Assessing capacity to consent and to give evidence

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Assessing capacity to consent and to give evidence
I JORNADAS UNIDAD DE ATENCIÓN A VÍCTIMAS
CON DISCAPACIDAD INTELECTUAL
Assessing capacity to consent
and to give evidence
Dr Theresa Joyce
Estia Centre; South London & Maudsley
NHS Trust, London, UK
I JORNADAS UNIDAD DE ATENCIÓN A VÍCTIMAS
CON DISCAPACIDAD INTELECTUAL
This presentation will consider 4 topics
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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
I JORNADAS UNIDAD DE ATENCIÓN A VÍCTIMAS
CON DISCAPACIDAD INTELECTUAL
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
I JORNADAS UNIDAD DE ATENCIÓN A VÍCTIMAS
CON DISCAPACIDAD INTELECTUAL
The legal test of capacity : 2 parts
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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:
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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.
I JORNADAS UNIDAD DE ATENCIÓN A VÍCTIMAS
CON DISCAPACIDAD INTELECTUAL
Capacity to consent to a sexual relationship
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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)
I JORNADAS UNIDAD DE ATENCIÓN A VÍCTIMAS
CON DISCAPACIDAD INTELECTUAL
What has this meant in practice?
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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.
I JORNADAS UNIDAD DE ATENCIÓN A VÍCTIMAS
CON DISCAPACIDAD INTELECTUAL
D v AB - what the judge said
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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
I JORNADAS UNIDAD DE ATENCIÓN A VÍCTIMAS
CON DISCAPACIDAD INTELECTUAL
Assessing capacity in people with intellectual
disabilities
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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”.)
I JORNADAS UNIDAD DE ATENCIÓN A VÍCTIMAS
CON DISCAPACIDAD INTELECTUAL
Their understanding of what is involved in sexual intercourse
(“the nature of the act”)
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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
I JORNADAS UNIDAD DE ATENCIÓN A VÍCTIMAS
CON DISCAPACIDAD INTELECTUAL
Their understanding of what is involved in sexual intercourse
(“the nature of the act”)
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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”
I JORNADAS UNIDAD DE ATENCIÓN A VÍCTIMAS
CON DISCAPACIDAD INTELECTUAL
Assessing capacity
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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?
I JORNADAS UNIDAD DE ATENCIÓN A VÍCTIMAS
CON DISCAPACIDAD INTELECTUAL
I JORNADAS UNIDAD DE ATENCIÓN A VÍCTIMAS
CON DISCAPACIDAD INTELECTUAL
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Or a sexual act - can they explain what is
happening here?
And is it OK or not?
I JORNADAS UNIDAD DE ATENCIÓN A VÍCTIMAS
CON DISCAPACIDAD INTELECTUAL
I JORNADAS UNIDAD DE ATENCIÓN A VÍCTIMAS
CON DISCAPACIDAD INTELECTUAL
OK or not OK?
I JORNADAS UNIDAD DE ATENCIÓN A VÍCTIMAS
CON DISCAPACIDAD INTELECTUAL
Their knowledge (at a basic level) of the risks of
pregnancy and sexually transmitted diseases
I JORNADAS UNIDAD DE ATENCIÓN A VÍCTIMAS
CON DISCAPACIDAD INTELECTUAL
Madrid, 22 y 23 Febrero 2011
I JORNADAS UNIDAD DE ATENCIÓN A VÍCTIMAS
CON DISCAPACIDAD INTELECTUAL
Madrid, 22 y 23 Febrero 2011
I JORNADAS UNIDAD DE ATENCIÓN A VÍCTIMAS
CON DISCAPACIDAD INTELECTUAL
Madrid, 22 y 23 Febrero 2011
I JORNADAS UNIDAD DE ATENCIÓN A VÍCTIMAS
CON DISCAPACIDAD INTELECTUAL
Madrid, 22 y 23 Febrero 2011
I JORNADAS UNIDAD DE ATENCIÓN A VÍCTIMAS
CON DISCAPACIDAD INTELECTUAL
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Or if someone is abusing their strength, or
authority, or power
I JORNADAS UNIDAD DE ATENCIÓN A VÍCTIMAS
CON DISCAPACIDAD INTELECTUAL
I JORNADAS UNIDAD DE ATENCIÓN A VÍCTIMAS
CON DISCAPACIDAD INTELECTUAL
OK or not OK?
I JORNADAS UNIDAD DE ATENCIÓN A VÍCTIMAS
CON DISCAPACIDAD INTELECTUAL
I JORNADAS UNIDAD DE ATENCIÓN A VÍCTIMAS
CON DISCAPACIDAD INTELECTUAL
A person in authority – OK or not OK?
I JORNADAS UNIDAD DE ATENCIÓN A VÍCTIMAS
CON DISCAPACIDAD INTELECTUAL
I JORNADAS UNIDAD DE ATENCIÓN A VÍCTIMAS
CON DISCAPACIDAD INTELECTUAL
Someone trying to force you to have sex – OK or not OK?
I JORNADAS UNIDAD DE ATENCIÓN A VÍCTIMAS
CON DISCAPACIDAD INTELECTUAL
Case example
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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 50-58.
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
I JORNADAS UNIDAD DE ATENCIÓN A VÍCTIMAS
CON DISCAPACIDAD INTELECTUAL
Interview
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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.
I JORNADAS UNIDAD DE ATENCIÓN A VÍCTIMAS
CON DISCAPACIDAD INTELECTUAL
Interview
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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.
I JORNADAS UNIDAD DE ATENCIÓN A VÍCTIMAS
CON DISCAPACIDAD INTELECTUAL
Conclusions
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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”
I JORNADAS UNIDAD DE ATENCIÓN A VÍCTIMAS
CON DISCAPACIDAD INTELECTUAL
I JORNADAS UNIDAD DE ATENCIÓN A VÍCTIMAS
CON DISCAPACIDAD INTELECTUAL
I JORNADAS UNIDAD DE ATENCIÓN A VÍCTIMAS
CON DISCAPACIDAD INTELECTUAL
I JORNADAS UNIDAD DE ATENCIÓN A VÍCTIMAS
CON DISCAPACIDAD INTELECTUAL
I JORNADAS UNIDAD DE ATENCIÓN A VÍCTIMAS
CON DISCAPACIDAD INTELECTUAL
Protecting people from abuse
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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
I JORNADAS UNIDAD DE ATENCIÓN A VÍCTIMAS
CON DISCAPACIDAD INTELECTUAL
Interviewing people with intellectual disabilities
Difficulties with evidence
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Research evidence shows some potential difficulties in interviewing people
with intellectual disabilities, especially when an offence may have been
committed. These are:
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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
I JORNADAS UNIDAD DE ATENCIÓN A VÍCTIMAS
CON DISCAPACIDAD INTELECTUAL
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.
I JORNADAS UNIDAD DE ATENCIÓN A VÍCTIMAS
CON DISCAPACIDAD INTELECTUAL
Police interviews
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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.
I JORNADAS UNIDAD DE ATENCIÓN A VÍCTIMAS
CON DISCAPACIDAD INTELECTUAL
Interview process
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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”.
I JORNADAS UNIDAD DE ATENCIÓN A VÍCTIMAS
CON DISCAPACIDAD INTELECTUAL
Interview process
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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.
I JORNADAS UNIDAD DE ATENCIÓN A VÍCTIMAS
CON DISCAPACIDAD INTELECTUAL
Interview process
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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.
I JORNADAS UNIDAD DE ATENCIÓN A VÍCTIMAS
CON DISCAPACIDAD INTELECTUAL
Competence to give evidence
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“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.”
I JORNADAS UNIDAD DE ATENCIÓN A VÍCTIMAS
CON DISCAPACIDAD INTELECTUAL
Competence to give evidence
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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.
I JORNADAS UNIDAD DE ATENCIÓN A VÍCTIMAS
CON DISCAPACIDAD INTELECTUAL
Competence to give evidence
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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.
I JORNADAS UNIDAD DE ATENCIÓN A VÍCTIMAS
CON DISCAPACIDAD INTELECTUAL
A word of warning!
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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.
I JORNADAS UNIDAD DE ATENCIÓN A VÍCTIMAS
CON DISCAPACIDAD INTELECTUAL
To conclude
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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
I JORNADAS UNIDAD DE ATENCIÓN A VÍCTIMAS
CON DISCAPACIDAD INTELECTUAL
Thank you for your attention
Email: [email protected]
Estia Centre
Munro - Guy’s Hospital
66 Snowsfields
London, SE1 3SS
Telephone:
+44 (0)20 3228 9742
Fax:
+44 (0)20 3228 9749
Email: [email protected] web:www.estiacentre.org