning disabilities lead normal lives. The weaker person—
I did not necessarily mean the weaker person. I just meant someone with a learning disability engaging in something and misunderstanding or misreading consent.
We recognise that the law is a blunt instrument in personal relationships. We will not get the subtlety that we want through legislation. Enable is concerned about the general lack of education on relationships—particularly sexual relationships—for children and adults with learning disabilities. That is where the issue must be tackled. Part of the vulnerability comes from people not having the range of experiences or formal education that others have when they are growing up. Addressing that issue is the way to tackle the problem so that people engage in relationships that they understand and, for example, take the necessary family planning precautions that they would want to take as responsible citizens like anybody else.
How can you define whether somebody is able to give consent? Is the decision an objective or subjective one?
It is incredibly difficult to judge whether someone is able to give consent—or, in some circumstances, whether they have given consent. The bill goes some way towards addressing that, as section 213(4) gives some explanation of what "incapable of consenting" means. The issue is difficult. Perhaps it cannot be addressed through the law. It is difficult even to think of a practical test that could be applied to everyone, but I suppose that there must be some assessment of the person's level of understanding of the sexual act and its consequences.
Are you happy that the bill covers ability to consent as best it can?
It defines it as much as it can be defined. Every case will be different. It is difficult to set down in writing a test that someone could pass or fail.
Your written submission mentions improving access to sex education programmes for people with learning disabilities. Is any funding provided for that?
We are running a modest programme with the aid of European money from the Daphne programme, which, I regret to say, comes to an end in December—we would like it to be extended. The nature of our programme is to train adults with learning disabilities so that they can offer the training to others—a sort of peer education. We think that that is the best way into the matter. With the best will in the world, it is always difficult to put ideas across. Most people learn better from their peer group—those who share the same sort of experiences and understanding. That is our approach, but we would like a much more comprehensive approach. For instance, Enable is not touching the issue in schools. There is a big need to provide sex education to youngsters with learning disabilities in schools.
Section 213 creates a secondary offence of
Even though that was a theoretical danger with section 106 of the 1984 act, staff were never actually prevented from offering sex education. Some people had the concern that you mention, but my recollection is that the Lord Advocate of the time gave a direction that clarified matters and said that sex education could be offered. The legislation has not stopped us in the past and we believe that the wording of the bill is okay.
Do you want to say anything else about the provision of sex education?
I think that we have said all that we want to say. In a sense, the issue is more important than the narrow statute.
You said that you hoped that sex education could be dealt with in schools.
Very much so, but there should also be sex education for adults.
Section 215 creates the offence of sexual abuse by formal carers and care staff. The offence will replace an existing offence under section 107 of the Mental Health (Scotland) Act 1984. Is the new offence an improvement on the existing offence? Are there any difficulties with it?
The provisions are an improvement, as they make it clear that they apply to anybody in that professional caring capacity. The 1984 act seemed much narrower.
That aside, the bill offers a fairly similar level of protection to what there was previously. One of our concerns about section 215 is the definition of "sexual act" in subsection (6). We think that the definition is a little unclear. We are not entirely sure what type of activity subsection (6)(a) refers to.
Does the bill contain a definition of formal carer? Who would formal carers be?
I cannot find a reference to them, but I remember reading that the term refers to those who are paid to offer the service.
Could that be a family member who gets money from the state for caring?
We are aware that a lot of abuse can happen within the family. The matter is not mentioned, so I think that we must take it that a formal carer can be the family member who is the primary carer.
You referred to professional carers, who are different from formal carers. I would expect one to be from an agency, for example.
I used the word "professional" in respect of someone who is paid to offer care.
I see. So someone who is paid—even a family member—would fall within the remit of the section.
We must take that to be the case, particularly with the advent of direct payments through more informal arrangements to pay people to care. We would support such a definition.
Section 217 creates the offence of ill-treatment and wilful neglect of a person suffering from a mental disorder. Are you satisfied with the provision as it is drafted?
We are. Obviously, we are talking about a significant part of the bill, but section 217(2)(b) says it all. Ill-treatment and wilful neglect cover many things and we are comfortable with that.
I apologise for being late. Are you satisfied with the definitions of mental disorder? I ask as I have just read a play by W Somerset Maugham in which a chap is going to be locked up because he tries to apply practically what is in the New Testament. There are various views of mental disorder. Are you happy with the definitions in the bill?
Fundamentally, we are not, as we would not wish learning disability to be covered by a mental health act at all. We would prefer learning disability to be dealt with separately within the law; we would prefer the special protections that are given to people with learning disabilities in the bill to be dealt with differently. At the moment, the approach is necessary, as there is no alternative measure, but for a long time there has been huge confusion in the public mind in respect of people who have a learning disability and people who have a mental illness. The fact that learning disability is covered by the bill and defined as a mental disorder perpetuates the confusion.
Do you recommend that we rewrite the bill in the way that you have just suggested or that we go along with it and urge the Executive to introduce a different bill at another time?
We ask you to do the latter, Mr Gorrie. We noted that the Millan committee suggested that a learning disability bill should be considered. We will ask the Executive to do that, but, given the complexity of the task, such a bill would take at least two or three years to prepare. In the meantime, we would like the Mental Health (Scotland) Bill to offer protection and then, if necessary, to repeal the definition of learning disability as a mental disorder in a new act in future.
I return to the subject of formal carers. Section 217(1)(d) refers to a person who
We noted that. We do not want to put volunteers off volunteering, but we must have that protection nevertheless.
Absolutely.
Mrs Christie is right. We have many volunteers in our organisation and when we discussed the matter with them, they felt that, in some ways, they had closer and more intimate contact with clients than paid carers did. For the protection of the individual, volunteers have to be included.
How does the bill interact with the Regulation of Care (Scotland) Act 2001? Would a register of approved carers mean that your volunteers would be screened?
As far as I am aware, such a register would not directly come within the meaning of the 2001 act, although some volunteers already undergo criminal screening. The Executive has made it easier for that to take place by setting up Disclosure Scotland. In addition, volunteers can be screened without fee.
Perhaps I should not have gone down this track, but the notes on the bill say:
I do not think that we are helping you much at the moment.
I am not helping myself either, but as I have opened the subject, perhaps we should be clear about it.
In a general sense, we believe that the protection of the bill should apply to relationships that exist between anybody who acts in a caring capacity and the individual, whether the carer is a volunteer or paid. I realise that we are getting confused about definitions.
According to the explanatory notes, the offence does not apply to informal carers. I bring that to your attention.
The bill refers to people in a position of trust who will not abuse that trust, even with consent.
Yes, that is the issue. Thank you.
Do members want to raise any other issues with the panel? Does the panel want to draw to our attention anything that we have not asked about?
No, not in part 17.
As the secondary committee, we are concerned only about part 17, which deals with offences. Have you had the chance to address your other concerns with the lead committee—the Health and Community Care Committee?
No, not yet, but we will do so.
Therefore, you do not need us to give you that opportunity.
We do not expect that to happen. The orders put more formally and clearly what ought to be happening. However, under section 52(1) of the 1995 act, which stays in force, the prosecutor will have a duty to bring before the court evidence as to the mental condition of a person who appears to be suffering from a mental disorder. We will have a different regime, but the impact on our work will be broadly neutral. With regard to resources, we hope that the change will make things easier for the courts by breaking the process down a little.
From your words I glean that the change will be of assistance to you by consolidating the present position and making the procurator fiscal's role more comprehensively understandable.
In relation to protecting people who suffer from a mental disorder from sexual abuse, one of the issues that the Millan committee and the Scottish Executive had to consider was whether specific statutory offences were necessary or whether protection could be provided by the general criminal law. Has the Crown Office encountered any difficulties in bringing prosecutions under the general criminal law where the alleged victim was suffering from a mental disorder?
There are difficulties with such cases, whether under common or statute law. Those difficulties have a lot less to do with the content of the law than with the problems that are inherent in sexual offences, which tend to happen in private. The situation is made more difficult if the victim has difficulty appreciating that they have been abused, understanding what to do about it or communicating what happened. We have had difficulties, but not with the content of the law.
How do you judge the issue of consent in a case that involves victims such as those whom you described?
I listened to the previous witnesses in the hope of getting an answer to that question. There is an indication of a definition somewhere in the provisions but it does not tell us much at all.
Is that in section 213, which deals with non-consensual sexual acts?
Yes. Consent is always a difficult matter. Although it sounds as if I am trying to avoid the question, consent should be considered on the facts and circumstances of a particular case. Indeed, that has to be done in any sexual offence. The committee will be aware of Lord Advocate's reference no 1 of 2001, in which—
Please tell us about that case. It does not leap into my mind.
The committee might recall that, a couple of years ago, there was an acquittal in a rape prosecution on the basis that the Crown had not proved force. The Lord Advocate referred that point of law to the High Court, which reformulated the definition of rape as intercourse that is obtained without consent. The focus now rests on consent or its absence instead of on force, which becomes a means of proving an absence of consent. That goes right through the matter.
I want to pursue the matter of consent, because I asked about the difficulties in a situation that involves two adults with learning difficulties. The problem with section 213 is that some people who could not be said to have the legal capacity to consent to sexual relationships nevertheless enjoy sexual activity that is not exploitative. Will such a situation present difficulties for prosecutors?
Your example is based on a potential accused who has a mental disorder in the broad sense that is used in the bill. In such a case, one would always be a bit slow to prosecute, because surely there would be a more constructive way of dealing with the matter. Of course, that would depend on what has been done and whether any safety issue is involved. We would also seek and be guided by clear expert guidance from witnesses who are professionals in the field about the current state of knowledge concerning the question of what is and is not reasonable.
Is it at the Crown's discretion to pursue the matter in that manner either in the public interest or in the interests of the alleged victim?
That is right. There is a question whether the elements of the offence have been made out. In some cases, it would be difficult to show that the accused person had the necessary intent in order to constitute the crime. In that situation, there would be an insufficiency of evidence. As that would assume a mental disorder that was towards the more serious end, one would need a psychiatrist to explore that issue before one could be satisfied that the mens rea was made out and that the issue of the Crown's discretion came into it. Once we had something that amounted to mens rea, we could get into the issue of discretion, and at that point we would want to have the best possible expert guidance on what is known about the whole situation. I do not necessarily mean what is known about the facts, but what is known about the sort of activity that involves persons with the particular disabilities that the accused and the victim—if that is the appropriate word—had in a particular case.
I understand that the difficult issues will test the legislation. Is the Crown's decision final? If the Crown exercised its discretion and decided not to prosecute for a whole range of reasons, is the option of private prosecution still available?
In theory, a private prosecution would be possible. However, there were only three such prosecutions in the whole of the 20th century.
Otherwise, the Crown Office's discretion is final.
The Lord Advocate's discretion is final.
I hope that this question is not crass. Is not it usually clear from the body language of the person who is being interfered with at what point he or she is not enjoying what is going on? Is the mental problem such an issue?
I do not think that I can answer that with regard to mentally disordered victims in particular, but it is commonplace in ordinary rape prosecutions for it to be said that it was not clear from the victim's body language whether she was enjoying and consenting to what went on. The issue goes before juries every week and it can go either way.
Is one of the problems the presumed difficulty of a person with a mental disorder being a credible witness and being able to explain what went on? Is that an issue?
It is an issue, but it is a separate one. Once there is evidence, whether from the victim or from others, that seems to establish that the victim was, indeed, a victim and did not consent, the court has to be persuaded beyond reasonable doubt. Although there is no question of a person who suffers from a mental disorder being automatically excluded from competence as a witness, an obvious point for the defence to make is about the reliability of what the witness says. In some cases, that point might be criticised as being based on prejudice rather than knowledge, but it will be made.
When we were talking about the difficulties of bringing prosecutions under general criminal law, you said that the issue was communication, whether the offence was reported and whether the victim understood what had happened.
I want to be a little bit cautious when answering this question. I got notice of the question on Friday and I have tried to get hard information, but I have not yet succeeded.
Will that change? Will the proposed provisions make the evidence situation any easier?
I think not. I have difficulty in seeing what legislation could do to make such cases easier, unless one was to take radical steps in relation to the law of evidence and put in place a special regime for this sort of offence. I would not urge the committee to do that.
As the Enable witnesses said, it might be a matter of education, which would result in more victims coming forward to report what has happened to them. That would provide more insight.
To refer to the analogy with children—in so far as that is reasonable—I note that ChildLine is saying that children are now reporting matters much more quickly than they used to. That seems to be because of education about what is possible. More education might achieve a higher level of reporting. Of course, we are assuming that more offences are being committed than are being reported. That seems to be a reasonable assumption, although we do not know it to be true.
I have a more general point to make. Part 17 of the bill creates four new statutory offences, three of which are designed to protect from abuse persons suffering from a mental disorder. The other is intended to ensure that authorised individuals such as social workers can carry out their functions under the bill.
Throughout the progress of a bill, the Crown Office policy group has conversations with the policy-making department about how things might be altered and improved. Things that happen in committee can affect that. At present, we are as content as we can be with the drafting. I am not urging anything by way of alteration at this stage.
On the main offence under section 213, which concerns the sexual abuse of a person suffering from a mental disorder, the Millan report stated:
There will be a large role for prosecutors, but I do not know that there will be an even bigger one. We must remember that it is already the law that a husband who has intercourse with his wife without her consent is committing the offence of rape at common law, whether or not she has any kind of mental difficulty. There will be an issue of discretion or judgment for the prosecutor.
So discretion should remain. You would rather that it was available to you.
I think so, yes, primarily because of the risk that any defence would catch a relationship that was abusive but which only came to light after the onset of a mental disorder.
The evidential problems seem to grow, do they not?
Yes.
Recommendation 21.9 of the Millan committee report stated:
No, there is not, perhaps because of what I am about to say. I was a bit startled to read that we should give guidance on sex education, because I do not think that that is our role. In the context, I think that the suggestion relates to the issue of inciting or encouraging. The Millan committee refers to correspondence attributed to the Lord Advocate in 1985, in which he said that
I wonder to whom such guidance would be issued. Would it be to formal care organisations?
The Millan committee suggested it. It looks as though the Lord Advocate wrote a letter like one that he would write to this committee to ask a question and put it into the public domain. Guidance will certainly be issued to procurators fiscal about the Mental Health (Scotland) Bill, assuming that it becomes an act, because we do that for every piece of legislation. However, we will not offer guidance to the general public or carers about sex education. I do not think that that is our business.
I can see that. Do you think that including section 213 might have a preventive role in prospective or possible sexual or physical abuse of people with disabilities? What is your view, given your experience in prosecution?
One hopes that the presence of something in an act of the Scottish Parliament or of the Westminster Parliament acts as a disincentive to the conduct described. However, as a prosecutor, I see only the cases in which that has not worked.
But in your experience, when legislation has introduced a disincentive—or, as I put it, a preventive measure—have you seen a change take place? The evidential problems would seem to be enormous if someone came to you with a case. The whole committee appreciates that.
It is difficult to comment with any certainty, because as awareness is increased by the process of legislation one finds an increase in reporting, and those may well balance each other out. I have not done work on it, so I cannot comment.
Are there any issues that we have not touched on that you would like to address?
No.
Thank you for coming.
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