Using the Law to Protect People With Learning Difficulties

A couple of days ago, I read a blog post so simple and transparent that it took me a few minutes to realize just how obvious the point was that the author was making.

That author is Mark Neary, and he blogs over at Love, Belief and Balls.

Mark starts his post with a reference to the pals-together breakfast meeting during which Sir Stephen Bubb and his colleagues came up with, and announced, a plan to meet the government pledge to move all people with learning difficulties out of assessment and treatment centres (‘inappropriate inpatient facilities,’ as Bubb termed them) and to return these people to care ‘near their families and in a community setting.’

In case anyone needs reminding why the pledge – deadlined June 1 and not met – matters, Mark also dropped in the hashtag for a campaign called ‘Justice for LB.’ #justiceforlb is a campaign to get justice for the son of its founder, Connor Sparrowhawk. Suffering from epilepsy and learning difficulties, Connor died in a bath in Slade House, Headington, Oxford – an ‘inappropriate inpatient facility,’ a young man whose life ended at 18 in what an external investigation called a ‘preventable’ death, and a sad reminder of the kind of ‘care’ all too many people with learning difficulties and other problems receive.

The plan, it turns out, is not a plan, more a loose collection of wishful thoughts. And the #justiceforlb campaign is still struggling along – innovative, angry, full of heart and short of cash.

There’s plenty to think about there – but where’s the ‘eureka’ moment?

It’s this:

‘What is needed is a statutory presumption that a person lives in their own home.’

That’s not a new idea: it’s one of the key clauses of the Magna Carta that ‘no free man shall be taken or imprisoned… but by the lawful judgement of his peers, or by the law of the land.’ The idea that the citizen is not the property of the state is at the heart of our ideas of democracy and it’s reaffirmed over and over again, in British and EU law. So when did this fundamental human right – the right to liberty and due process under the law – stop applying to people with disabilities or learning difficulties? When did it stop applying to Connor, or to the inmates of the notorious Winterbourne View?

According to the EU Convention on the Rights of Persons with Disabilities, which begins by ‘recognizing that the United Nations, in the Universal Declaration of Human Rights and in the International Covenants on Human Rights, has proclaimed and agreed that everyone is entitled to all the rights and freedoms set forth therein, without distinction of any kind,’ never.

Which brings me, after all that, to the point Mark Neary makes in his post. The sit-up-and-blink suggestion that lives up to the title of his blog.

Why don’t we simply use the law?

Disabled people are entitled to the same protection under law as anybody else. If someone came to your door to take you hundreds of miles to your family, you wouldn’t be satisfied with their assurances that it’s very nice and you’ll like it there. You’d want a better reason to go than ‘because we say so,’ or ‘you have to.’ I’m pretty sure that you’d want the say-so of more than a couple of social workers.

And that’s Mark’s point. If someone wants to take away a person’s liberty or move them from their home, there already is a process, up and running, by which that suggestion can be challenged and fought against. It’s the courts.

From there, we could work to enshrine the entire support package in law; the assumption that a person has a right to his or her liberty shouldn’t have to stop at being taken away without due process. What about challenging local authority and other state decisions in the courts every step f the way? Instead of using a generic ‘assessment system’ to identify needs, we could force councils and other bodies, including social services, to adopt the personalization agenda in its entirety – because that agenda is really a matter of extending to people with disabilities what the rest of us take for granted. All this is already covered by common law, and by statutes like the Equality Act 2010 and the Mental Capacity Act 2005. Regardless of these, though, a recent Mencap report found people with learning difficulties face ‘doctors whose practices appear to show no regard to the Equality Act or Mental Capacity Act, and nurses who fail to provide even basic care to people with a learning disability.’ Clearly merely having a law isn’t enough: we need to use the law.

Mark says:

‘What about the 3000+ people already trapped in ATUs? How do we get them out? In a way, we would just have to apply the… statutory presumption that someone lives in their own home. These people were living somewhere, pre ATU, so perhaps the starting point is for the State to demonstrate why they can’t go back there. If that really isn’t an option, then the State has to show why it won’t fund a home package for the person elsewhere. And all this would come under court scrutiny.’

Mark’s suggestion seems audacious on first reading – but why should it feel audacious to suggest that people with disabilities are entitled to their lawful rights?

If you’re interested in finding out more about what we do at Friends Together, get in touch!

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