Dale, C. (2014), "Editorial", Journal of Intellectual Disabilities and Offending Behaviour, Vol. 5 No. 3. https://doi.org/10.1108/JIDOB-12-2014-0019Download as .RIS
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Article Type: Editorial From: Journal of Intellectual Disabilities and Offending Behaviour, Volume 5, Issue 3
The impact of the new rulings on the deprivation of liberty
The rulings in the cases of P v Cheshire West and Chester Council and P&Q v Surrey County Council has thrown out previous judgements that had defined deprivation of liberty (DOLs) more restrictively (Browne Jacobson LLP, 2015). Both cases involved appeals against separate Court of Appeal decisions that a learning disabled man, P, and two learning disabled sisters, known as MIG and MEG, had not been deprived of their liberty. A feature in respect of all three individuals was that it was not suggested that the arrangements were more restrictive than any of them required. Nor did any of them appear dissatisfied with the arrangements which were all held to be benevolent and in the person's best interests (Browne Jacobson LLP, 2015).
All people who lack the capacity to make decisions about their care and residence and, under the responsibility of the state, are subject to continuous supervision and control and lack the option to leave their care setting are deprived of their liberty, ruled the court.
The person's compliance or lack of objection to their placement, the purpose of it or the extent to which it enables them to live a relatively normal life for someone with their level of disability were all irrelevant to whether they were deprived of their liberty, ruled the court (Browne Jacobson LLP, 2015).
This means that many people are likely to have been deprived of their liberty unlawfully and without safeguards in settings including care homes and supported living placements (Adass, 2014). This suggests that proper application of the judgement would see a significant increase in DOLs case numbers regarding care home placements, and also applications to the Court of Protection to authorise deprivations of liberty in supported living (MicNicoll, 2014).
This ruling changes substantially the approach that should be taken to deprivation of liberty. It's very clear; there's not a lot of room for manoeuvre. Many of the factors that were thought to be relevant have been completely taken out; including whether the person was objecting to their confinement and how frequently they went out of their care setting, neither of which were relevant according to the new ruling (Adass, 2014).
The Association of Directors of Adult Social Services (Adass) has predicted that the Cheshire West ruling will see Dols assessments rise from just under 10,000 last year to a predicted 94,000 by the end of this financial year at an extra cost of at least £88 m to councils (MicNicoll, 2014; Samuel, 2014).
Councils are shifting social workers trained as best interest assessors (BIAs) into specialist teams set up to clear backlogs of Deprivation of Liberty Safeguards (Dols) referrals that have piled up following a landmark court ruling (MicNicoll, 2014).
In this issue
This edition of the Journal sees a diverse range of papers encompassing Foetal Alcohol Syndrome; characteristics of referrals and admissions to a medium secure Autism unit; and substance use as a predictor of contact with the Criminal Justice System (CJS) for people with intellectual disabilities
In his paper “Foetal alcohol spectrum disorder – its relevance to Forensic Adolescent Services” Ernest Gralton describes a developing understanding of the spectrum of disability in individuals who have had alcohol exposure in utero, namely Foetal Alcohol Spectrum Disorder (FASD). The disabilities associated with FASD are likely to predispose young people to contact with the CJS, however, the recognition of this population in the CJS and secure services is low, particularly in the UK.
The paper goes on to suggest that carers and other professionals working with adolescent offenders need to have a high degree of suspicion for FASD in young people, particularly those who have come from the care system, and those with histories of domestic violence and maternal mental disorder. They are likely to be at higher risk of substance misuse.
Gralton states that this group requires complex multidisciplinary assessment to capture the extent of their deficits, particularly comprehensive neuropsychological assessment encompassing measures of executive function and social ability, as well as educational, sensory and motor assessments.
Gralton believes that improved education of professionals working at all levels in the CJS about FASD should encourage recognition and help improve outcome. Long term and significant levels of support are likely to be necessary, well into adulthood.
Therese O’Donoughue, John Shine and Olufunto Orimalade, describe the “Characteristics of referrals and admissions to a medium secure ASD unit”. The specialist medium secure service in their study is an inpatient unit within the Men's Service at St Andrew's, Northampton. The unit opened in December 2010 and has 15 beds for adult males. Overall, the results of the research indicate that the criteria for admission to a specialist ASD service needs refining by way of thorough and comprehensive assessments of the individual. They felt that is was important to note that there is a dearth of risk assessment tools which are specific for adults with ASD.
The recommendations made have ramifications for care, treatment approaches and prognosis. In the total sample there was a high prevalence of concurrent disorders. They observe that the dominance of concurrent features or diagnosis can sway the best treatment direction to optimise rehabilitation even if, initially, an individual may have been referred for assessment due to the presence of an ASD diagnosis. If, however, their presenting risk is more associated with a concurrent diagnosis, e.g. schizophrenia, dementia or moderate learning disability then individuals are more suitable for specialist services which understand and support their needs.
In their paper “Does substance use predict contact with the Criminal Justice System for people with intellectual disabilities” Eddie Chaplin, Ilias Partsenidis, Blessing Samuriwo, Lisa Underwood and Jane McCarthy state that substance use is estimated as an issue for up to half of offenders in UK forensic intellectual disabilities (ID) services. Their study explores the relationship between alcohol and illicit substance use with involvement in the CJS for adults with ID.
This study used a retrospective case design to identify a cohort made up of patients who were active to south London and Maudsley NHS Trust Mental Health in Learning Disability services between December 2011 and July 2012, and who were aged 18 years and older.
From the sample, 86 (20.9 per cent) had alcohol use mentioned in their clinical records. Of these 38 (9.2 per cent) had a history of continuous/heavy use. Male gender was predictive of both continuous/heavy and recreational/occasional use, as was mild ID 12.2 per cent, n=50, compared to moderate ID 5.3 per cent, n=22 and severe ID 2.9 per cent, n=12. In terms of illegal substances 36 (8.8 per cent) were identified as using cannabis currently or in the past, with 19 (4.6 per cent) current continuous/heavy users.
The authors conclude that substance use in individuals with ID is both poorly understood and an issue of concern as is its relationship to offending and challenging behaviour. In terms of clinical implications they found that substance misuse was a significant problem for some patients and was associated with an increased involvement with the CJS. This has implications for how services are configured in order to identify patients earlier for treatment.
ADASS (2014), “Number of DoLS referrals rise tenfold since Supreme Court ruling”, The Association of Directors of Adult Social Services, available at: www.adass.org.uk/number-of-dols-referrals-rise-tenfold-since-supreme-court-ruling-jun-14/
Browne Jacobson LLP (2015), “Implications of Cheshire West - Mental Capacity Act and Deprivation of Liberty Safeguards webinar June 2014”, available at: www.bjhealthlawyers.com/resource/implications-of-cheshire-west-mental-capacity-act-and-deprivation-of-liberty-safeguards-webinar-june-2014/
MicNicoll, A. (2014), “Social workers pulled from casework to clear backlog in deprivation of liberty referrals”, available at: www.communitycare.co.uk/2014/08/13/social-workers-pulled-casework-clear-backlog-deprivation-liberty-referrals/
Samuel, M. (2014), “Supreme Court ruling heralds sharp rise in Deprivation of Liberty Safeguards cases”, available at: www.communitycare.co.uk/2014/03/19/supreme-court-ruling-heralds-sharp-rise-deprivation-liberty-safeguards-cases/