Britain First calls this democracy – everyone else calls it fascism

There can be no place in a working democracy for bully boy tactics. Any ‘political party’ that thinks it’s OK to send the boys round, to ‘incite violence’ or to denounce anyone who disagrees with them as “traitors” who should be “hung (sic), drawn and quartered” is unworthy of serious consideration in any mature democratic system.

Jayda BF freedom of speech 1

This weekend has just confirmed precisely what we’ve all known for months. Britain First is a group of neoNazi thugs who meet peaceful opposition with violence and who have no regard for British values like democracy, equality or fairness. Can you imagine how tragic it would be if these violent racists were ever to gain any actual power?
image
Fortunately ‘the Fash’ has never really had much of a chance in UK – we’re too fair-minded.

They shall not pass!

BF not the master race

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/

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