Human rights legislation Essay
Human rights legislation
UK Citizens now have certain basic human rights which government and public authorities are legally obliged to respect. These became law as part of the Human Rights Act 1998. This Act 1998 gives legal effect in the UK to 16 of the fundamental rights and freedoms contained in the European Convention on Human Rights (ECHR). These rights not only affect matters of life and death like freedom from torture and killing but also affect your rights in everyday life: what you can say and do, your beliefs, your right to a fair trial and many other similar basic entitlements. The rights are not absolute – governments have the power to limit or control them in times of severe need or emergency. There are also responsibilities to respect the rights of others – and not exercise yours in a way which is likely to stop them from being able to exercise theirs. (Human Rights Act, 1998)The evidence from the Estia seminar, suggests that some of the human rights legislation has not yet had much effect on the lives of people with a learning disability, especially in those whose learning disability is more severe (Annette, 2004).
This reflection will focus on the issues surrounding personal relationships, three articles of The Human Rights Act (1998) relate to this: Article 3 – no one shall be subjected to torture or to inhuman or degrading treatment or punishment; Article 8 – Everyone has the right to respect for his private and family life, his home and his correspondence; and Article 12 – Men and women of marriageable age have the right to marry and to found a family, according to the national laws governing the exercise of this right. (Human Rights Act, 1998)FeelingsAll human beings are sexual beings, sexuality is not an optional extra, and everyone has sexual needs, feelings and desires. People are entitled to express their sexuality in different ways, showing respect for self and others.
People with a learning disability should be supported to make informed choices and be allowed the opportunities to exercise their rights and responsibilities in regards to sexual health and personal relationships, which are an integral part of their lives. It is clear through the rest of this reflection that these basic human rights are not being met, therefore it is hoped that the failure to provide opportunities for people with a learning disability will be the subject of legal challenge under the Human Rights Act. Government policy demands that services work towards inclusion for people with a learning disability, meaning that they should have positive, reciprocal relationships, be part of the community and enjoy ordinary life. I also believe that enabling people with a learning disability to enjoy a full range of relationships is one of the keys to empowerment. I understand the need to protect people who may be vulnerable, but I think there is a fine line between protection and avoidance, and at the moment the majority of staff are avoiding the issues surrounding sexualty.
EvaluationIt is still relatively unusual for people to accept that people with a learning disability have ordinary sexual feelings and desires, let alone should be allowed to act on them. They are seldom given encouragement, opportunity or the necessary privacy to develop intimate sexual relationships. (Annette, 2004)When discussing issues such as parenting, sex, and also homosexuality, all of which may be regarded as positive, emphasis is often placed on possible negative implications. For example, in relation to parenting, despite evidence that people with a learning disability can develop parenting skills, and many have been excellent parents, it is frequently seen as something that should be avoided, and if pregnancy does occur, it is likely to result in the child being removed. (Paul, 2007)
Likewise, in relation to homosexuality, these relationships are even less well tolerated and are generally perceived not only as ‘inappropriate’ behaviour, but also often as ‘abusive’ sexual behaviour and as challenging behaviour (Annette, 2004). The focus also seems to be on concern about vulnerability of men with a learning disability engaging in same sex relationships to such things of abuse and HIV (Paul, 2007). In British society today, homosexual relationships are widely accepted, but this open-mindness has yet to be extended to people with a learning disability. Section 13 of the Criminal Law regulates homosexual acts between me, not women, in Scotland. Under the provision of Section 13, homosexual acts are legal if: the parties consent, the parties are over 18 and the act does not take place in a public place.
Also, in residential care, women’s sexuality sometimes appears to be a matter of simply recognising menstruation, which is monitored and counted, (invading the privacy of the women), preventing pregnancy by putting women on the contraceptive pill. In such circumstances, it is hard to see that the human rights of these women, to private lives, to marry and to found familes are being respected. A study carried out by the Judith Trust studied 11 women who lived in a longstay hospital and followed them through the ‘community care’ act, however only 3 made it to independent community.
Out of these 3, one of the ladies did have an ongoing sexual relationship with her boyfriend, yet she was not invited to her case conference determining her future and included discussions about her relationship. She was lucky that as decision was made on pragmatic grounds that she should be enabled to continue to see and relate to her boyfriend. This is a unique case, intimate relationships are rarely part of a decision to move someone to another residence or of decisions about how they are best be cared for, whereas for most of us such intimate and family relationships are key to these decisions. (Annette, 2004) Ungendered life is very atypical, living with people of the opposite sex who are neither family, friends or lovers is a very unusual arrangement.
People with a learning disability have the same rights in law as anyone else to marry or live together providing the person is over 16years and has a general understanding of what it means to get married, he or she has the legal capacity to consent to marriage. No one else’s consent is ever required. The district registrar can refuse to authorise a marriage taking place if he or she believes one of the parties does not have a mental capacity to consent, but the level of learning disability has to very high before the District Registrar will do so.
AnalysisLearning about sexuality is a life long and often haphazard process, learning from parents, school, television and magazines, most of which are inaccessible to people who have a learning disability. It is often the case that people with a learning disability only get a very negative form of sex education, for example ‘Don’t do that, it’s not nice’, and ‘Stop touching yourself down there, that’s bad’. (Making Choices, Keeping Safe, 2004)
Not giving them any positive format or sensible sex education does not mean that they won’t pick up enticing ideas, but they need more sex education than most young people in order to protect them from people who might exploit them. Ignorance is definitely not bliss, not knowing how to behave or the consequence of sexual activity, not knowing the difference between public and private behaviour, or teaching them that it is ok to say ‘no’, leaves people with a learning disability very vulnerable to getting into trouble, to abuse or exploitation. Proper sex education is therefore a particular important factor in not only helping them to have appropriate relationships but in helping them to protect themselves from abuse.
Consent is crucial in deciding whether a particular sexual relationship or act is abusive. There are some individuals with a learning disability who would not be considered as being able to give consent and lack capacity. The Adults with Incapacity (Scotland) Act 2000 is now the most significant piece of legislation in the protection of vulnerable adults. It is concerned with adults who are defined as being incapable of acting, making decisions, communicating decisions, understanding decisions, by reason of mental disorder or physical illness’ (Adults with Incapacity Act, 2000). In considering consent, Kennedy and Niederbuhl (2001) asked 305 American psychologists about the most important issues to assess when considering consent to a sexual relationship. They came up with three main issues: 1. basic sexual knowledge, 2. knowledge of the consequences of sexual behaviour and 3. abilities in self-protection. (Gates, 2007) These 3 issues could be used as a guide as to develop information around and also to guide those involved in decisions around consent.
ConclusionAll people with a learning disability have the right to enjoy a full range of relationships and to choose to express their sexuality at a variety of levels. They also have the right to be protected from any situation where they are vulnerable to exploitation and at risk of physical, sexual or emotional abuse. However, The sexuality of people with a learning disability raises questions and sometimes dilemmas, on the one hand we wish to secure freedom and choice for them; but at the same time we have a duty to protect them from exploitation or abuse. However, the principle of ‘normalisation’ emphasises the intergration of people with learning disabilities in society.
This increases their presence in the community, which in turn gives them the chance to exercise their right to make choices regarding their sexuality. (Savarimuthio & Bunnel, 2003) I therefore think that information is key to what is required for anyone to participate meaningfully as an adult in any intimate role. However, most carers would rather ignore the issue of sexuality until such a time as a problem arose. Therefore staff need to better informed and training given to the service providers.
All people with a learning disability should be given appropriate information in the most accessible format related to the understanding of the individual. It should be available in a range of formats including written material, audio, pictures, and symbols etc.
Annette, L. 2004. Human Rights and the failure of policy to deliver: Women with learning disabilities and mental health needs. Tizard Learning disability ReviewGates, B. (ed) 2007. Learning Disabilities Toward Inclusion. (5th Ed) Elseevier, Edinburgh.
Human Rights Act 1998 (Retrieved 25th November 2007) http://www.england-legislation.hmso.gov.uk/acts/acts1998/ukpga_19980042_en_1#pb1-l1g1Making choices, keeping safe. 2004Paul, W. 2007. ‘I count myself as normal, well, not normal, but normal enough’. Men with a learning disability tell their stories about Sexualty and Sexual Identity. Tizard Learning Disabilty ReviewSavarimuthio, D,. & Bunnell, T. (2003). Sexuality and Learning Disabilities. Nursing Standard. 17, 39, 33-35.