1 Assessing capacity to consent and to give evidence Dr Theresa Joyce Estia Centre; South London & Maudsley NHS Trust, London, UK
2 This presentation will consider 4 topics Assessing capacity to consent to a sexual relationship The system for protecting people where there is suspicion they are being abused The method of interviewing used by the police when they are gathering evidence about suspected sexual abuse Assessing the capacity of victims to give evidence in court
3 Capacity to consent There are 3 approaches to assessing capacity to consent: - Status who you are determines whether you can consent. In England, the law used to be that people with an IQ below 50 could never consent to a sexual relationship Outcome - Judgement of capacity based on values and view of the person assessing it (if person agrees with assessor s view, they have capacity, if they do not agree, then they probably lack capacity) Functional - Considers decision to be made, at time it needs to be made. This approach allows the person to exercise more control and autonomy over their lives, as there is no presumption of lack of capacity
4 The legal test of capacity : 2 parts the person must suffer from a mental disorder (intellectual disability, dementia, brain injury etc) 2: the person must be unable to do any one of the following: Understand the information relevant to the decisio Remember the information relevant to the decision Weigh up the information - consider the advantages and disadvantages, risks and benefits of saying yes or no Be able to communicate their decision (by whatever means they are able to use to communicate) There is now a legal duty to do everything that is practically possible to enable the person to make the decision for themselves.
5 Capacity to consent to a sexual relationship The Sexual Offences Act 2003 states: 1. A person (A) commits an offence if: (a) he intentionally touches another person (B), (b) the touching is sexual, (c) (B) is unable to refuse because of or for a reason related to a mental disorder, and (d) (A) knows or could reasonably be expected to know that (B) has a mental disorder and because of it or for a reason related to it (B) is likely to be unable to refuse. 2. (B) is unable to refuse if: (a) he lacks the capacity to choose whether to agree to the touching (whether because he lacks sufficient understanding of the nature or reasonably foreseeable consequences of what is being done, or for any other reason), or (b) he is unable to communicate such a decision to (A)
6 What has this meant in practice? Much of the law in the UK is based on case law (as opposed to being codified). Case law develops on the findings of judges. In the UK, this has led to legal argument about what is actually required for a person to be able to demonstrate capacity to consent to a sexual relationship; or alternatively how do we decide that a person lacks capacity to consent and is therefore potentially a victim of sexual assault or sexual abuse. The most recent case (D Borough Council vs AB) concerned whether or not a man with intellectual disabilities had the capacity to consent to a sexual relationship with another man with intellectualdisabilities in the home where he lived.
7 D v AB - what the judge said He considered that, in order to have capacity to consent to a sexual relationship the person needed to know the following: The mechanics of the act (that is, what people actually do when they have sex) That there are health risks involved, particularly the acquisition of sexually transmitted and sexually transmissible infections (HIV, syphilis etc) That sex between a man and a woman may result in the woman becoming pregnant He said that they also needed to be able to exercise their capacity : in other words the mental disorder should not make someone be unable to refuse because they were either panic stricken, or maybe they did not understand what was happening to them
8 Assessing capacity in people with intellectual disabilities Is a difficult and sensitive issue people with intellectual disabilities are often considered to be without sexual needs, and are frequently excluded from education about sexual relationships They may think they are in trouble or have done something wrong If they are the victim of a sexual assault or abuse, they may also be frightened They may also not have been taught the words that they need to describe what has happened to them It is important to ask open questions can you tell me about? rather than closed questions Did X do this to you? (likely to lead to the answer yes or no.)
9 Their understanding of what is involved in sexual intercourse ( the nature of the act ) Can they differentiate between pictures of men and women? Can they correctly name or identify parts of the body (including parts associated with sex)? Can they describe what happens between 2 people when they have sex (in very basic simple terms it is important to note that they may use slang words for this, and not medical terms) They may have only been taught about heterosexual sex, and not about homosexual sex
10 Their understanding of what is involved in sexual intercourse ( the nature of the act ) You will need to explain why you are talking to them about this for example you have told X that Y had sex with you, and I would like to talk to you about that. I know it can be difficult for you to talk to me, and that s ok Can you tell me about what sex education you have had? What can you remember of what you were told in your classes? People may use words such as having sex and not know what it means they may mean kissing People may use words such as rape, and not know what it means (doesn t mean that they have not been abused
11 Assessing capacity It may be helpful to use pictures, for example to find out if they can identify parts of the body: Or a sexual act Or if someone is abusing their power/authority You may want to ask if what is happening is OK or not OK?
13 Or a sexual act - can they explain what is happening here? And is it OK or not?
15 OK or not OK?
16 Their knowledge (at a basic level) of the risks of pregnancy and sexually transmitted diseases
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21 Or if someone is abusing their strength, or authority, or power
23 OK or not OK?
25 A person in authority OK or not OK?
27 Someone trying to force you to have sex OK or not OK?
28 Case example 44 year old man; lived with his parents; family arrived home one day to find him being sexually touched by a neighbour. Police wanted an opinion on whether he could have consented to this (in which case there would need to be proof that he had not consented, rather than he was unable to consent) Assessed his cognitive functioning - IQ was between Interviewed him. Told him I had been asked to see him by the police because of what his parents had seen with the neighbour. (He had already been interviewed by the police at this point) Spent some time talking to him about what his usual daily routine was, his friends, his interests etc. Asked him if it was okay if we talked about boyfriends and girlfriends, and that we would talk about touching each other and about sex
29 Interview He in was interested and wanted to talk He was able to label different parts of male and female bodies. He was able to state that when a man and a woman have sex, the man put his penis up the girl's vagina (he used his own words and pointed to pictures) and that they might have babies. He was not able to describe any other consequences. He said he did not know what happens when two men have sex, stating that he was not sure where it goes. He said that if someone wanted to have sex with him, he would say no, although he was not able to state clearly why he would say no.
30 Interview He was able to differentiate between pictures depicting people consenting to sexual activity, and resisting. He was able to state whether the individuals seemed to be happy with what was happening, and whether they were not. He also said that he would be able to say no. He told me that he didn t do any sex education at school, although he said he did know about it. When asked what consent was, he replied Don t know. No idea what consent is. When asked what having sex means, he replied man gets on top of the woman. He said that he did not talk to his parents about sex. His view of sex appeared to be related to a man and a woman having penetrative sex, and he did not demonstrate understanding of homosexual sex. He did, however, demonstrate understanding of being able to say no if you did not want something to happen.
31 Conclusions He had some understanding of heterosexual sex, and some of the possible consequences (pregnancy, but not sexually transmitted infections). He did not demonstrate knowledge or understanding of homosexual sex. He demonstrated understanding that it is possible to refuse to engage in a sexual act, on the basis of the pictorial materials presented. This does not mean he could translate this knowledge into practical action. He did not have capacity to consent to homosexual sex (he did not understand the nature of the act or its possible consequences). He may also have been in a situation where he would not been able to exercise his ability to say no
36 Protecting people from abuse All staff are required to report to their manager any abuse they see or suspect. The manager has to record it and report it to the local authority It is investigated by a social worker The victim has to be made safe Staff and carers should be made aware of the possible signs of sexual abuse (this includes physical signs, UTI s, challenging behaviour, sexualised behaviour) The person with a intellectual disability may also disclose what is happening to them listening is essential External inspections make sure that standards of reporting and action are effective
37 Interviewing people with intellectual disabilities Difficulties with evidence Research evidence shows some potential difficulties in interviewing people with intellectual disabilities, especially when an offence may have been committed. These are: Acquiescence (people with intellectual disabilities are significantly more likely to say yes to leading questions then people of normal intelligence; in other words if the person interviewing them makes a statement, they are more likely to agree with it even if it is not true. Compliance: related to acquiescence, and more likely to go along with what is happening (that is, not object to what is being said or done) Suggestibility: people with intellectual disabilities are more likely to give into leading questions, and have poorer recall of events They may also have difficulty understanding the legal implications of involvement with the police
38 Good practice in interviewing: (content) The basic principles are: Give some thought to the questions you will need to ask before the interview starts. Keep the language clear and simple. Try to keep to one idea per sentence. Keep the sentences short. Try to use the same word for the same thing. Find out what the person's own words are for specific things. This can often be culturally based. Be supportive. Bull (2010): interviewers should: (process) They need to speak more slowly. They need to allow extra time to enable the person with intellectual disabilities to take in what is being said. They need to allow time for the person with intellectual disabilities to think about how they are going to answer the question. They should not rush the questions. They should avoid interrupting. They need to be patient.
39 Police interviews Policy document called Achieving Best Evidence in Criminal Proceedings: Guidance on interviewing victims and witnesses and using special measures Allows for adjustments to be made in the court process to enable vulnerable witnesses to give evidence (including reducing the formality of the court proceedings, allowing someone to support person to be with them in court, using screens or video links so that the victim does not have to see the alleged perpetrator) Defines the interview structure and process to be followed when interviewing a vulnerable witness. Police, health and social care staff have to be specially trained before they should undertake these interviews.
40 Interview process Telling the truth: Person is asked questions to demonstrate tha they know the difference between truth and lies Rapport: where the interviewer gets to know the person, talks to them about things that they are comfortable with (which is why information about the person prior to the interview is so helpful). It also gives them a chance to understand how the witness communicates. Importantly, this is also a time when the interviewer can make clear that saying that you don't know, don't remember, or don't understand is OK. People with intellectual disabilities may feel under pressure to produce an answer. Free narrative: where the person is asked to say in their own words what happened to them. They are not asked any detailed questions, but instead encouraged to talk. The interviewer may say things like tell me more about that.
41 Interview process Questioning: in this stage the interviewer uses open questions to get more detail about what happened. They can only ask questions based on the information they have been given in the free narrative stage - to introduce other information could seriously damage the accuracy of the information gained. This is the stage when the psychological vulnerabilities of the person with an intellectual disability can have most impact on the quality of the information they give. If asked leading questions, they may agree to things that are not true; if given information which was not in their original account, it may distort their memory of the events; if they feel that the person interviewing them is disapproving of their answers, they may try and say something (which may or may not be true) that will please them. It is also at this stage that the witness may be asked about dates and times, asked more detail about what the person looked like, or asked more detail about where any alleged incident occurred. However, it is clear that with careful (non-leading) questioning, it is possible for people to give detail about the circumstances of any incident.
42 Interview process For example: the witness may say it was a man. An inexperienced interviewer might ask what colour hair did he have? A person without intellectual disabilities might reply saying Oh he didn t have any hair, he was bald. A person with intellectual disabilities might think that he should answer the question as it stands, and reply with a hair colour. A more experienced interviewer might ask can you tell me anything else about what he looked like? or ask a question about his head, or and then go to a question with options e.g. hair/no hair. When asking time of day, it may be necessary to try and help the person remember a concrete time marker e.g. was it before or after lunch, was it a day you go to work/college/centre or a day you are at home? Closure: in this stage, the interviewer summarises what has been said, making it clear that if they have got anything wrong that it is okay and right to correct it, asks if there are any questions and thanks the person. The aim is also to try make them feel as comfortable as possible, as they are likely to have been discussing upsetting or distressing events.
43 Competence to give evidence Supporting victims and witnesses with a intellectual disability published by the Prosecution service (CPS) outlines what the witness needs to be able to do in order to give evidence in court The law states that all people are competent to give evidence. Competent in this context means lawfully able to give evidence. This is the starting point from which all witnesses should be assessed when prosecutors are considering their evidence. A witness is not competent to give evidence if they are not able to understand questions put to them as a witness and give answers to those questions which can be understood.
44 Competence to give evidence The law states that a person must be assumed to have mental capacity unless it is established that he or she lacks mental capacity Understand, retain, weigh up and communicate decision People should be supported as much as possible to make their own decisions before anyone concludes that they cannot make their own decisions. This support may be through using different ways of communicating such as pictures or signs and providing information in different formats, such as tape or easy-to-read. In some cases an independent advocate familiar with supporting people with intellectual disabilities may be able to help.
45 Competence to give evidence Credible will people believe what you say? Reliable will you give good evidence in court and give the same account all the way through? Does the person need suppport to help them give evidence? Case example: 19 year old woman who had alleged rape. IQ assessed as 56. Was shy and nervous, but able to give an account of what had happened to her. Also important to know that she understood the importance of telling the truth. In England, people are asked to give the oath, or affirm, that they will tell the truth, the whole truth, and nothing but the truth. She explained this by saying that when she went to court she had to say what happened, say everything that happened, don t say anything that didn t happen. On the basis of her IQ score alone, we might have assumed that she would not understand the concept of truth, but she was actually able to give a good explanation. She would need support (an appointed intermediary) in court, and other special measures.
46 A wordofwarning! Research on outcome of investigations into allegations of abuse (Joyce 2003) Twenty-six people were referred for investigation into allegations of sexual or physical abuse. The referrals were for assistance with an investigative interview (n = 12), capacity to give consent to a sexual relationship (n = 8) and competence to give evidence in court (n = 6). The referrals were all in relation to adults, covering a range of ages and degrees of intellectual disability. It was difficult to investigate and decide action. Some staff were removed from their place of work (but most were not dismissed), and then left their jobs. Families kept in contact (the suspected perpetrator was a family member) and safeguarding monitoring was put in place, some service users were moved, and some were provided with more education. Murphy (2004) reported that people with ID Were significantly less knowledgeable than a control group of teenagers about almost all aspects of sex and appeared significantly more vulnerable to abuse, many finding it difficult to distinguish abusive from consenting relationships.
47 To conclude People with intellectual disabilities are less likely to have knowledge about sexual relationships, may not know the difference between an abusive and a consenting relationship and are very vulnerable because of this. There is a clear system of inspection for residential services. All local authorities have a responsibility to ensure that they have clear structures for investigating abuse and safeguarding adults who may have been, or are, victims of it The law has been changed and developed to provide more protection when allegations are made. There is clear guidance about how to interview vulnerable witnesses, and a number of special measures are available to assist vulnerable people in court. Professional staff have a key role in ensuring research evidence and good practice guidance are used in implementing procedures to safeguard vulnerable adults from abuse
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