Being part of Scotlands story under the UN Disability Convention - Seminar 2.

Being part of Scotland’s story under the UN Disability

Convention

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Seminar 2

Monday 16 January 201212 – 1pm

Access to justice

Welcome and overview

• Welcome to the second seminar!

• Introduce Lindsey and Laura

• Please introduce yourself in the chat room

• Tweeting

• Explain palantyping

• Everything will be recorded

• Please ask questions

• Discussion

The Disability Convention

• International human rights agreement signed by UK Government

• Recognising disabled people continue to face barriers to equal participation and violations of their human rights

• Commitment to ensure disabled people enjoy the same human rights as everyone else and without discrimination

Monitoring and involvement

• Commissions are the “independent mechanisms” to promote, protect and monitor the implementation of the Convention

• Incorporate into Commissions’ work

• “Nothing about us, without us” – disabled people are central to the implementation of the Convention

• Use to achieve social change

Why access to justice

What disabled people have told us:• Afraid about reporting incidents of harassment or

bullying to the police

• Limited confidence in the criminal justice system’s (CJS) ability to protect them

• Police can be less likely to accept a crime has been committed if reported by someone with a learning disability

• Learning disabled people are concerned about using and accessing the court system.

• Can find it hard to navigate our legal systems

• Fear that will not be provided with the opportunity to speak for themselves.

• Difficult to access specialist legal advice and representation.

Responsibilities of Govt (Art. 4)

• Not to act in a way that is “inconsistent”

• Introduce appropriate laws and other measures

• Take all appropriate steps to change or abolish existing discriminatory laws, policies and practices

• Take into account in their policies

• Ensure public authorities comply

Making your own decisions / right to legal capacity (Art. 12)

•Cannot be denied the right to make own decisions.

•If help is needed to make decisions Govt should provide it.

•If someone else does speak on your behalf, safeguards must be put in place to make sure rights and interests are protected.

Access and participation in justice (Art. 13)

• Same rights to take legal action, act as witnesses and take part in court action as anyone else

• Must provide support if needed (e.g. Specialist support services, person to act on someone’s behalf or assist, legal aid)

• Appropriate training for staff

Liberty and security (Art. 14)

• Never be deprived of freedom/ liberty because someone is disabled

• If are detained (criminal sentence or detention under mental health legislation) certain conditions must be met, reasonable adjustments made and safeguards to protect human rights

Protection from degrading treatment and exploitation, violence and abuse (Art. 15 & 16)

• No treatment that causes severe mental or physical harm or that is grossly humiliating and undignified

• Strong laws to make sure cases are investigated and prosecuted

• Ensure disabled people can recognise and report violence and abuse

• Public bodies have duty to protect and prevent

• Support recovery of victims to regain control

Lindsey Reynolds,

Solicitor and Associate at

Mental Health Legal Representation Project,

Legal Services Agency Glasgow

16th January 2012

Mental Health Legal Representation Project

• Strathclyde, and Edinburgh and Lothians

• People with mental health problems have legal difficulties which are sometimes compounded by their illness and, as a result, they often do not get the legal help that they need. Some of the areas of law we deal with include:

– Detention and Appeals under the Mental Health Act.– Adults with incapacity:  medical treatment, Intervention

Orders, Financial and Welfare Guardians. – Organising finances:  appointees, Powers of Attorney and

Financial Guardians. – Community Care - getting the services you need. – Civil Law including Child and Family, Children's Hearings,

Reparation, Debt Claims etc

Aims

• Discuss some of the barriers facing disabled people in accessing justice,

• Signpost some of the research carried out in this area,

• Very brief overview of legal aid system and signposting,

• Focus on some areas of law, considering some examples of good practice and identifying some potential gaps.

• Slides available for more detail

Physical and practical barriers

• Physical barriers (disabled access to premises)• Practical barriers (information provision, travel problems)• Solicitor as a service provider:

– Reasonable adjustments in relation to provision, criterion or practice or physical features which put disabled people at a substantial disadvantage compared with those who are not disabled

– Provision of auxiliary aids where not providing them would place a disabled person at a substantial disadvantage

• For more information: www.equalityhumanrights.com

Attitudinal barriers

• Justice Disability Steering Group (multi agency)

• “Keen to develop ways in which disabled people can be involved in helping to improve access to services across the justice system in Scotland”

• Access to Justice report (with Capability Scotland) 2009 – “Justice sector organisations should provide mental

health awareness training to staff. Testimonials within a supported training environment from staff who have had personal experience of mental ill health can be very powerful in terms of challenging attitudinal barriers.”

Attitudinal barriers

• See paper: A fair say? Helping people with learning disabilities to find access to justice (Kay Goodall and Gillian McIntyre, University of Stirling and Equal Say Advocacy 2011)

• Based on sample of 26 interviews. • Interviewees mentioned barriers such as:

– Assumptions being made that people with learning disabilities lack capacity and therefore cannot instruct a solicitor.

– Lack of knowledge and specific training about the issues faced by people with learning disabilities.

Financial barriers

• Legal Aid overview:– Advice and Assistance– Civil Legal Aid– Advice By Way Of Representation – Children’s Legal Aid

• Means test, merits test, often both

• More information: www.slab.org.uk

Financial barriers cont.

• Legal aid reform: Scottish Government Strategic Spending Review- overall settlement represents a cut of 7.17% to legal aid and a 9.3% cut to SLAB’s administration costs

• See White Paper: A sustainable future for legal aid• The Legal Aid and Scottish Civil Justice Council

(Scotland) Bill, to be introduced in May 2012• Concerns about how reduction in travel may impact

on those requiring a home or hospital visit• See Scottish Government Equality Statement

www.scotland.gov.uk/Publications/2011/09/26110945/14

Criminal Justice System reporting a crime

• Presumption of capacity.• Appropriate adult scheme:• http://www.scotland.gov.uk/Topics/Justice/law/

victims-witnesses/Appropriate-Adult

• “The presence of the appropriate adult is about trying to ensure equality for the person being interviewed. It is not about advocacy or speaking on behalf of a person with a mental disorder, rather it is about an independent third party checking that effective communication is taking place and that the person being interviewed is not disadvantaged in any way due to their mental disorder.”

witness and victim support

• www.victimsupportsco.org.uk

• Free and confidential emotional and practical assistance and information about the Criminal Justice System.

• Witness Service provides practical and emotional support at Court.

Vulnerable Witnesses (Scotland) Act 2004

• An adult giving evidence at a criminal trial or civil hearing can be deemed a vulnerable witness where the quality of evidence will be diminished by:

– mental disorder, or

– fear or distress in connection with giving evidence.

– A range of circumstances including physical disability or mental impairment can be taken into account.

• Special measures include: evidence by a Commissioner, live TV link, a screen, a supporter, giving a prior statement.

Supported and substitute decision making

• Article 12 of the Convention provides that persons with disabilities have the right to recognition as persons before the law and enjoy legal capacity on an equal basis with others.

• Distinction between supported and substitute decision making.

• States required to take appropriate measures to provide support required to exercise legal capacity.

• Safeguards put in place relating to exercise of legal capacity must respect the will and preferences of the person, must be free of conflict of interest and undue influence, are proportional, tailored to the individual, apply for the shortest possible time and are kept under regular review.

Complications: capacity and time bar

• Presumption of capacity to instruct.

• Curator ad Litem can be appointed by the Court.

• Guardian or Intervener could be appointed to progress a case (Adults with Incapacity (Scotland) Act 2000)

• Time bar (3 years, 5 years, or 6 months?)

• Can sometimes disregard periods of legal disability for reason of “unsoundness of mind” (Prescription and Limitation (Scotland) Act 1973)

Discrimination and other claims: financial barriers

• Remedy is often a declarator of breach of rights.

• Quantum can often be comparatively low (small claims limit £3000).

• Advice and Assistance and Civil Legal Aid – means tested

• Civil Merits tested- assessing prospects of success and reasonableness of granting legal aid (cost effective?)

Mental Health (Care and Treatment) (Scotland) Act 2003

• Justice Disability Steering Group report- Mental Health Tribunal demonstrates a good level of understanding of disabled people’s needs

• S.1 require those discharging a function to have regard to the Patient’s views, present and past wishes as well as the importance of the patient participating as fully as possible and the importance of providing information to support participation.

• S. 259 right to independent advocacy for every person with a mental disorder.

• McManus Review Group appointed by Scottish Government- named person by default under consideration

• Non means-tested ABWOR available to patient and named person

• Meaningful representation: Byrne v MHTS (2006)

• Curator ad Litem appointed to those lacking capacity

• A Curator ad Litem has no statutory right to appeal to the Sheriff Principal- Brian Black, curator ad litem v MHTS and Scottish Ministers [2011] CSIH 83

Adults with Incapacity (Scotland) Act 2000

• E.g. Welfare and/ or Financial Guardianship and Intervention Orders

• S.1 Account to be taken of present and past wishes of Adult so far as they can be ascertained.

• S. 3 (5A) Sheriff to take account of Adult’s wishes so far as they are expressed by independent advocacy worker.

• The application will ordinarily be intimated upon the Adult unless there is evidence that to do so would pose a serious risk to his/ her health (S. 11)

• The Adult is entitled to attend Court and could instruct a solicitor.

• S. 3 (4) Sheriff to consider whether necessary to appoint a Safeguarder.

• Article 12 Convention: interpreted to mean that Guardianship orders must apply for the shortest possible time and are kept under regular review

• Rule 3.16.8 intimation of renewal of Guardianship- to be amended

• Civil Legal Aid is non-means tested for AWI applications where there is a welfare component

• Advice and Assistance eligibility is assessed on the Adult’s resources

Criminal Injuries Compensation Scheme 2008

• Advice and Assistance available for advice but not representation, but subject to clawback.

• Paragraph 18 requires that the claim must be made within two years of the incident. Time limit can be waived where:– Practicable for application to be considered, AND– In the particular circumstances of the case, it would not have been

reasonable to expect the applicant to have made an application within the two-year period.

• Paragraph 13 states that a payment may be reduced or withheld where it is considered that the applicant has:– Failed or delayed in reporting the circumstances to the Police, or– Failed to cooperate with the Police or other authority in bringing

the asailant to justice.

Employment Tribunal

• ABWOR may be available– A factor: the applicant may be unable to understand the

proceedings or to state their own case because of their age, inadequate knowledge of English, mental illness, other mental or physical disability, or otherwise www.slab.org.uk

• As of 1st April 2011, money awarded by an Employment Tribunal or Employment Appeal Tribunal or any related settlement, is no longer exempt from clawback under ABWOR.

• Time bar: usually 3 months, less a day

Children’s Hearings

• Children’s Legal Aid available for relevant persons to instruct a solicitor in a referral from a Children’s Hearing to the Sheriff or for an appeal against the decision of the Hearing

• At present no ABWOR available for relevant persons to receive representation at Children’s Hearings

• Legal representatives may be appointed by the Hearing at a business meeting

• Part 19 Children’s Hearings (Scotland) Act 2011 makes changes to legal aid provison in this field but is not yet in force

• EM v SLAB [2011] CSOH 134 availability of funding for reports before Children’s Hearing

Contacts

• Law Society for Scotland can put you in contact with a solicitor in your area- 0131 226 7411

• Scottish Legal Aid Board: 0131 226 7061

• Scottish Independent Advocacy Alliance has contact details for Advocacy services in your area- 0131 260 5380

• There may also be a Law Centre in your area.

Thanks

With thanks to the Equality and Human Rights Commission and Scottish Human Rights

Commission

Mental Health Legal Representation advice line- Tuesdays 11- 1pm

0141 353 3354 www.lsa.org.uk

Questions &

discussion

• Thank you to all

• To provide feedback email ...

• Next seminar is Monday 16 January

• If you missed anything, you can watch or listen again by going to: http://www.scottishhumanrights.com/ourwork/crpd/seminar