Chapter 16: Offences (part 21)
Part 21 of the Act sets out offences in connection with sexual abuse,
ill-treatment and neglect in relation to a person with mental disorder, and the obstruction of persons carrying out functions under the Act. It should be noted that Part 21 places no statutory duties on those working with people with mental disorder.
Best practice points
Given that there are no statutory duties contained in Part 21 this chapter simply provides guidance on a 'best practice' basis.
The chapter begins with a general overview of how it would be expected that situations where an offence is suspected would be approached.
The remainder of the chapter sets down best practice points for those working with people with mental disorder where there are concerns that an offence may have been committed.
01 There is now an increased awareness within the statutory services, the voluntary and private sectors, and the public domain, of the potential for abuse involving vulnerable people. This has been highlighted in the number of enquiries and inspections, and in the number of legal cases against people in positions of trust and responsibility, as well as members of the public.
02 The responsibility for the protection of vulnerable adults extends to all agencies who may be involved with a person who has a mental disorder as defined by section 328 of the Act. This includes local authorities, health boards and independent providers of care services. It would be expected that any response to concerns raised about the welfare of a mentally disordered person would be approached on a multi-agency basis, in line with locally agreed vulnerable adult protection guidelines and protocols.
03 Local authorities, health boards and independent agencies commissioned by them, all aspire to working with persons with mental disorder according to professional values and principles that ensure respect for individual autonomy and rights to self-determination. The pursuit of these aspirations should be balanced against these agencies' responsibilities to ensure that the person's rights to protection and the promotion of health and well being are also supported.
Best Practice Points
Non-consensual sexual acts (section 311)
04 Section 311 sets down the offence with which a person might be charged where that person engages in a non-consensual sexual act with a person who has a mental disorder.
05 Where there are concerns about the possibility of an inappropriate sexual relationship, these should be reported in line with locally agreed multi-agency procedures and a multi-agency assessment of the nature of the relationship taken forward. This would entail a meeting of all persons involved in the care of the person as well as the police to allow full information sharing and the issue of consent to be discussed; no assumptions should be made in the consideration of this matter. Local authorities and health boards will have protection procedures in place and recourse to these should be made available to all external providers from whom services are commissioned.
06 While respecting a mentally disordered person's rights to autonomy and self-determination, agency staff involved in the care of the person have a responsibility in accordance with locally agreed procedures and service agreements to report any concerns regarding relationships the person may have, particularly if exploitation or abuse is suspected.
07 Experience of the dynamics of the investigation of sexual abuse shows that allegations are often withdrawn if the person making the allegation is left unsupported through the assessment process. Agency staff should ensure that disclosures are recorded and acted upon promptly and, if necessary, interim protection measures taken, until the outcome of the investigation is known bearing in mind that no action should be taken which might compromise any future criminal investigation. If the level of risk is such that immediate action is required which cannot be achieved on a voluntary basis, it would be expected that legal advice would be sought to determine whether there are any statutory powers which required to be invoked.
08 Everyone who is involved in the assessment, care and/or treatment of the person, along with any other key people involved with the person, should be consulted and involved in the assessment and decision-making process. In the case of a person who is subject to compulsory powers under the Act, this would include all those with a statutory role in relation to the delivery of the person's care plan. ( e.g. the RMO, the designated MHO, CPNs, other health and social care staff, and representatives of independent providers of services to the person).
09 Taking into account the nature of the concerns, it may be appropriate to consider the involvement of family and/or carers. The representation of an independent advocate in terms of section 259(1) may also be helpful to the person. Where it is clear that consent is an issue a multi-agency case conference should be convened and the police involved. It should be borne in mind that local authorities have a duty to assess need, to provide services and to protect, regardless of whether criminal behaviour has been established in accordance with a criminal standard of proof.
10 The Act supports statutory intervention in such scenarios through the local authority's duty to inquire into a mentally disordered person's case under section 33. Section 34 ensures the co-operation of key agencies in such inquires, supported by a warrant under section 35 if necessary. These powers apply in relation to anyone with a mental disorder over the age of 16, regardless of whether or not he/she is subject to compulsory powers under the Act. (For further information on these sections refer to Chapter 15 of Volume 1 of this Code of Practice.)
11 It should be noted that an offence under section 311(1) is a sexual offence for the purposes of Part 2 of the Sexual Offences Act 2003. Accordingly, a person becomes subject to the notification provisions of that Act (or "sex offender registration" as the requirements are sometimes known) if convicted of this offence or is found not guilty by reason of insanity.
Persons providing care services: sexual offences (section 313)
12 Section 313 sets down the offences with which a person might be charged where that person has a caring or professional relationship (as defined by section 313(2)) with a mentally disordered person and engages in a sexual act with him/her.
13 It would be expected that allegations involving persons defined by section 313(2) would be approached in the manner described in paragraphs 4 to 10 above. The police should be involved in all such cases in accordance with established vulnerable adults protection guidelines. Respective agencies' staff disciplinary codes will provide guidance regarding options for the deployment of the member of staff concerned during the investigation, but it would be expected that such a serious allegation would result in immediate suspension from duty until the investigation process had been concluded. During the investigation the primary focus and concern should always be the welfare of the mentally disordered person and so plans should be put in place to safeguard him/her during the course of the investigation.
14 Where an allegation has been made against a member of staff of an independent provider, the identified person (as agreed and set down in the service agreement between the provider and the contracting agency) should inform the contracting agency and be involved in the investigation process. The Scottish Social Services Council and the Scottish Commission for the Regulation of Care should also be informed where the individual and/or service is registered with them.
15 Where allegations are made against volunteers used by contracting agencies in the provision of services to vulnerable adults, it would be expected that the action taken in response would be the same as that invoked in relation to a member of staff. Health Boards and local authorities retain responsibility for services they commission whether directly or externally provided. It would be expected that, as a result of appropriate contracting arrangements, all independent agencies using volunteers will have comprehensive volunteer policies in place and will comply with disclosure procedures regarding criminal convictions.
16 It should be noted that an offence under section 313(1) is a sexual offence for the purposes of Part 2 of the Sexual Offences Act 2003. Accordingly a person becomes subject to the notification provisions of that Act (or "sex offender registration" as the requirements are sometimes known) if convicted of this offence or is found not guilty by reason of insanity.
Ill-treatment and wilful neglect of a mentally disordered person (section 315)
17 Section 315 sets down the offence with which a person might be charged where that person is a carer (as defined by section 315(1)) and ill-treats or wilfully neglects a mentally disordered person.
18 It would be expected that allegations involving persons defined by section 313(2) would be approached in the manner described in paragraphs 4 to 10 above. Similarly, recourse to a local authority's duty to inquire in terms of section 33 should be considered.
Inducing and assisting absconding etc (section 316)
Obstruction (section 317)
19 Section 316 sets down the offences with which a person might be charged where that person induces or knowingly assists a patient to abscond, or harbours a patient who has absconded. The Mental Health (Care and Treatment) (Scotland) Act 2003 (Modification of Enactments) Order 2005 amended this section to include where the patient is being transferred to or from Scotland by virtue of the regulations made under section 290.
20 Section 317 sets down the offence committed where a person obstructs a person authorised by the Act in the manner described by section 317(1).
21 Where the collusion of anyone involved with the patient is suspected in relation to attempted or actual absconding, or where the functions of an authorised person are deliberately obstructed, the person or persons concerned should be made aware of these provisions and that their behaviour may be regarded as an offence under the Act. In order to avoid any unnecessary exacerbation of the situation this information should be conveyed in as neutral a tone as possible under the circumstances. It should be borne in mind by the professionals involved that the patient's family and/or others involved with the patient may to their mind quite legitimately disagree with their intentions or actions particularly where compulsory powers are being exercised or sought, ( e.g. emergency detention under section 36 or a local authority's duty to inquire under section 33), and their behaviour should be carefully considered in this context.