06. Your Right to Protection and Liberty

This section is divided into two parts.

[a] What the law says

[b] Other protection under the law

[a] What the law says

The law gives everyone the right to liberty. This Article 3 of the Human Rights Act which gives everyone the right to protection and security. This is not an absolute right as there are times when you can be legally deprived of your liberty, e.g. by being sent to jail.
The law also tries to protect vulnerable people by making it an offence to neglect or exploit them sexually.
There are other laws which help you protect yourself, for example by giving you the right to look at your official records and to ask for information.
If you have a learning disability and get into trouble with the law, there are ways in which you should be safeguarded.

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A right to liberty and security

What law is this? - The Human Rights Act 1998 is law that the government, councils and other public bodies have to follow. It does not have to be followed by individuals or private companies.
Article 3 of the Act says that a public body cannot deprive you of your liberty by detaining you without a good reason, even for a short period.
However, being 'deprived' of your freedom under the law can be very different from having your right of action restricted. Restricting someone's liberty can be legal where people lack the capacity to agree to such a restriction. A problem here is that there is no clear dividing line between what could be looked at as restrictive, which could be ok as far as the law is concerned, and what is deprivation, which is against the law.

Example 1. A legal case which looked at this involved a brother and a sister with disabilities who lived at home. At night they were locked in their bedrooms for the duration of bedtime. This was the only way they would settle, and if they did not settle they would get out of their rooms and risk being a danger to themselves and other people. Alternatives had been tried, for example having waking night carers, but nothing else had worked.

A court ruled that this was not a deprivation of their liberty because the arrangement was what worked best for them, and did not stop them being free to get around outside sleeping hours.

If you live in a care home and are not allowed freedom to get out and about, the home has to have this authorised by the council through the Deprivation of Liberty Safeguarding System. This has to be done quickly and is kept under review.
For more information have a look at the guidance on Deprivation of Liberty Safeguards from the Care Quality Commission (CQC).

► The Mental Capacity Act 2005 Deprivation of Liberty Safeguards

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How does the law protect my liberty?

The law says that even if you cannot make your own decisions, any decisions taken for you, for example by your Deputy or under the rules about your 'best interests', have to offer you the least restrictive option available in the circumstances.

This means that anyone making decisions on your behalf has to think about how you can be given as much freedom and liberty as possible.

If you live in a care home and have to deprived of your liberty, this must be authorised properly through the Deprivation of Liberty Safeguards.

The Court of Protection has a general oversight of the welfare of people who lack capacity, and this covers looking after their liberty as well.

There are situations when Independent Mental Capacity Advocates (IMCAs) will be appointed to represent someone's interests if there is no-one else to help them. This happens if people are likely to be moved into a care home or hospital.

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What can I do if I am deprived of my liberty?

If you are living in a care home or hospital and are being deprived of your liberty, you can contact the body which has to authorize your situation. This will be social services for care homes, or the Primary Care Trust for hospitals.

You can make an application to the Court of Protection, which can decide whether you have capacity or not in relation to particular decisions, and can make orders for the welfare of people who lack capacity.

You should seek legal advice from a solicitor, a law centre or an advocacy service about whether your deprivation of liberty is lawful or not. If it is unlawful, you can consider legal action against those responsible.

Example 2. Steven has autism and lives with his father. Their care arrangements broke down over a holiday period and Steven was offered a few days' respite care.

The council decided that they were not prepared to let him go back home after an incident of challenging behavior. After some months they applied for authorisation to deprive him of his liberty under the Deprivation of Liberty Safeguards process, which was approved. Steven's father was not consulted for much of the time he was in care.

His father went to the Court of Protection, who said that the council had acted unlawfully in several ways. The Court also said that depriving someone of their liberty was only permissible if the standard of the care and protection they would get in their new accommodation was an improvement on their home life.

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[b] Other protection under the law

Offences against vulnerable people

All the crimes that can be prosecuted are equally applicable to people with learning disabilities, e.g. assault, rape, theft etc.

There are also various criminal offences specifically against vulnerable people.

1) Ill-Treatment and Willful Neglect – The Mental Capacity Act says it is an offence for anyone caring for someone who lacks capacity to ill-treat them or willfully neglect them. This applies to family carers and paid carers. See chapter 14 of the Mental Capacity Code of Practice.

► Download Mental Capacity Act Code of Practice [PDF - Size: 1786 KB]

2) Sexual Offences – The Sexual Offences Act 2003 says that sexual activity with someone whose mental disability means they cannot refuse to be involved, is a crime. Sexual activity can also mean forcing someone to watch something or be around when sexual activity is happening. There are separate offences concerning care workers having sexual activity with disabled people.

3) Fraud - The Fraud Act 2006 says it is an offence for Deputies and Attorneys abusing their trust by not using your money in the way they should.

4) Disability Hate Crime. What this means is that if a criminal offence is perceived to be motivated by hostility or prejudice based on a person's disability, this makes the offence more serious. More information is available on the Crown Prosecution Service's website.

► The Crown Prosecution Service

You have a right to take complaints about all these offences to the police and to expect help from them.

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How does the law protect me from offenders?

1) Criminal Record checks. Anyone working with vulnerable people (paid worker or volunteer) has to have their criminal record checked beforehand by the Criminal Records Bureau. This check should also show if there have been complaints about the way the person has treated vulnerable people in the past.

2) The Care Quality Commission (CQC) has standards that care homes and services have to keep to and can send their inspectors in to see if these standards are being met. The CQC has the power to close unsatisfactory homes or services.

3) You can complain to the police or social services and ask them to take legal action to help you.

4) If you are in danger of abuse, social services should act to safeguard you. The current informal systems that social services use will become a national compulsory system soon.

5) If you are using paid staff, whether in a care home or in your own home, their employer should have proper health and safety systems in place to make sure you are safe. You should ask to see the employer's rules about health and safety, and ask what training they give staff about how to avoid abuse and how to stand up for service users' rights.

6) You can take legal action for damages or compensation against someone who causes you harm. If you are the victim of a crime you can apply to the court for Criminal Injuries Compensation.

► Criminal Injuries Compensation

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If I come into contact with the law?

If you get into trouble with the police

If you are arrested you have the right to tell the Police you have a learning disability. The Police have to make sure there is another adult with you before they start questioning you. This person is called an 'Appropriate Adult' and should be someone who knows you or has experience in helping people with learning disability.
You have a right to have a solicitor with you when you are being questioned or charged by the Police. This will be free of charge.
If you are charged or taken to court for an offence that resulted from your disability, or if your disability means that you were unable to stop yourself, the court should ask to know more about you so they can decide whether you should be offered treatment or support rather than punishment. This is called 'Diversion of Disordered Offenders'.

If you are a court witness

There are specific rules which help vulnerable witnesses give their evidence as well as possible. Sometimes this will mean they can give evidence via a video link, or the lawyers and judges will take off their legal uniform to make you more at ease. This is organized by Witness Care Units at court. More information go to Crown Prosecution Service's website or Victim Support.

► The Crown Prosecution Service

► Victim Support

Call the Victim Support Supportline on 0845 3030900.

Jury service

You will be excused from jury service if you are not be capable of understanding what happens at court or of being able to form an opinion of a defendant's innocence or guilt.

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Finding things out

You can safeguard yourself by finding out as much as possible about the information other people have about you, and by checking what public bodies are doing.

Data protection

You have a right to know what information is held about you. You can ask for this information to be put right if you know it is wrong. You can ask about,

You can get a copy of this. There is a maximum fee you can be charged (£10) and set time limits for this to be done.
Some information (e.g. details about your medical or physical condition) is sensitive personal data and has to be handled sensitively.

Personal records

You have a right to see what records social services, the Health Service and a Housing Authority have about you. You can be charged a fee for this (maximum £40), and you may have to explain why you want the information. If you lack the capacity to ask, a representative acting in your best interests can ask for you.

Freedom of information

You can ask for data held by the state. This covers government departments, councils, health trusts, schools and the police.

Credit checks

Credit agencies hold information about your financial standing. You can ask them for a copy of the data they hold about you and you can tell them to put it right if it is wrong. You will have to pay a £2 fee.

For more information and help with any of these you can contact the Information Commissioner. They have a helpline on 0303 123 1113.

► Information Commissioner

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Right to vote

You have the same right to vote as any other citizen. The only person who can question your right is the Presiding Officer at the Polling Station if they believe you are incapable of casting a vote. If going to a Polling Station is difficult for you, you can vote by post or appoint someone to vote for you.
For more details, contact your local council's Election Officer.

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Right to legal help

Legal rights only mean anything if there is a way of making sure that you can stand up for your rights.
Getting good legal help and advice is essential.

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Legal aid

You are entitled to subsidised or free legal help from the legal aid scheme if you qualify financially (it is based on your income) and if the legal action you are taking or defending qualifies. For example, you will not get legal aid for help with going to a Social Security Tribunal or an Employment Tribunal but you can get legal aid for advice to help you in the Tribunal.

You can get general legal advice free of charge and confidentially on the phone through the Community Legal Advice (CLA) Helpline on 0845 3454345.

You can search for legal advice in your area on the CLA's Legal Aid Adviser Finder.

► Find a legal advisor

There are also organisations such as the Citizens Advice and Law Centres who can help free of charge. You can find offices near to you through the Legal services site.

► Legal Services Commission

► Citizens Advice Bureau

You may find it useful to contact specialist help services.

► Mencap's Learning Disability Helpline

The Mencap helpline can be called on 0808 808 111 and emailed at help@mencap.org.uk.

► Disability Law Service

The Disability Law Service Advice Line is 0207 791 9800 and email advice@dls.org.uk.

When asking a lawyer to help you, always check about legal aid first.

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