Safeguarding 9: Discrimination

As most people are aware many forms of discrimination are unlawful in British society as they are throughout much of the rest of the world. However the nature of discrimination (what it actually means) isn’t always so clearly understood. The confusion about what is and is not discrimination isn’t helped by the way that certain individuals or groups claim ‘discrimination’ when really they are simply failing to get their own way.

A recent example of this involves the Bristol ‘Healing On The Streets’ (HOTS) team. This faith-based group published materials claiming that any and all ailments from mental disorders to cancer would be cured by the power of prayer. They did not state this as mere opinion but rather they presented it as fact without any reasonable evidence to support the claim. This would be a problem in any organisation, not just a religious ministry.

Hayley Stevens is a paranormal investigator who was ‘leafleted’ by a member of the HOTS team. She was concerned that the published material may offer ‘false hope’ to desperate and vulnerable people. She was also concerned that it might discourage people from seeking medical care and so she contacted the Advertising Standards Authority (ASA) who upheld her complaint and ordered the group to remove such claims from its publications. The HOTS team subsequently issued a statement claiming that Hayley represented a group, generally opposed to Christianity. They have since removed that statement from their website.

Criticising fraudsters for false advertising is fair comment. The reason for criticism of the HOTS team is not their religion, it is their unethical behaviour in making false claims that would be a problem whoever produced the publicity.

We can see then that what does or does not constitute discrimination depends upon relevance. It would be discriminatory to say that all religious people are liars but it is not discriminatory to ask all people, religious or not, for evidence to back up claims of miracle treatments and to expect them to abide by the law and by accepted advertising standards when they cannot.

It is when we make unreasonable distinctions between people that we are guilty of discrimination. For example when we make assumptions about someone based upon characteristics that have nothing to do with the issue at hand. This sort of discrimination, based upon irrelevancies, is what happens when people make judgements based upon skin colour, religious affiliation, nationality, ethnicity, disability, profession or sexual preference. Skin colour for example has nothing to do with trustworthiness and disability does not invalidate a person’s right to be treated with respect. In both cases, colour and disability, the ‘condition’ is irrelevant to the point under consideration.

However the fact that an individual belongs to a group that is regularly discriminated against does not mean that they can do no wrong. A gay man who assaults his neighbour in a dispute about a garden fence will still be prosecuted. But he will be prosecuted because of the assault. His sexuality is irrelevant. He may claim discrimination on the grounds of his sexuality but his claim will not be taken seriously by the courts because his sexuality is not relevant to the case at hand.

On the other hand a gay couple refused accommodation in a hotel or guest house would be supported under anti-discrimination legislation for exactly the same reason. Their sexuality is not relevant to their right to use services.

Similairly if the manager of a residential drug rehabilitation unit were to evict an Asian man because of his use of illicit substances on the premises he could not then claim racial discrimination. The eviction would be because of the rules of the service which are applied equally to all service-users regardless of skin colour or racial type. Colour is simply irrelevant and therefore the decision to evict is not discriminatory – it is simply an appropriate response.

The basic ‘rule of thumb’ then is to ask if the alleged discrimination is relevant. Is your action the result of the individual’s need or behaviour or is it motivated by the fact that they belong to a particular group.

If it’s because of individual circumstances and would be the same whatever subgroup the person belonged to then it’s probably not discrimination. I say probably not because there is the additional aspect of institutional discrimination that we will consider in a later post. If it’s because of the subgroup they belong to (eg religion, LGBT, disabled, Asian etc) then there’s a good chance you really are discriminating.

As ever ‘relevance’ is the key when deciding whether or not you’re being discriminatory.

About the Safeguarding series

This blog series first appeared on Stuart’s personal blog early in 2010. It has been reposted here as part of a process of ‘rationalisation’ in which work from several blogs has been removed and reposted on only two.

Safeguarding 3: Basic definitions

LawWe need to know what we mean by ‘abuse’ and additionally what is meant by the term ‘harm’. This may sound like an obvious and perhaps even pointless diversion but it’s vital to clarify because there are so many misconceptions about the nature of abuse.

For example one prevalent myth is that if the service-user doesn’t like what we do then it’s abuse. However this clearly isn’t all there is to it. If it were every eviction from social housing would be seen as abuse, as would every occasion when staff confront service-users about antisocial or other forms of challenging behaviour.

If there is a ‘shorthand’ way of defining abuse it’s to say that it’s a violation of an individual’s human and civil rights. This is different from simply saying that if a person doesn’t like what we do we’re being abusive. In England and Wales the law recognises seven different forms of abuse.

These are:

Financial
Physical
Sexual
Emotional’/psychological
Discrimination
Institutional
Neglect

In Scotland two other forms of abuse are identified – these are:

Self
Verbal

Harm is slightly different from abuse in that there doesn’t need to be an abusive action in order to cause harm. Bad luck happens and it’s not always appropriate to blame someone for every misfortune, whatever the solicitor might tell you.

So harm might result from abuse but then again it might not.

There is no clear definition of ‘harm’. The closest I have been able to find to a workable definition comes from Scottish legislation – The Adult Support and Protection (Scotland) Act 2007 – but really it’s a rather circular description.

Section 53 of the ASP states harm includes all harmful conduct and, in particular includes:

conduct which causes physical harm, conduct which causes psychological harm (for example by causing fear, alarm or distress), unlawful conduct which appropriates or adversely affects property, rights or interests (for example theft, fraud, embezzlement or extortion), conduct which causes self-harm.

We can see that this still doesn’t adequately define harm but then to do so would be both unrealistic and unfair. In reality the judgement about whether or not a person is actually harmed is either obvious or decided upon the individual circumstances of the particular case.

Such decisions take into account a wide range of factors including notions of accepted best practice (in respect of workers) and also ‘custom and practice’ as well as an understanding that nobody gets through life without the occasional piece of distress. Into each life a little rain must fall.

However this does not mean that workers can go around harming people without fear of censure. In fact, if you work with vulnerable groups you are duty bound to do all that is reasonable to prevent harm or potentially face a range of consequences from dismissal to imprisonment.

What then do we mean by ‘vulnerable’?

In Scotland section 3(1) of the ASP defines ‘adults at risk’ in the following way:

Section 3(1) defines “adults at risk” as adults who:

are unable to safeguard their own well-being, property, rights or other interests;
are at risk of harm;
and because they are affected by disability, mental disorder, illness or physical or mental infirmity, are more vulnerable to being harmed than adults who are not so affected.

It’s a ‘three point test’ which makes it very clear that safeguarding legislation applies to those people who are deemed to be more vulnerable than their peers.

In England & Wales the definition of a ‘vulnerable adult’ has essentially the same meaning but is expressed in a rather less methodical way:

“A vulnerable adult is a person who is, or may be, in need of community care services by reason of mental or other disability, age or illness and who is or may be unable to take care of themselves or be unable to protect themselves against significant harm or exploitation.”

(Lord Chancellor’s dept. 1997)

Throughout this series I will concentrate on the safeguarding systems and legislation concerning England, Wales and Scotland only because these are the areas I cover as a trainer. I am not attempting to outline the rules for any other part of the world – that would be beyond both my remit and my knowledge

About the Safeguarding series

This blog series first appeared on Stuart’s personal blog early in 2010. It has been reposted here as part of a process of ‘rationalisation’ in which work from several blogs has been removed and reposted on only two.

Safeguarding 2: A little history

Adult Protection has become an increasing concern over recent years. Several high profile incidents involving abuse of vulnerable people have prompted UK society to look again at the systems we have in place to safeguard those who need it most.

Throughout this series we will outline the main points of the current safeguarding system. First though we’ll review the recent history of safeguarding to get a sense not only of how it has evolved but also of what its trying to achieve. This will make it easier to understand the current legislation and to use it in practice.

As a trainer I am convinced that people make sense of things best when they know the ‘how’ and the ‘why’ as well as just the ‘what’.

We’ll begin with the Protection of Vulnerable Adults (POVA) system. This was introduced by the Care Standards Act 2000 with guidance from the government’s ‘No Secrets’ document. This outlined the definitions of abuse and of vulnerable adult. It also created the POVA list – a register of the names of people who were deemed to be unfit to work with vulnerable people because they represented too high a risk.

The POVA list was one of three basic lists:

1.The POVA list: related to vulnerable adults
2.The POCA list: related to children
3.List 99: Related to education

These three lists were operated by different organisations but all relied upon the enhanced CRB check. The CRB check (Criminal Records Bureau) check provided information on criminal convictions. The enhanced CRB check provided more than just this basic information. It also noted suspicions and unproven allegations that might be relevant.

When delivering training on adult protection and safeguarding I almost always come across objections when I make this point. This is understandable because it seems to contradict the long-standing legal principle of the presumption of innocence: the idea that we are innocent until proven guilty.

My response to this is always to put forward the following hypothetical scenario from the world of child protection:

Imagine a teacher – a good teacher – we’ll call him ‘Bill’. Bill has been in the job for many years and gets great academic results for most of the children he teaches. Bill specialises in the 7 – 11 year old age bracket.

Some of the children Bill teaches tend to do very badly though. They tend to be little girls with blonde hair and they often become withdrawn and emotionally needy shortly after joining Bill’s classes. I don’t think I need to be too specific here – the results of paedophilia are well known and the above scenario illustrates the point well enough.

Now imagine that this teacher has been working in a particular school here in Cumbria for a few years when he notices that some of the parents have taken to ignoring him. Bill also notices that when they’re waiting for their children at the school gates some of the parents tend to bunch together and seem rather conspiratorial whenever they see him. Bill’s no fool. He knows what’s about to happen. It won’t be very long before he’s formally reported to the local police.

So Bill applies for other jobs in other schools out of the area. His overall academic record is good and the head will give him a good reference (not least because she’s heard the rumours too and wants rid of the problem). Bill leaves Cumbria and takes up a post in a school in the neighbouring county of Lancashire. There’s no conviction and so no information follows him. He’s in a different education authority with a clean slate.

A couple of years later, having continued his abuses with a fresh group of Lancastrian children, Bill moves again, perhaps to Lincolnshire this time. And then a year or two later he moves once more – this time to your home town. Now Bill’s teaching your children.

That’s OK isn’t it?

New Scotland YardIt doesn’t take a genius to understand that if we can only use convictions to identify abusers we will fail more often than we succeed. But this gives us a dilemma as a nation. Whatever we do we cannot have a perfect system – mistakes will be made. The choice we have had to make as a society is what the price of our mistakes will be.

If we rely upon convictions only then the price will be countless abused children. Imagine how many youngsters a teacher will come across in the space of a career. How many vulnerable elderly residents might an abusive ’carer’ come into contact with too?

If we use wider sources of information the price of our mistakes will be some people having to get a different job. Neither outcome is ideal but then it’s not an ideal world. Which price do you consider to be the lesser of two evils? I think – and the government thinks – that the lesser price is the fact that some people will need to get a different job.

So child protection systems solved the problem, at least in part, by considering wider information and adult protection has followed suit – hence the enhanced CRB check (Now the DBS). Even then it doesn’t necessarily mean that the individual whose information shows up on the check is barred from working in the care sector but they may have some things to discuss with prospective employers at interview.

Only in the more extreme cases are people actually prevented from working with vulnerable adults and that was what the old POVA list was about. People whose names ended up on the POVA list were legally barred from working in social care.

In 2005 Kings College London produced a report analysing the first 100 referrals to the POVA list. Their findings were significant and in parts very worrying. The document can be viewed online here.

Firstly it was clear that the vast majority of referrals came from the independent sector with only around 5% of referrals generated by the NHS. This is unlikely to be because the NHS does not have any abuse issues – in fact it may demonstrate a culture of neglect and ‘turning a blind eye’ that needs to be addressed as a matter of urgency. When abuse in the NHS does come to light it is often extreme and systemic as was demonstrated in the North Cornwall scandal of 2006.

The report also noted that in many cases abusive practice had been tolerated and left to continue for long periods. This was especially true in smaller establishments. The vast majority of abuse involved front line workers.

Perhaps most worryingly several workers had actually been convicted of relevant offences and yet continued to work in health or social care. The main arguments put forward in mitigation by those accused of abuse were:

Overwork;
Lack of training (particularly relating to challenging behaviour and hostility);
Accidental harm/lack of intent to cause harm;
Mental health problems experienced by the alleged abuser (often linked to working conditions).

“In our reading of the referrals there appeared sometimes to be a merging of poor skills and abuse”

The Kings College report acknowledged the reality of many of these mitigating circumstances and asked for greater scrutiny of employers and their practices when determining the truth of such allegations:

“As a means of reducing harm to vulnerable adults, it is clearly important to ensure that people of general ill-will or those who lack capacity are prevented from working in social care. However, it is also important to balance the focus on individual abusers and episodes of abuse with a wider examination on the quality
of social care employment practice, availability of training, working conditions, impact of under-staffing and ongoing nature of stress.”

“Consequently, it is possible that previous CSCI reports on the provider unit or company may be a valuable addition to the information to be considered in making decisions about referrals. In situations in which a worker claims not to have had training, examination of such records may help provide better evidence. Furthermore, some referrals included evidence about staffing levels at the time of and immediately preceding the incident or periods of misconduct would be useful. Such evidence may help in deciding individual cases, but also identify situations which might give rise to ongoing concern about the safety of service users in those establishments.”

Although several workers were dismissed and some were reported to the police not all of them were prosecuted. This is because it can be difficult to establish guilt in a court (beyond reasonable doubt) even when there is enough evidence (balance of probabilities) to dismiss them.

Differing ‘burden of proof’ has been a long-standing problem, especially in child protection. Child protection (CP) is an area of practice that has provided many answers to problematic issues and so it was used as a basic blueprint to guide adult safeguarding procedures.

Other problems identified by this and subsequent studies involved the lack of partnership working between sectors and what appears to be an element of ‘preciousness’ in some local authorities with regard to the sharing both of information and of resources.

In response to these sorts of concerns and also serious incidents such as the Soham murders (Ian Huntley) and the case of Miss X (Scottish Borders Enquiry) new legislation was drawn up and has been implemented throughout UK.

References and further reading

Department of Health (2000) No Secrets: Guidance on developing and
implementing multi-agency policies and procedures to protect vulnerable adults
from abuse, London, Department of Health.

Department of Health (2004a) Protection of vulnerable adults scheme in England
and Wales for care homes and domiciliary care agencies: a practical guide,
London, Department of Health.

Department of Health (2004b) ‘P1.1 Rounded Referrals, Assessments and
Packages of Care, for adults’ Report of findings from the 2003-04 RAP
Collection, London, Department of Health.

Fyson, R., Kitson, D. and Corbett, A. (2004) ‘Learning disability, abuse and
inquiry’, in: Stanley, N. and Manthorpe, J. (eds) The Age of Inquiry: Learning and blaming in health and social care, London, Routledge.

Health & Social Care Information Centre (2004) Community Care Statistics 2004:
Home care services for adults, England, London, Department of Health

House of Commons Health Select Committee (2004) Report on Elder Abuse,
London, The Stationery Office.

Mathew, D., Brown, H., Kingston, P., McCreadie, C. and Askham, J. (2002) ‘The
response to No Secrets’, The Journal of Adult Protection, 4(1) pp. 4-14.

Social Care Workforce Research Unit 2007) Partnership and Regulation in Adult Protection http://www.prap.group.shef.ac.uk/PRAP_report_final_Dec07.pdf

Summer, K. (2004) ‘Social services’ progress in implementing No Secrets – an
analysis of codes of practice’, Journal of Adult Protection, 6(1) pp. 4-12.

The Nursing and Midwifery Council (2004a) Reporting lack of competence: A
guide for employers and managers, London, NMC.

The Nursing and Midwifery Council (2004b) Reporting unfitness to practise: A
guide for employers and managers, London, NMC.

About the Safeguarding series

This blog series first appeared on Stuart’s personal blog early in 2010. It has been reposted here as part of a process of ‘rationalisation’ in which work from several blogs has been removed and reposted on only two.

Safeguarding 1: Introduction and contents

This blog series was originally written in 2010, partly in response to a political debate raging at the time around the rights of workers vs the rights of vulnerable adults. When I began the law was clear and, I believe, appropriate in placing meaningful restrictions upon those who wanted to gain unsupervised access to vulnerable people.

However I never completed the series. That was because in May of that year the indecisive general election here in UK resulted in a new coalition government who proceeded to change the existing and planned safeguarding arrangements in UK.

The ConDem government changed the safeguarding system

The ConDem government changed the safeguarding system


What follows then is not what was originally planned. Instead I’ll be posting the basic principles of safeguarding that have remained constant. The series then is likely to be of use to front line care workers trying to make sense of what abuse is and is not as well as their own role in protecting people.

This series will cover…

Safeguarding 2: A little history

Safeguarding 3: Basic definitions

Safeguarding 4: Horror stories

Safeguarding 5: Financial abuse

Safeguarding 6: Physical abuse

Safeguarding 7: Sexual abuse

Safeguarding 8: Psychological/Emotional abuse

Safeguarding 9: Discrimination

Safeguarding 10: Institutional abuse

Safeguarding 11: Neglect

Safeguarding 12: Record, report, communicate

About the Safeguarding series

This blog series first appeared on Stuart’s personal blog early in 2010. It has been reposted here as part of a process of ‘rationalisation’ in which work from several blogs has been removed and reposted on only two.

The Convention 18: The right to freedom from discrimination

ARTICLE 14
The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.

As most people are aware many forms of discrimination are unlawful in British society as they are throughout much of the rest of the world. However the nature of discrimination (what it actually means) isn’t always so clearly understood. The confusion about what is and is not discrimination isn’t helped by the way that certain individuals or groups claim ‘discrimination’ when really they are simply failing to get their own way. A recent example of this involves Father Raniero Cantalamessa, Pope Benedict’s personal preacher who likened the current criticism of the Roman Catholic church to anti-semitism. Cantalamessa claimed that the current outrage at the Catholic church’s failure to protect children from paedophile priests is anti-catholic discrimination.

In fact nothing could be further from the truth.

Raniero Cantalamessa

Raniero Cantalamessa

What we see is arguably pro-Catholic discrimination in that the leaders of the church appear to be receiving preferential treatment. If the management of any other organisation had protected paedophiles from the law and knowingly continued to place them in positions of trust with vulnerable children they would be prosecuted. The ‘blind eye’ that the current Pope himself turned in the past would, according to UK law at least, result in prosecution and very probably a lengthy prison sentence. If there is any discrimination at all it is not anti-Catholic. It is pro Catholic.

The desire to protect children from abuse is not discrimination and such claims are merely an attempt to distract attention from the real issue – the repeated abuse of children by paedophile priests in the full knowledge of a hierarchy that was more interested in secrecy than in upholding the law. This would be a problem in any organisation, not just a Catholic one.

Criticising criminals for their abuse is fair comment. The reason for criticism of the church hierarchy is not their Catholicism, it is their criminal behaviour in shielding abusers from justice and continuing, consistently to place paedophiles in positions where they can repeat their abuses of vulnerable children.

We can see then that what does or does not constitute discrimination depends upon relevance.

It would be discriminatory to treat all Catholics, or even all Catholic clergymen as though they were child abusers. This is because Catholicism is not relevant to paedophilia per se. Not all Catholics are paedophiles and not all paedophiles are Catholic.
It is when we make unreasonable distinctions between people that we are guilty of discrimination. For example when we make assumptions about someone based upon characteristics that have nothing to do with the issue at hand. This sort of discrimination, based upon irrelevancies, is what happens when people make judgements based upon skin colour, religious affiliation, nationality, ethnicity, disability, profession or sexual preference.

Skin colour for example has nothing to do with trustworthiness and disability does not invalidate a person’s right to be treated with respect. In both cases, colour and disability, the ‘condition’ is irrelevant to the point under consideration.

However the fact that an individual belongs to a group that is regularly discriminated against does not mean that they can do no wrong. A gay man who assaults his neighbour in a dispute about a garden fence will still be prosecuted. But he will be prosecuted because of the assault. His sexuality is irrelevant. He may claim discrimination on the grounds of his sexuality but his claim will not be taken seriously by the courts because his sexuality is not relevant to the case at hand.

On the other hand a gay couple refused accommodation in a hotel or guest house would be supported under anti-discrimination legislation for exactly the same reason. Their sexuality is not relevant to their right to use services.

Similairly if I, when I was manager of a residential drug rehabilitation unit had to evicted an Asian man because of his use of illicit substances on the premises he could not then have claimed racial discrimination. Actually, anyone who knows me would understand how ludicrous such a claim against me would be but that’s not the point. The eviction would be because of the rules of the service which are applied equally to all service-users regardless of skin colour or racial type. Colour is simply irrelevant and therefore the decision to evict is not discriminatory – it is simply an appropriate response.

The basic ‘rule of thumb’ then for front line workers is to ask if the alleged discrimination is relevant. Is your action the result of the individual’s need or behaviour or is it motivated by the fact that they belong to a particular group.

If it’s because of individual circumstances and would be the same whatever subgroup the person belonged to then it’s probably not discrimination. I say probably not because there is the additional aspect of institutional discrimination that we will consider in a later post. If it’s because of the subgroup they belong to (eg Catholic, gay, disabled, Asian etc) then there’s a good chance you really are discriminating.

As ever ‘relevance’ is the key when deciding whether or not you’re being discriminatory.

The Human Rights Council recently expressed grave concern at discrimination & violence based on sexual orientation
Their concerns are mirrored by the Crown Prosecution Service here in UK who reported on prosecution rates for ‘hate crimes’ here.

About ‘The Convention’

This series of posts first appeared on Stuart’s blog in June 2011. It is not intended to be a comprehensive or even particularly authoritative reference guide to the ECHR. Rather it is a brief introduction to a much larger and infinitely more fascinating subject. You can download the entire series in PDF format here: http://stuartsorensen.wordpress.com/amj-freebies-downloads-and-services/

The Convention 17: The right to effective remedy

ECtHR in sessionThere is little that needs to be said about article 13. All it really means is that each country must enact laws to ensure that European Convention rights are upheld. If they are not then enacted then aggrieved citizens can take their country to the European Court of Human Rights to sit in judgement in their particular case.

Appealing to Europe is expensive and time-consuming though and so most countries try to ensure that their own, domestic legislation reflects the ECHR. Here in UK that’s what the Human Rights Act 1998 is all about. It includes all the articles of the ECHR except for article 13. That’s because the government believes that article 13 is automatically upheld simply because the Human Rights Act 1998 exists. It provides effective remedy in itself and needs no further discussion.

ARTICLE 13 says:

“Everyone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”

The Human Rights Act 1998 also re-emphasises the duty of all UK courts to interpret the law in a way that is consistent with the ECHR when reaching a judgement. There is a ‘side option’ known as a ‘statement of incompatibility’ which allows the court to say that existing UK law cannot be interpreted in keeping with the ECHR and so pass it back to Parliament to review but this is rarely needed.

About ‘The Convention’

This series of posts first appeared on Stuart’s blog in June 2011. It is not intended to be a comprehensive or even particularly authoritative reference guide to the ECHR. Rather it is a brief introduction to a much larger and infinitely more fascinating subject. You can download the entire series in PDF format here: http://stuartsorensen.wordpress.com/amj-freebies-downloads-and-services/

The convention 9: No punishment without law

In an earlier post I mentioned the appalling events that took place at Winterbourne View Hospital, a private establishment owned by Castlebeck.

wpid-Panorama-abuse-allegation-007.jpgThere have been some excellent blogs written about the scandal since it broke on a Panorama programme last week. These have mainly been from the perspective of liberty. For example This ‘Fighting monsters’ blog or this one from Lucy Series at ‘The small places’.

Of course this is important. In fact it’s vital that those of us who work in health and social care understand and respect the right to liberty. However there’s another, equally important principle to consider here. The idea that there can be no punishment without law. Welcome to Article 7 of the European Convention on Human Rights.

According to Article 7 people have the right not to be convicted of a crime that was not an offence at the time they committed it. They also have the right not to be given a harsher sentence than the maximum allowed at the time of the offence. This seems eminently fair and reasonable and few people object to it – at least in theory. It’s when we start to look at the wider implications that things become interesting – especially in health and social care.

wpid-winterbourne_2376241b.jpgThe Panorama footage from Winterbourne View leaves no room for doubt that staff were taking it upon themselves to ‘teach residents a lesson’ whenever their behaviour didn’t meet expectations. At least it leaves no doubt in my mind but of course, I’m not the court. This apparent abuse is all the more poignant when we learn that the expected behaviours involved passive acceptance of mistreatment and that the punishments meted out to them were torture by any definition.

But torture is not the focus of today’s blog. Instead I want to concentrate upon the widespread practice of people taking the law into their own hands. That’s what the staff at Winterbourne view did (allegedly) when they decided who to punish and who to let be. They were setting themselves up as judge and jury. But they were not judges or jurors and they most certainly were not entitled to act as executioners. Remember the maxim:

No punishment without law.

There is no law that allows care workers to punish anyone. That’s not what our work is about. If a criminal offence has been committed then we have a legal system designed to deal with it. A legal system that abides by the laws of the land and that understands proportionate punishment – not using a hammer to crack a nut.

Winterbourne View staff wrestling someone to the ground because they ‘looked at them’ is neither lawful nor proportionate. It’s a punishment meted out by someone with no right to decide upon guilt and penalty in the first place. That really is punishment without law. Throwing cold water over residents, pinning them to the floor with chairs or standing on their hands is equally indefensible.
The simple truth is that only the courts can condemn and only the courts can punish. Private citizens are not authorised to take the law into their own hands, especially if they are in charge of vulnerable people.

But this principle goes much further than Winterbourne View. One of the most common misunderstandings I come across when delivering training on challenging behaviour work is the belief that behavioural regimes involve punishment. They do not. Punishment is both illegal and unethical. It’s abuse.

edl rioters in BradfordA more obvious example of Article 7 at work is in the field of ‘hate politics’. From animal rights campaigners to religious fundamentalists there are always individuals ready to hurt those with whom they disagree. They see a difference of opinion, of race or of religion as an offence worthy of punishment and sometimes they take the law into their own hands.

Currently the UK group most often prosecuted for condemning and punishing others is the English Defence League whose members, ironically enough, regularly ‘defend’ England by attacking and harassing English citizens.

It is ironic that the ECHR not only prevents groups like the EDL from getting their way but also ensures that the Islamic ‘Sharia’ Law they fear so much could never hold sway in Europe. If EDL members would only stop and think for a moment they’d see that the very convention they oppose so vehemently protects them from the thing they fear the most.

It really is true that the more people know about the ECHR the more they appreciate it and the positive impact it has for us all.

About ‘The Convention’

This series of posts first appeared on Stuart’s blog in June 2011. It is not intended to be a comprehensive or even particularly authoritative reference guide to the ECHR. Rather it is a brief introduction to a much larger and infinitely more fascinating subject. You can download the entire series in PDF format here: http://stuartsorensen.wordpress.com/amj-freebies-downloads-and-services/

The Convention 8: The right to a fair hearing

Years ago a national newspaper ran a series of TV advertisements with the slogan…

“Ever wished you were better informed?”

One that sticks in my mind involved the image of a scary looking skinhead running down a busy street, his face set in grim determination and jumping on an innocent looking man in a pin striped suit. The force of the ‘assault’ sent both men hurtling to the ground in what looked ‘at first sight’ like a thuggish attack on a defenceless victim.

Then the camera angle widens and it becomes clear that far from assaulting a passer by the skinhead had just saved his life. Risking his own safety he had prevented the ‘victim’ from being crushed by falling bricks from a scaffold above his head.

Courts of Justice

Courts of Justice


The term ‘at first sight’ is also used in law. It’s not the end of the story though – it’s the beginning. Just because a person looks guilty doesn’t mean that they are as the advertisement described above showed so well. Most people have found themselves in situations where they have done nothing wrong but where ‘at first sight’ evidence makes it look as though they have. That’s what article 6 is all about – the right to a fair hearing.

“1. In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law……..

2. Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.

3. Everyone charged with a criminal offence has the following minimum rights -
(a) to be informed promptly, in a language which he or she understands and in detail, of the nature and cause of the accusation against him;

(b) to have adequate time and facilities for the preparation of his defence;

(c) to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require;

(d) to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him;

(e) to have the free assistance of an interpreter if he cannot understand or speak the language used in court.”
ECHR – Article 6

Article 6 is the friend of the accused, not because it protects guilty people from punishment but because it protects the innocent from unsafe and ill-considered conviction.

But article 6 applies to more than just criminal proceedings. It also covers civil proceedings such as claims for damages or tribunal hearings. The interface between civil proceedings and the ECHR can be complex and I don’t pretend to be qualified to explain it here but if you think you have not been heard fairly this may be an avenue to explore with your solicitor.

Article 6 also covers mental health and mental capacity legislation and their associated tribunals which is why both the Mental Health Act 83/07 and the Mental Capacity Act 2005 (including the 2007 ‘DoLS’ amendments) include provision for advocacy and review/appeals processes.

In short, like all the articles of ‘The convention’ article 6 ensures fairness and equitable treatment. Everyone has the right to have their case heard and to be treated fairly under the law. It also makes provision for legal aid, for advocacy and fair access to information (with an interpreter if necessary) and for reasonable consideration in all court proceedings.

So far then we have seen that the ECHR ensures:

Right to life;
Freedom from torture;
Freedom from Slavery;
Right to liberty;
Right to a fair trial.

What’s so bad about that?

In the next post we’ll consider article 7 – No punishment without law.

About ‘The Convention’

This series of posts first appeared on Stuart’s blog in June 2011. It is not intended to be a comprehensive or even particularly authoritative reference guide to the ECHR. Rather it is a brief introduction to a much larger and infinitely more fascinating subject. You can download the entire series in PDF format here: http://stuartsorensen.wordpress.com/amj-freebies-downloads-and-services/

The Convention 1: Why this, why now?

Welcome to ‘The Convention’, a series of blog articles. In this little collection of posts I intend to cover one of my favourite examples of international cooperation, the European Convention on Human Rights (ECHR).

ECHR in sessionThis much maligned and misunderstood convention is one of Europe’s most important safeguards with far-reaching implications that protect us all. For a rights and liberties geek like me the convention is not only fascinating, it’s indispensible.

I should be clear from the outset though. I’m not a lawyer and this series of posts is in no way intended to be a particularly thorough or expert exploration of the European Convention on Human Rights. Rather it is a short introduction to The Convention and the role it plays in our society. If you want advice or information about a specific case then my advice would be to take proper legal advice from a suitably qualified professional. I’m really just a bloke with an interest in rights and a passion for blogging.

Unfortunately the convention has come under attack in recent years. Sometimes these attacks come from those who seek to remove its general protections for their own advantage. More often though they come from people who simply don’t understand the convention’s purpose and history. That’s why I’ve decided to write this series – to help me to explain just what it is that so many people oppose so vehemently.

I’ve met many otherwise reasonable people who think that human rights should be removed, mainly in relation to people they don’t like, people they see as somehow ‘different’ and therefore ‘less deserving’ of legal protection. For example the far right English Defence League (EDL) recently called for the arrest and conviction of Muslim men who had already been acquitted of a murder that might not even have taken place. This anti Muslim group seemed to be more interested in the suspects’ faith than in the fact that there was no evidence against them and no case to answer.
Human rights opposers see the ECHR and the UK’s Human Rights Act as preventing them from ‘dealing with’ those who are different. For example they think that it gives citizens from other cultures, races and religions equality under the law – and they’re absolutely right, it does.

That’s one of the things that the convention was designed to do shortly after the end of the second world war. In fact, when exploring the purpose of the ECHR and the way that it affects us today it’s almost impossible to avoid considering the atrocities of the holocaust, the pressure of the jackboot on occupied Europe, the treatment of disabled people or those from ‘non Aryan’ races and the political violence of ‘National Socialism’.

It’s no coincidence that far right groups such as the British National Party (BNP) and the English Defence League (EDL) would like to see the UK pull out of the convention. It outlaws discrimination on the grounds of race or religion and so prevents them from ever achieving their goals. Similairly the UK ‘ConDem’ coalition government has found some of its more draconian policies thwarted by the convention which upholds the right of citizenship and fair treatment. The previous labour government also fell foul of the convention when it attempted to have citizens arrested and detained for long periods without charge, trial or conviction.
In terms of health and social care much of our domestic legislation such as the Human Rights Act and the Mental Capacity Act is based upon the ECHR and recent alleged care related offences at Castlebeck’s ‘Winterbourne View’ home near Bristol can be linked back to the convention as well.

And yet so many UK citizens oppose the ECHR without realising just what they are arguing against. Principles such as the right to life, the right to privacy and the freedom to follow one’s religion are all ECHR principles. The principle of ‘no punishment without law’ and the rights to liberty and to freedom of speech come from the convention too.

Sexual equality and disability rights in the workplace, as well as in care and other settings link directly back to the convention as do workers rights, freedom from slavery and even from torture. These are just some of the safeguards that we all enjoy because of the European Convention on Human Rights.

Additionally, perhaps most upsetting for neo Nazi groups such as the BNP, the convention guarantees freedom of marriage, respect for family life and the right to a fair trial. It also makes it impossible to prosecute someone for doing something that was not illegal at the time they did it. For example making immigration illegal would not criminalise current UK citizens, whatever their ethnic origin might be. Nor would it make it possible to ‘send them home’ (whatever that might mean).

In short the European Convention can be thought of as a kind of antidote. If intolerance and fascism are the disease then the ECHR is at least part of the cure. Heavy handed governments and unfair, discriminatory street movements, however loud they shout are powerless in the face of the ECHR. No wonder the UK’s neo Nazis want us to pull out of Europe.

If this description seems a little melodramatic read on. As this series develops we’ll consider how and why the ECHR was developed in the first place. The convention was and still is a direct response to Hitler’s ‘Third Reich’ and some of the worst atrocities ever committed on European soil.

Long live The Convention

About ‘The Convention’

This series of posts first appeared on Stuart’s blog in June 2011. It is not intended to be a comprehensive or even particularly authoritative reference guide to the ECHR. Rather it is a brief introduction to a much larger and infinitely more fascinating subject. You can download the entire series in PDF format here: http://stuartsorensen.wordpress.com/amj-freebies-downloads-and-services/

Islam, far right nationalists and the vicious God of Abraham

It really shouldn’t be necessary to write this post. But unfortunately it is. That’s the problem with fanatical extremists. They think only in black and white terms and so anyone who, for example doesn’t hate Muslims must be a Muslim themselves. As an atheist I thought that a particularly stupid assertion from an EDL supporter recently (see the comments).

So I’ve decided to be clear, once and for all…

Islam

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I am not a Muslim. I am not a believer in any deity. I consider all religions to be both silly and harmful. As the late, great Christopher Hitchins put it, religions belong to the ignorant “infancy of our species”. During those dark days of prehistory even the most learned people had no idea what the natural world was about. This led to an assumption that whatever people didn’t understand must have been the work of a magical supreme being. The notion of Gods was born.

So I think all religions are silly but…. and this is the important bit…. I am adamant that:

1 People have a right to disagree with me;
2 I may be wrong;
3 So long as people don’t try to impose their lifestyle upon me I am more than happy to return the compliment;
4 What consenting adults do amongst themselves is no business of mine.

And that last part really is an issue for me. But not just with Islam – with all religious groups from Islam to Judaeism, from Catholicism to Cargo cults. I believe that to inflict religious indoctrination of any kind on to children is abuse.

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● If an adult Christian wants to live his life in shame and assumptions about his own pathetic ‘unworthiness’ so be it;
● If a grown Muslim woman wants her ‘evil’ clitoris and labia removed (often causing infection and death), fair enough;
● If a mature Jewish man wishes to contract herpes by having a Rabbi remove his foreskin with his teeth that’s fine by me;
● And if a young Jehovah’s Witness mother chooses to bleed to death after giving birth rather than to accept a blood transfusion that’s fair enough too.

I think that all these things would be tragic but in every case it’d be their choice. It would have nothing to do with me.

So my only real beef with Islam is the same one I have with ALL religions. I wish they’d stop inflicting it upon helpless children. Other than that – it’s OK to be different. So long as you leave the rest of us alone.

Sharia courts

Which, of course, brings us to the notion of Sharia law and the vicious God of Abraham….

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I would oppose any attempt to impose Sharia law on myself or upon my society. Indeed, if I truly believed that there was any chance of that barbaric, Mosaic system being imposed I’d be the first to man the barricades. It’s a legal system based upon a moral compass that points straight back to the iron age.

But it’s no worse than the fundamentalist Christian ‘courts’ that also exist, equally informally in this country. In both cases people choose to submit to the ‘judgements’ of religious ‘courts’ but the law of the land still applies. Wife beating is still illegal in UK even though the ‘law of Moses’ says that it’s OK. Women subjected to such abuse can still prosecute their abusers regardless of religion.

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So you see Sharia is no more a threat to Western civilisation than Christianity and Judeaism (barbaric though all 3 undoubtedly are). No religious convention can be used to excuse rape, ethnic cleansing, slavery, murder, child abuse or arbitrary discrimination (whatever Christian ‘law’ says about these ‘duties’). European law is not religious law.

So far as I’m aware the only exception allowing abuse on religious grounds is the genital mutilation of infant boys whose parents are either Jewish or Muslim. I stress ‘whose parents are either Jewish or Muslim’ because let’s face it these babies are far too young to choose any religion (or to understand the mutilation imposed upon them). Along with many other atheists and humanists I’d love to see that made illegal in the same way that the genital mutilation of infant girls has been.

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I would oppose the imposition of Sharia, Levitical or Talmudic law in a heartbeat. They are all based upon the exact same, vicious God of the Israelites who seemed far more interested in ethnic cleansing, sexual slavery and blood sacrifice than anything modern civilisation might recognise as ‘justice’. Not that there’s anything unique about the God of Abraham in that respect – especially concerning women:
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But I don’t oppose individual Muslims any more than I oppose individual Jews, Christians, Hindus or, indeed anybody else. Except, of course for ….

The English Defence League (EDL)

Recently I’ve been criticised on my blog for opposing far right nationalists such as the EDL and BNP much more than other extremist groups such as Muslims Against Crusades (MAC). In truth I object to extremist, terrorist groups of all kinds but the only ones that claim to speak for me are the EDL and BNP. I’m a white, working class British man and as such I consider it a duty to oppose those fascist, racist groups who claim to represent my own culture and heritage.

To quote Edmund Burke (allegedly)…..

“All that is necessary for evil to succeed is for good men to do nothing.”

I made this point more fully in a series of three posts which can be found here, here and here.

This doesn’t make me a Muslim (the very idea of me being religious in any way at all is both ridiculous and insulting to me). Nor does it make me a “traitor to my race” as another commenter recently described me. I’m a human being and that’s as sectarian as I’m ever going to be. All people are as valid and worthy of rights and respect as anyone else.

I’m not a fan of street violence from any quarter (be the perpetrators linked to EDL, BNP, Combat 18, MAC, UAF or IED). You’re all as bad as each other in my view.

In summary

My position is simple:

● I loathe sectarianism;
● I loathe ALL religion;
● I loathe child abuse and indoctrination;
● I loathe nationalism;
● I accept the right of all people to disagree with me;
● I would oppose ANY imposition of Mosaic law upon my society (be that Islamic, Christian or Jewish);

I believe that these views are echoed by many (although not all, alas) of my fellow working class Britons (of all colours and backgrounds).

The English Defence League does not speak for us!

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