‘’The following notes are for guidance only and not meant to be an exhaustive statement of the law. In individual cases it is important that you seek specific advice.’’

Legal rights surround our lives often without us realising.  People with learning disabilities have legal rights that can be overlooked.  The following gives a background to some of the legal matters that often arise within the lives of people with a learning disability.

In English law all persons have the same rights and responsibilities unless they are defined as incapacitated.   A person can be incapacitated because of either:

	A lack of age - There are certain age limits on capacity to consent to various acts
	A lack of understanding - The level of understanding which is required differs from each situation and because of this, the same person may have legal capacity to act in one situation but not in another.

  
MENTAL CAPACITY

The Mental Capacity Act 2005 provides a statutory framework to empower and protect vulnerable people who may not be able to make their own decisions. The Act comes into force in the spring 2007.  It makes it clear who can take decisions in which situations and how they should go about this. It enables people to plan ahead for a time when they may lose capacity.

Five key principles
The whole Act is underpinned by a set of five key principles stated at Section 1:

• A presumption of capacity - every adult has the right to make his or her own decisions and must be assumed to have capacity to do so unless it is proved otherwise;
• The right for individuals to be supported to make their own decisions - people must be given all appropriate help before anyone concludes that they cannot make their own decisions;
• That individuals must retain the right to make what might be seen as eccentric or unwise decisions;
• Best interests - anything done for or on behalf of people without capacity must be in their best interests; and
• Least restrictive intervention - anything done for or on behalf of people without capacity should be the least restrictive of their basic rights and freedoms.

What does the Act do?

The Act enshrines in statute current best practice and common law principles concerning people who lack mental capacity and those who take decisions on their behalf. It replaces current statutory schemes for enduring powers of attorney and Court of Protection receivers with reformed and updated schemes. The situation is complex so seek advice from a solicitor or your local Citizen Advice Bureau.
 

PROPERTY MATTERS

Most every day transactions involve contracts e.g. buying goods, travelling on public transport etc.  The test of mental capacity to contract in each transaction is a test of general understanding.  People may make assumptions about the level of understanding of a person with a learning disability, either for or against their capacity to enter a contract. It is possible to challenge this with the support of professionals and your GP if you consider that the person with a learning disability does have the level of understanding necessary to enter into the contract or if you consider that they have been taken advantage of in the light of their lack of understanding.  Common examples are Life Insurance, Hire Purchase etc.

PERSONAL DECISION MAKING

This is a complex area and individuals may require considerable support to understand the implications of their decisions in terms of rights and responsibilities, in addition to dealing with practical matters.  Marriage, for example, is considered in law to be a straightforward contract between two people which can be readily understood, however it requires a high level of commitment and individuals may require considerable support when considering marriage or entering into a civil partnership.

GENERAL COMMENT

If a person with a learning disability alleges that they have been assaulted then carers (parents and others) should immediately inform the police and follow the guidelines and procedures required for investigating abuse.

If a person with a learning disability is accused of an offence then parents (carers and others) should immediately take advice from a solicitor knowledgeable in this area of the law and with an understanding of learning disability.  Prosecution may not always follow but the procedures for questioning and detention set out in the Code of Practice to the Police and Criminal Evidence Act 1984 must be followed.  An “appropriate” adult must be present during questioning and access to a solicitor is important to protect the rights of the individual.

MEDICAL CONSENT

The rights of people with a learning disability should be protected and their consent or refusal to treatment respected.  The test for capacity to consent to treatment is whether the person concerned can understand in general terms the nature of the proposed treatment and its likely effects.

The legal position is that routine medical treatment, including dental care, minor operations, medications etc, can go ahead, even if the person cannot consent to it.  The doctor treating the person should decide this and must be sure that such treatment is in the patient’s best interests.  In deciding this, it is good practice to consult with carers, parents and others who know the person concerned.  It is not, however, necessary to obtain the signed consent of a parent or carer to such medical treatment.

In certain cases of non-therapeutic treatments such as sterilisation, doctors can apply to the courts for the declaration that treatment in the absence of consent will be lawful on the basis of necessity.

GUARDIANSHIP

Guardians can be appointed for children under the age of 18 years either by deed or in a will.

To date it is not possible for parents to appoint a guardian for their adult dependant i.e. those over the age of 18 years.  The courts can give parents certain financial functions but this does not mean that they have guardianship over that person.

There are a few limited occasions when Social Services may appoint a guardian under the Mental Health Act 1983.

RECEIVERSHIP

If a person with a learning disability inherits or otherwise gains a considerable amount of money or property and they are seen to be unable to manage their own financial affairs then the Court of Protection will appoint a receiver.  This could be a parent or other interested person or, in the absence of these, the Receivership Department of the Court of Protection.  The receiver will administer the money for the person with a learning disability who applies for any money s/he needs.  There is a charge made for this.

The Protection Division                              Telephone: (0207) 269 7000
Public Trust Office
Stewart House
24 Kingsway
London EC1A 6JX
 

APPOINTEE

A parent or other interested person may apply to the Department of Work and Pensions (DWP) to be the appointee of a person with a learning disability in order to collect and apply for that person’s benefit money.

ATTORNEY

A person with a learning disability who is unable to deal with their financial affairs can appoint another person to be their attorney.  The level of capacity necessary is to understand what the power of attorney is.  The registration procedure involves the Court of Protection.

POLICE

If the police wish to interrogate and investigate a person with a learning disability, certain procedures have to be adhered to according to PACE (Police and Criminal Evidence Act 1984).  This says that an “appropriate adult” must be present during the questioning of a person whom a police officer has been told in good faith or whom an officer suspects may be mentally ill or someone with a learning disability or incapable of understanding the significance of questions put to them.  This “appropriate adult” can be a relative, guardian or other person responsible for the person’s care and custody, someone who has experience of dealing with people with a learning disability or any other responsible person over 18 years old who is not employed by the police.  The role of the appropriate adult is active not passive.  They should advise the person being questioned and observe whether or not the interview is being conducted properly and fairly.  They should also facilitate communication with the person being interviewed.

Everyone is entitled to free legal advice if questioned by the police – ask to see your own solicitor or the 24-hour duty solicitor or choose a solicitor from a list the police will give you.

THE EUROPEAN CONVENTION ON THE PROTECTION OF HUMAN RIGHTS - 1950

This gives you basic rights and freedom as an individual under European Law.  Your rights have to be respected by others, including Government Agencies.  It is a statement of values and standards that have to be kept by European Governments.  It covers many rights and freedoms, including a right to life, a fair trial, privacy and freedom of expression and thought.  The European Court of Human Rights in Strasbourg hears Human Rights cases.  A UK Human Rights Act is now in place.  This would mean cases could be handled in the UK, saving time and expense.