INTELLECTUAL DISABILITY AND THE LAW IN 21st CENTURY IRELAND: SOME PRACTICAL CASES TO CONSIDER

by Donal Fitzsimons, Manager of Disability Services, HSE Mid-Leinster–Midlands Area

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When you or I offend and break the law in Ireland we can expect the full rigors of that law, with all its sanctions apportioned. We expect the law to deal with us in a fair and balanced way and if we are found guilty we must pay for the crime. However, if you have an intellectual disability and you break the law you may have a very different experience. For the most part, people with intellectual disability who offend often are viewed as ‘special’ and are deemed as requiring ‘special services’ as a means to having sanctions imposed. The responsibility for this area seems to lie with the ‘professionals’ in disability services who are regarded as the ‘experts in the field’, who know how to deal with the issues. With or without an intellectual disability, the crimes are the same and these include sexual offences, manslaughter, petty crime, stealing, arson etc. The professionals involved with the person with an intellectual disability are regarded as having ‘a duty of care’ to that person, and also a ‘duty of care to protect the community’ from the offender. This can leave the professionals in disability services in a quandary.

The implications of this situation become evident when considering the life of James.

Case 1, James

James is in his thirties now and a decade ago he was allegedly involved in a very serious sexual offence against a minor. Under questioning, James admitted to the offence, yet we know that many people with intellectual disability acquiesce to what they think the interviewer wants to hear. James has a significant intellectual disability. He was deemed by the psychiatrist as ‘unfit to plead’ and therefore this case could not be sent forward for trial. A decade later, the saga continues. James lives in the family home with his parents and other extended family. The family are regarded as ‘dysfunctional’ by services and are deemed to ‘lack capacity’ in terms of looking after a son with intellectual disability. Experts now regard James as someone who continues ‘hunting’ for potential victims. If this is true, then members of the public are at risk.

James and his family continue periodically to attend court, where different tactics are bandied over and back by the legal teams. The latest plan is that he should be sent forward to the Central Mental Hospital (CMH) for an ‘assessment’ to determine the level of risk he poses to the community and his potential risk of reoffending. Following the judge’s ruling that he should transfer to the CMH, an appeal was lodged by the defence team. The ruling that James should be detained in the CMH in Dundrum for assessment is on hold for at least six months.

James remains living in his community with an ‘ad hoc’ arrangement in place, where disability services are monitoring him and his family from a distance. This is the same arrangement that was in place since the alleged serious crime took place a decade ago. There are many professionals advocating for an out-of-home placement in a community group home within his locality, citing ‘protecting others, risk and reoffending’ as causes for real concern. If James is such a danger, the ‘solution’ of moving him to a group home would impose a risk to his housemates there. Is that fair on them? The reality is that disability services can only ‘offer supports’ that can and are often refused.

There is no mechanism to remove or detain a person unlawfully. The fact also remains that James is innocent until proven otherwise. What happens to people with intellectual disability who interface with the Irish justice system can be varied and random, as we see in Jessica’s story below.

Case 2, Jessica

Jessica is now 28 years old and has been associated with ‘special services’ since her pre-school years. She was regarded as someone who had a moderate intellectual disability, but also was ‘challenging’. She lived life on the fringes of society and spent her days ‘hanging around town’. She refused to attend any of the formal ‘special day services’ provided in the area and her parents had had enough and were ‘no longer able to cope’. Jessica was regarded as ‘complex’ and the professionals at the time advocated for a residential facility where she could be detained and her challenging behaviour ‘treated’—somewhere where she could not steal and assault vulnerable people in her community. After many court appearances, the only solution to the ‘problem’ was an out-of-state placement. Jessica was sent, at enormous expense to taxpayers, to the UK where she could be detained in a secure unit for treatment of her challenging behaviour.

Jessica started a new life in a locked residential facility in the UK, but she yearned to return to her family. After doing her ‘time’ there, she was sent back to Ireland where many disability supports were offered, but were later declined. Jessica’s offending behaviour continued and she quickly ended up in prison in Ireland. Prison services advocated for a more appropriate service for her and it was quickly realised how vulnerable she actually was in that setting. She was transferred to the Central Mental Hospital (CMH), where all she asked for was to have a television in her ‘cell’.

Years later, Jessica has her time done in the various state institutions, both abroad and in Ireland. She is now back living in her native county, with her family. She has also acquired the label of having a mental illness as well as intellectual disability and challenging behaviour. She is receiving medication for the mental illness and is reported by her family to be doing very well. Jessica never thought of herself as a person with an intellectual disability. She has asked disability services to ‘stay away’, because she still does not want to be associated with them. Despite Jessica’s refusal of intellectual disability supports, the questions remain: does she receive the supports she requires to stay out of trouble and maintain a healthy, productive lifestyle, or is there a real and avoidable risk that she will lapse and end up back in state care?

While James and Jessica are examples of people with intellectual disability who are thought to have committed crimes, Jeremiah’s only crime was the vulnerability imposed upon him by his intellectual disability, as we see in case 3:

Case 3, Jeremiah

Jeremiah is now in his early forties. A man with a severe intellectual disability, he was regarded as very lucky because he had a family who loved and cared for him at home. Jeremiah only spoke short utterances, but he possessed enough speech to enable him to make a formal complaint to the Gardaí that he was being sexually abused by a family member in his own home. Not surprisingly, what emerged was a family who were split, undecided and in denial that such an alleged crime could have happened. It became exceedingly difficult for everyone involved. On the one hand, professionals dealing with the family were being told by the family, ‘You have a duty of care to protect vulnerable adults.’ Yet on the other hand, they said: ‘You don’t have the right to intervene and is no legislation to back you up.’ Some family members were angry: ‘Don’t ever come back here.’ ‘Have you no morals?’ Both sides of the conflicted family were looking to the HSE to provide answers, but answers that could satisfy neither side.

Jeremiah was taken from his home and placed in a community house where he receives the support that he requires. It is reported by the service provider that Jeremiah is happy and safe. There was no legal protection for the professionals working with Jeremiah in removing him from the home and there were many lengthy discussions, with legal people stating that they didn’t have the right to do so. However, in the absence of any protection to safeguard the professionals, ‘common sense’ prevailed. Jeremiah is under regular review and hopefully his life will continue to improve.

Gleanings from the three cases outlined illustrate that people with intellectual disability cannot always rely on their civil rights being upheld. They face the double jeopardy of not only having to cope with life and the restrictions imposed by their intellectual disability, but also the increased vulnerability of the risk of being led into crime, or being the victim themselves.

Professionals advocating on behalf of people with intellectual disability who face court proceedings should, ideally, present REAL time assessments of support needs. Good information makes for good decisions. The judges endeavour to ensure a safe and just society for all, but they can be at a loss to know the best course of action. All too often, because the person is known to have an intellectual disability, there are huge files itemising their difficulties, frequently from their early childhood. This dated information can be unhelpful and negative. REAL TIME assessment of current support needs can feature as part of the solution. Just as you and I are lifelong learners, so too are people with intellectual disability who possess a capacity to learn from mistakes and forge ahead. In order to do so, they may require supports.

Creativity is required in order to structure supports that respond to the varied and complex situations that arise. This will require out-of-hours flexibility—on weekends and after 5.30pm. Traditional ‘off the shelf’ service models may require a makeover in order to build in flexibility and a capacity for swift and timely responses. Not to do so would perpetuate the double jeopardy and fall off the grid of true person centeredness.

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