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Victims and Witnesses who have Mental Health Issues and/or Learning Disabilities - Prosecution Guidance

Introduction

This guidance deals with people who have mental health issues and/or learning disabilities and who are victims of, or witnesses to, crimes. There is separate CPS Legal Guidance for Mentally Disordered Offenders.

This guidance should be read in conjunction with the CPS public policy statements - 'Supporting Victims and Witnesses who have Mental Health Issues' and 'Supporting Victims and Witnesses who have Learning Disabilities'.

This document provides additional detail in certain key areas of the public policy statements to assist prosecutors when they review or prosecute cases involving victims and witnesses with mental health issues or learning disabilities.

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Mental health issues

Terminology for mental health can vary across different organisations. For the purposes of the public policy statement and this Guidance the term 'people with mental health issues' is used. This is an intentionally broad definition. It combines the commonly recognised term 'mental health problems' with the preference of many people with mental ill health to avoid the use of the word 'problem' and substituting that word with 'issue/s'.

Mental health issues are a very common part of life and one in four people will experience them at some point in their lives (Office for National Statistics (2001); Psychiatric Morbidity Report). Mental health issues cover a range of conditions, including, but not restricted to, depression, anxiety, panic attacks, obsessive-compulsive disorder, phobias, schizophrenia, bipolar disorder (manic depression) and personality disorders. Within this phrase we include people who have a mental health diagnosis (who may or may not use mental health services) as well as people who have not been diagnosed clinically but consider themselves to have mental health needs.

While mental health issues are very common, they are also some of the least understood conditions in society. Around nine out of ten people with mental health issues have experienced stigma and discrimination in their lives (Time to Change (2008): Stigma Shout; Service user and carer experiences of stigma and discrimination).

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Learning disabilities

The World Health Organisation defines learning disabilities as 'a state of arrested or incomplete development of mind'. Somebody with a learning disability is said also to have 'significant impairment of intellectual functioning' and 'significant impairment of adaptive/social functioning'.

A learning disability may be mild, moderate or severe and affects the way someone learns and communicates. It results in a reduced ability to learn new skills, understand complex information or live independently. Learning disabilities have a lasting effect on development socially and educationally, and can often be combined with physical conditions such as reduced functional skills.

According to Mencap 1.5 million people in the UK have a learning disability. There are many different causes of learning disability and often it is not possible to say why someone has a learning disability. Most learning disabilities are caused by the way the brain develops - before, during or soon after birth. It is a life-long condition.

Learning difficulties is the term more commonly used to cover specific problems with learning in children that might arise as a result of a number of different factors, e.g. medical or emotional issues or language impairment. This is a much larger sub-group of the population and the term tends to be used in education circles.

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People, not 'labels'

The terms 'mental health issues' and 'learning disabilities' cover people with a wide range of experiences, conditions and support needs. It is not possible to generalise about the experience of people who come within these categories, or what support people may need to remain with a case through the court process. However, training and awareness of the differences as well as the similarities will help in understanding how to approach working with people in an appropriate, tailored way. A person may have both learning disabilities and mental health issues; there may need to a combination of adjustments required to enable them to participate in the court process.

Importantly, people with mental health issues and/or learning disabilities are people first, rather than the label that 'defines' them.

Where relevant, cross-reference should be made with other CPS Policies and Guidance (for example, where the case involves issues of disability, racist or religious hate crime, homophobic or transphobic hate crime, crimes against older people or domestic violence) and with other existing CPS commitments, such as those contained in the Code of Practice for Victims of Crime 

Reasons for having policies for victims and witnesses who have mental health issues and/or learning disabilities

The need for public policy statements is based on a number of factors including:

  • section 146 of the Criminal Justice Act 2003, which imposes a duty on the courts to increase the sentence for any offence aggravated by hostility based on the victim's disability or presumed disability;
  • our commitment fully to comply with the Disability Equality Duty (under the Disability Discrimination Act 2005) by proactively promoting disability equality;
  • the legal guidance on CPS commitments to victims and witnesses;
  • the report from the House of Commons, Justice Committee- Ninth Report, The Crown Prosecution Service: Gatekeeper of the Criminal Justice System (2009), which expressed concern 'at the suggestion that the CPS may be reluctant to recognise that people with mental health problems can be credible witnesses at all.'

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Relevance of mental health issues and/or learning disabilities to case review and management

The needs and case management issues of a victim or witness with mental health issues and/or learning disabilities should be assessed on an individual basis. Reliance should not be placed on pre-conceived or stereotypical notions and assumptions about people who have mental health issues and/or learning disabilities in general. The relevance - or otherwise - of the mental health issue or learning disability of a victim or witness should always be considered. However, having some degree of background information may be useful to ensure that appropriate consideration is given to relevant issues in the case, and to ensure that any support needs of the victim and/or witness are identified at an early stage and addressed.

Some criminal offences require the prosecution to prove that the victim has a 'mental disorder', e.g. sexual offences committed by care workers against people with a mental disorder.

In many other cases, the prosecution will not have to prove as part of their case that a victim or witness has mental health issues and/or a learning disability. That does not mean that the prosecutor should disregard the fact, or treat it as unimportant. It should mean that a prosecutor is alerted to a range of additional factors that may need to be investigated further, such as the need for supporting evidence, the potential need for special measures, or that the victim or witness may need other support throughout the case, such as the involvement of a specialist advocate or supporter. This is an issue of case management as opposed to a casework decision.

There is a diversity of circumstances for people with mental health issues and/or learning disabilities. Some will take the view that they are not vulnerable or in need of any additional support. That is why prosecutors must treat all victims and witnesses (including those who have mental health issues and/or learning disabilities) as individuals and must make case decisions based on hard information and not assumptions.

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Abuse, criminal offences and hate crime

There is no offence of simple 'neglect' of a person with mental health issues and/or learning disabilities other than in those circumstances set out in the Mental Capacity Act 2005 or the Mental Health Act 1983.

However, the term 'abuse' is used to describe a wide range of behaviours, many of which can amount to criminal offences. Section 2 of 'No Secrets' (available at http://www.dh.gov.uk/prod_consum_dh/groups/dh_digitalassets/@dh/@en/documents/digitalasset/dh_4074540.pdf) gives a helpful overview of these issues. 'No Secrets' is the Department of Health's Guidance on developing and implementing multi-agency policies and procedures to protect vulnerable adults from abuse. 'In Safe Hands: Implementing Adult Protection Procedures in Wales' is the equivalent guidance published by the National Assembly for Wales (available at http://new.wales.gov.uk/topics/health/publications/socialcare/reports/insafehands?lang=en).

Prosecutors will be mainly concerned with criminal offences and hate crimes. It is key that prosecutors are aware of some of the issues involved where crimes are committed in a context of abuse. Victims and/or witnesses may be fearful of attending court as a witness because of intimidation. They may be fearful of the possible consequences such as losing their placement or home and support networks. Prosecutors should explore the type of support that might be necessary to help the victim or witness stay with the court process.

Where a prosecutor considers that the abusive behaviour brought to their attention does not amount to a criminal offence, or to a criminal offence that can be prosecuted by the CPS, it may still be appropriate to ensure that the matter is brought to the attention of other regulatory or disciplinary bodies. This may allow for proceedings to be instituted by, for example, the Health and Safety Executive or the Care Quality Commission, or other steps to be taken to protect the vulnerable adult and to hold the abuser to account.

When considering the evidence in a case involving a crime against a person with mental health issues and/or learning disabilities, prosecutors should be alive to the possibility that the perpetrator may be motivated by hostility towards that person because of his/her prejudicial attitudes towards people with mental health issues and/or learning disabilities generally as well as because of their perceived or actual vulnerability. In such cases, the fact that the person with mental health issues and/or learning disabilities is in a vulnerable situation may not be the sole cause of, or reason for, victimisation, but it may provide the opportunity for the offender to manifest his/her prejudice and hostility.

This element of hostility or prejudice should be fully explored. Where it is possible to show its existence, the victim and/or their family can benefit from the enhanced service from the criminal justice system that this type of case warrants (for example, the Direct Communication with Victims meeting). In addition, the court may sentence appropriately and send the message that such hostility is not to be tolerated.

More information about prosecuting Disability Hate Crime can be found in the Legal Guidance.  

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Victim And Witness Care And Support

Support

Some people who have mental health issues and/or learning disabilities who are victims of, or witnesses to, criminal offences may be reluctant to report the crime, because they fear the consequences of reporting.

For example, they may think that they will be deemed to be unreliable witnesses because they have mental health issues and/or learning disabilities; that they will not be taken seriously; that they may be victimised. They may be in a care setting and fear for their future safety or security. They may be embarrassed, or afraid that their personal medical history will become public knowledge. They may simply be fearful of the court process. Any of these, or other, factors may prevent a crime being reported, or a witness coming forward.

Through the way in which we review and handle the case, we must try to ensure that a person with mental health issues and/or learning disabilities has the confidence, knowledge and support to enable the necessary action to be taken to prevent further offences and to hold the offender accountable.

We should treat each person as an individual, and, within the necessary constraints of criminal justice system procedures, enable people to maintain the maximum possible level of independence, choice and control.

For example, where a victim or witness is accompanied by a carer or advocate or intermediary, we should take care to address remarks to the victim or witness rather than to the person accompanying them. It is inappropriate to assume that, because someone needs a support worker with them, they are unable to understand questions or participate in discussions.

'Achieving Best Evidence in Criminal Proceedings: Guidance on Interviewing Victims and Witnesses, and Using Special Measures' (available at http://www.justice.gov.uk/guidance/docs/achieving-best-evidence-criminal-proceedings.pdf) gives guidance on good practice when interviewing witnesses, including victims, in order for them to give their best evidence in criminal proceedings.

To help prosecutors making decisions in cases involving victims and witnesses with mental health issues and/or learning disabilities, we have developed an 'aide-mmoire' to focus attention on particular aspects of case management and practice that may be relevant in such cases. It provides a number of prompts for prosecutors to enable them to provide or facilitate appropriate and effective support. Prosecutors may find this useful and might want to add to it or amend it in light of experience gained over time. A copy is at Annex A.

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Meeting witnesses

We have commitments to meet victims in a number of our published policies: 

  • Direct communication with victims; 
  • Core Quality Standards; 
  • Early Special Measures meetings.

Prosecutors may also consider that a pre-trial witness interview with a witness (who may also be a victim) may be useful in making casework decisions in a particular case - see Pre-Trial Witness Interviews below and in the Legal Guidance.

Prosecutors at court will meet victims and witnesses on a regular basis, and have duties under the Prosecutors' Pledge Core Quality Standards, the Code of Practice for Victims of Crime and the Witness Charter to, wherever possible, introduce themselves at court and answer any questions that a victim or witness may have.

Assessing needs

The support needs of a victim or witness should be considered as an integral part of the decision making process. For example, prompt consideration of whether (and which) special measures may be required.

Prosecutors should actively seek information via the police, or the Witness Care Officer about a victim or witness' support needs, either if mental health issues or learning disabilities are raised directly, or if the evidence suggests that a victim or witness may have mental health issues and/or learning disabilities. Information may come from a range of sources, but victims and witnesses have the right to expect to be consulted personally about their own capacity to give evidence. For those who are unable to self-advocate, prosecutors should seek the intervention of an independent self advocate supporter to ensure that the witness is involved in decision-making.

It is the investigating police officer's role to seek information from the witness and, with the witness's consent, from friends or family and medical or other professionals. This information is extremely sensitive and care should be taken to ensure that the information is handled appropriately and sensitively.

When considering information gathered by the investigating police officer from third parties, prosecutors should not take their objectivity for granted. Prosecutors should be aware that family and support workers may have their own interests or subjective judgements of the individual's reliability and capacity to give evidence, or even to handle the court process (and, potentially, the impact that this might have on their own time). While this could be useful information it should be weighed sensitively.

Prosecutors should ask themselves 'What support can we offer this witness to ensure that they are able to give their best evidence?' The support should take into account any views expressed by the witness.

Support can range from legislative support (special measures) to practical support such as: 

  • the prosecutor knowing about the effect of medication on a witness so that it can be taken into account when asking the court to fix a time and date for the trial; 
  • asking the judge or magistrates to allow witnesses to take regular comfort breaks; 
  • asking the judge or magistrates to allow a supporter or carer to accompany the witness.

Independent self advocacy supporters may also make the experience of attending court less stressful for witnesses and can be a valuable source of support for the witness.

"Advocacy is taking action to help people say what they want, secure their rights, represent their interests and obtain services they need. Advocates and advocacy schemes work in partnership with the people they support and take their side. Advocacy promotes social inclusion, equality and social justice." - The Advocacy Charter (2002).

Information about advocacy and advocates in this context can be found at Annex C.

Children with mental health issues and/or learning disabilities who are victims or witnesses may have additional and potentially more complex support needs. The comprehensive guidance, 'Safeguarding Children: Children as victims and witnesses' should be followed as well as this guidance in such circumstances.

The Victim Personal Statement (VPS)

A victim may, if he or she wishes, make a Victim Personal Statement (VPS) explaining how the crime has affected him/her, emotionally, physically or financially. The VPS may also be used for a victim to express concerns about issues such as bail, the fear of intimidation, or the need for special measures.

Provisions relating to the making of a Victim Personal Statement (VPS) and its use in criminal proceedings are included in the Code of Practice for Victims of Crime (Victims Code), which was published on 29 October 2013 and came into force on 10 December 2013.

The revised CPS commitments in respect of the VPS apply to those cases submitted to the CPS on or after 10 December 2013.

In addition to the entitlement to make a VPS, victims are also entitled to say whether they would like to read their VPS aloud or whether they would like it to be played (if recorded) or read aloud for them (usually by the CPS prosecutor) - Chapter 2 Part A paragraph 1.12.

More information about VPS is available in the Legal Guidance.

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Case Review

Case-building

Where a victim or witness is unable to give evidence even with special measures or enhanced support, prosecutors should look for evidence other than theirs so that, in appropriate cases and where possible, the case may proceed without relying on their evidence.

This may involve seeking information or evidence from other agencies, for example, Social Services, NHS, specialist charities supporting people with mental health issues or learning disabilities or the Care Quality Commission.

Care plans, visitor records or medication records may provide useful sources of information or evidence to enable the case to proceed.

Prosecutors should be pro-active in seeking information from the police to identify properly any aggravating features. This may include looking at previously reported incidents involving the same victim or suspect.

Prosecutors will want to be aware of any other investigations or proceedings pending or concurrent, in which other agencies may be involved, for example, the Health and Safety Executive, Local Authority or the Care Quality Commission.

In cases where the victim and the offender are in the same residential care setting it will be good practice for the prosecutor to make enquiries about arrangements for their care during the course of proceedings. The information may help to inform decisions about bail conditions, for example, to avoid the potential for witness intimidation.

If the incident occurred in a residential care setting the police should be advised to ensure that any material generated in other investigations (e.g. disciplinary) should be retained for disclosure purposes. In assessing the public interest in pursuing investigation and prosecution, the fact that internal sanctions have been or will be applied must not be assumed to be sufficient to meet the justice of the case.

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The Code for Crown Prosecutors

In the Code, the examples given of common public interest factors in favour of prosecution include the vulnerability of the victim.  This includes where the position of trust or authority exists between the suspect and the victim.  Prosecutors must have regard to whether the offence was motivated by any form of discrimination (paragraph 4.12c). Breach of trust implies reliance upon the integrity of a person when providing a service or carrying out a task entrusted to them. Betrayal of trust or abuse of authority in the context of people with mental health issues and/or learning disabilities could therefore include a wide range of service providers, such as, cleaners, council contractors, carers, tradesmen etc.

Offences motivated by discrimination based on disability (which would include mental ill health and/or learning disabilities) or where the defendant demonstrated hostility towards the victim based on mental ill health and/or learning disabilities should be considered under this category.

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Distinguishing mental capacity from competence of the witness

It is important to recognise that the competence of a witness is a separate issue to that of the mental capacity of a witness. A person's capacity to take decisions may be affected by, for example, a stroke or brain injury; a mental health issue; dementia; a learning disability; or alcohol or substance misuse.

However, having a mental illness, having mental health issues or having a learning disability does not mean that a person lacks capacity to take all decisions. And capacity can vary over time, even over the course of a day. This is particularly the case for people with mental health issues, whose effects can be fluctuating in nature.

The Mental Capacity Act 2005 and its Code of Practice allow for certain people to decide whether or not an individual has capacity to take a particular decision. Anyone can take on that role: for example, a family member, a care worker, a nurse or social worker. However, health and social care practitioners or other relevant professionals and experts must be involved when an assessment and/or decision has significant consequences. These include when the person's capacity may be challenged by someone; when reporting abuse or a crime; or where the decision has legal complications or consequences.

The Youth Justice and Criminal Evidence Act 1999 sets out the general rule that people are competent to act as witnesses unless they cannot understand questions asked of them at court and answer them in a manner which can be understood (with, if necessary, the assistance of special measures).

Prosecutors and police should discuss, at an early stage, whether the witness is likely to be accepted as a competent witness by the courts, taking into account information provided by the victim or witness themselves as well as others, for example, a doctor, family members, or a social worker etc.

The assistance of an intermediary (one of the available special measures) may be an effective method to help a witness to understand the questions being asked, and to answer them in a way that can be understood. Detailed guidance on the use of intermediaries is available in the Legal Guidance.

Mental capacity is only relevant to the competence of the witness in terms of assessing the witness's ability to understand questions asked and to give replies that can be understood. For people with mental health issues the clarity of their evidence could be affected by distress, anxiety or panic which is not relevant to the question of capacity.

Medication issues may be relevant when considering the timing of giving evidence and the need for maximum lucidity. This factor may be equally relevant to any witness taking medication, whether mental capacity is an issue or not.

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Relevance of competence to admissibility

In R v Sed (Ali Dahir) [2004] EWCA Crim 1294, the Court of Appeal held that competence was not a criterion for admissibility of a hearsay statement under section 23 of the Criminal Justice Act 1988 Act; it was a factor for consideration under section 26 of the Act when deciding if it was in the interests of justice to admit it: R v D (Video Testimony) [2002] EWCA Crim 990 followed.

The court held that competency test under section 53 of the Youth Justice and Criminal Evidence Act 1999 did not require a person to understand all questions or give understandable answers to all questions. It was sufficient if there was an intelligible thread in responses to questions, even if patchy, which could be evaluated for cogency and reliability by the jury.

The court said that the alleged vulnerable victim also had a right to justice and it was part of the process of justice that her voice should be heard. The complainant in this case was an 81 year old woman with Alzheimer's disease.

In DPP v R [2007] EWHC 1842 Admin, the court held that it was correct, when determining whether a witness was competent, to consider competence at the time of the interview and at the time when the witness was called upon to give evidence, where the evidence in chief was given via a video recording under the provisions of section 19 of the Youth and Criminal Evidence Act 1999. The fact that a witness now had no independent recollection of the facts, such that he/she was unable to give intelligible answers did not mean that he/she was no longer competent.

The court also held that where a video interview was already in evidence it could not be retrospectively un-admitted and that where it had been admitted pursuant to a perfectly proper special measures application under section 27 of the 1999 Act, it did not need consideration as hearsay evidence. The video interview was admissible independently of any question of hearsay under the quite separate provisions for special measures.

In the case of supervening loss of memory, as distinct from supervening loss of competence, the court found that sections 139 and 120 of the Criminal Justice Act 2003 would also apply, and the video interview would be admissible as evidence of its contents as a means of refreshing the memory of the witness who had forgotten. The court did not determine whether sections 139 and 120 had any application in the event of supervening incompetence.

Where the video recorded interview was admissible for all those various reasons, and independently of section 114, it did not mean that the video had to be accepted at face value. On the contrary, the assessment of it was a matter for the trial court.

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Credibility and reliability

The evidential stage of the Full Code Test in the Code for Crown Prosecutors, paragraph 4, requires the prosecutor to consider whether the evidence can be used and is reliable.

The starting point for prosecutors should be that a witness is credible and reliable. Credibility or reliability should only be questioned in the same circumstances as for any other witness, that is, when something specific is raised which calls into question the credibility or reliability of the witness.

If the prosecutor has good reason to be concerned about the credibility or reliability of a witness, the prosecutor should seek further information, which may include professional evidence and opinion from a variety of sources. This could include medical opinion from an appropriate health care professional who has direct knowledge of the witness.

This further information should address how the witness's particular condition might affect their: 

  • ability to recall and accurately interpret events; 
  • quality of short and long term memory; 
  • response to questioning and cross examination; 
  • concentration and attention; 
  • ability to communicate; and 
  • interaction with other people.

In some cases a pre-trial witness interview between the prosecutor and the witness may help the prosecutor come to a decision about the reliability of a witness's evidence.

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Pre-trial witness interviews

Pre-trial witness interviews are conducted by prosecutors for the purpose of assisting the prosecutor to assess the reliability of a witness's evidence or to understand complex evidence.

There can be particular sensitivities in conducting pre-trial witness interviews with vulnerable witnesses. In reaching a decision to hold such a pre-trial interview, prosecutors must give careful consideration to the age and degree of vulnerability of the witness. The prosecutor should also take account of the support needs of the witness at any such interview.

More information on pre-trial witness interviews is available in the Legal Guidance.

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Direct communication with victims

Where prosecutors decide to discontinue a case involving a victim with mental health issues and/or a learning disability, or to make a substantial alteration to the charge, and it has been determined that the offence was aggravated by hostility based upon disability, a meeting to discuss the reasons must be offered to the victim.

More information on direct communication with victims is available in the Legal Guidance .

Special measures

Special measures which have particular relevance for people with mental health issues are: 

  • giving evidence in private - particularly where sensitive personal or medical information is being disclosed; 
  • removal of wigs and gowns - which may reduce the risk of a witness becoming anxious, distressed or experiencing feelings of paranoia or panic; 
  • use of intermediaries - to assist with interpreting questions and answers appropriately.

The views of the victim or witness (or, in appropriate cases, their carers) should be taken into account.

Detailed guidance on the use of special measures can be found in the Legal Guidance

Medical records

Victims and witnesses with mental health issues have told us that they have particular concerns about how the prosecution, court and the defence will deal with their medical records. They wanted the CPS to make their policy and guidance clear so that people would know what to expect.

Information about a person's health and treatment for ill health is both private and confidential, and must be handled in a sensitive manner. This stems not only from the confidentiality of the doctor patient relationship but from the nature of the information itself.

The confidentiality of a patient's medical record belongs to the patient. The patient may waive confidentiality and consent to release their medical records. Before inviting a person to consent to release their records, they must be informed of the purpose of the request, and the potential use that may be made of the records.

Consistent with the confidentiality principle and related Article 8 rights, the circumstances in which hospital/medical records relating to a witness's well being or ill health can be released to parties in criminal proceedings in the absence of the witness's consent, are very restricted.

For the purpose of police PACE applications such records are 'excluded material' within the meaning of section 11 PACE. Accordingly such records cannot be obtained under the first set of access conditions in schedule 1. They can only be obtained under the second set of access conditions in schedule 1 if the prosecution can show that some additional statutory power which pre dated PACE would have authorised a judge to order disclosure. As the case law indicates no such powers exists in relation to medical records:

  • R v Central Criminal Court ex p Brown [1992] The Times September 7 (no power to order disclosure of medical reports); 
  • R v Cardiff CC ex p Kellam [1993] The Times May 3 (no power to order disclosure of records of movements of patient under Mental Health Act 1983);
  • R v Singleton [1995] 1 Cr App R 431 (no power to order disclosure of dental records).

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Medical records - the duty of disclosure

It is important that decisions about the obtaining and disclosure of a person's medical history are made at as early a stage as possible, and that such material is handled sensitively.

Prosecutors have a duty to identify any risks to the credibility of a witness and to do all that they can to put in place the necessary support to mitigate such risks so that witnesses can give their best evidence, and so that the prosecutor can rebut effectively any claims by the defence that a witness is unreliable. At the same time, prosecutors also have a duty to meet their obligations under the Criminal Procedure and Investigations Act 1996 [CPIA] to disclose information that undermines the case for the prosecution, or assists the case for the defence.

When reviewing the evidence, a prosecutor may consider that the medical history of a victim or witness may be relevant to the charging decision. If so, where a witness with mental health issues is known to be under medical care, or has been so in the recent past, prosecutors will need to consider whether it is necessary to advise police to seek access to any medical records held by a third party such as a Hospital, Health Care Specialist or General Practitioner.

Do not assume that you have to ask. Decide if the record is, or is likely to be, relevant. Decide if it is appropriate to 'disturb' confidentiality.

If police enquires indicate that there may be material in the records which falls within the CPIA disclosure test, the prosecutor should request the police to secure access to such records having first obtained the witness's informed consent. Such material as falls within the test should then be disclosed to the defence with the witness's informed consent.

Disclosure of medical records will engage the Article 8 right to privacy of the witness. It is crucial that the police obtain appropriate consent to: 

  • gain access to the records; and 
  • enable disclosure, where appropriate, to take place.

When obtaining consent, the victim or witness should be informed why the request is being made and what might happen to the record. The victim or witness has the right to decline consent if he or she so wishes but must also be told about the possible consequences as far as the case outcome is concerned.

There are three potential scenarios relating to the medical records of the victim or witness:

First scenario

The victim or witness gives informed consent allowing the police access to the medical records and service of the records as additional evidence or unused material, as appropriate. See Annex B, table 1 for an illustration of the process.

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Second scenario

The victim or witness gives qualified consent, allowing their medical records to be disclosed to the police and prosecutor but not to the defence. The prosecutor needs to carry out the usual test of relevance, deciding whether the records should form part of the prosecution case or whether they should be disclosed to the defence. If the record is of value to the prosecution case, the prosecutor should inform the victim or witness of his decision and seek consent to use the record as part of the case.

If the victim or witness maintains his/her original position (qualified consent), the prosecutor must decide if the evidence is critical to the success of the prosecution case. If so, the prosecutor may need to consider if the case can proceed further. If the evidence is not critical, the prosecutor should apply the disclosure test, and if necessary, make a PII application to the court.

If the prosecutor thinks that some or all of the records meet the disclosure test and should be disclosed as unused material then the consent of the witness to disclose should once again be sought. If consent is not forthcoming then the prosecutor should make a PII application allowing the witness to make representations to the court as to why the material should not be disclosed. In such a situation, having seen the record, the prosecutor may be able to represent the interests of the victim or witness at the PII hearing. However, it is more likely that the victim or witness will not want the prosecutor to represent his/her interests or the prosecutor may feel that s/he is unable to represent their interests. The victim or witness should be given the opportunity to make oral or written representations, either with or without independent assistance or representation. It is then for the court to determine the public interest issue. See Annex B, table 2.

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Third scenario

The victim or witness does not consent to the release of their medical records. In circumstances where there are reasonable grounds to believe that disclosable material is contained within the medical records, prosecutors will need to consider whether it is necessary to use the witness summons procedure to obtain access to these records. The victim or witness has a right to make representations to the court as to why the records should not be disclosed. In such circumstances, the prosecutor would not usually be able to represent the interests of the victim or witness at the hearing because the prosecutor would be unaware of the content of the records, and their relevance (or otherwise) to the proceedings. See Annex B, table 3.

The courses of action outlined above mean that the prosecutor has some control over what information the defence receives. In many cases, the medical records may be of no evidential consequence. But once received, the prosecutor must review the records applying the statutory disclosure test.

If, applying the test for disclosure, the prosecutor decides that it is necessary to disclose medical records; it is the prosecutor's responsibility to explain this to the victim or witness, so that they understand how the decision was reached. The prosecutor may make a PII application to the court (see above in the second scenario), or the prosecutor may have to decide whether the case can continue. In this situation, the prosecutor must explain to the victim the decision not to proceed.

If the prosecution has decided that the records do not satisfy the test for disclosure, the defence must make an application to the court for disclosure pursuant to section 8 CPIA. In such cases, the prosecution may represent the interests of the victim or witness at that hearing, both in relation to whether the material satisfies the test for disclosure, and, if applicable in respect of PII. However, the victim or witness may wish to make their own representations to the court either with or without independent assistance or representation.

Social Services records

Many of the issues that pertain to medical records will also apply to Social Services records; the same degree of consideration and sensitivity should be used. Some areas have adopted local protocols for social services material. Prosecutors should access and handle material in accordance with local protocols, if they exist.

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Third party material - defence requests for witness summons

Where the defence believe that there is relevant material in the hands of a third party, that is, not in the possession of the prosecution, they may seek a witness summons to require the third party to produce the material. Medical and social services records not in possession of the prosecution will come within the category of third party material.

Where a party applies to the Crown Court for a witness summons under section 2 Criminal Procedure (Attendance of Witnesses) Act 1965 directed against the person having custody or possession of the record, the procedure is governed by Rule 28 Criminal Procedure Rules 2010 (CPR). Rule 28.5 states that notice must be given in writing and that the party making the application must serve the application on the proposed witness (unless the court otherwise directs) and, if the court so directs, the person to whom the proposed evidence relates (the victim or witness) and another party (in these circumstances the CPS).

Procedural fairness in the light of Article 8 requires that notice of the application be given to the witness and that the witness be given an opportunity to be heard (R (TB) v Stafford Crown Court 2006 2 C.A.R. 34). If prosecutors are made aware of a defence application for a summons for a third party to disclose material in their possession, careful thought should be given about the care and treatment of the witness to whom the material relates. In particular, prosecutors should consider how the witness will be notified of the application, their right to be heard and any practical arrangements that the CPS can make to facilitate this.

There may be occasions where the prosecutor cannot represent the interests of the witness relating to issues of disclosure. It may be that the witness does not want the CPS to represent them, or has secured his/her own representation in this regard. It may be that we agree with the defence application, or that we have insufficient information to make any proper representation.

In Article 8 terms, on a defence application in relation to the medical records of a prosecution witness, the court may only order disclosure in breach of the confidentiality attaching to the record if is proportionate, in accordance with the law (meaning the CPR, case law and the 1965 Act) and necessary for the protection of the rights and freedoms of others (meaning the defendant's Article 6 rights to a fair trial).

The judge is required to balance the witness's rights to privacy and confidentiality and the defendant's right to have his defence informed of the content of the witness's medical records.

Rule 28.7 empowers a court to withdraw a summons where the duties or rights, including rights of confidentiality, of the witness outweigh the reasons for the issue of the summons or where the witness was not aware of the application.

More detailed guidance on disclosure issues can be found in the Disclosure Manual.

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Expert evidence

Where the prosecutor wishes to obtain an expert opinion on any aspect of a witness's mental health or learning disability, (either to satisfy themselves about the witness's credibility/reliability or to obtain further information about the nature of their mental health condition or learning disability) it is vital that the expert is provided with all relevant material. This must include as a minimum:

  • copies of every account provided to the police by the witness (whether in statement or DVD format);
  • copies of the prosecution bundle;
  • copies of any defence statement; 
  • copies of any available medical records.

The instructions must focus the expert's attention on the issues in the case and be clear as to the questions to which an answer is requested and as to the opinion which is sought.

Prosecutors should additionally consider holding a conference with the expert where this might assist in the presentation of the issues for resolution or where the expert's opinion is likely to be sought on a series of follow up questions, the formulation of which depend on answers yet to be given by the expert. At the conclusion of such a conference it is essential that the expert be asked to provide a witness statement confirming any relevant opinion or view expressed during the conference.

In every case in which an expert is instructed to comment on a witness's credibility/reliability the following series of questions (as a minimum) must be addressed: 

  • What is the nature and extent of the witness's mental health condition or learning disability? 
  • How do the symptoms of this condition manifest themselves in respect of this particular individual? 
  • Could the nature or extent of the witness's mental health condition or learning disability affect their (a) understanding (b) perception or (c) recollection of an incident? 
  • To what extent would (a), (b) or (c) be affected in comparison to someone without this condition? 
  • If it could affect either (a) (b) or (c) above, in what specific ways might it do so?
  • Could it do so to an extent that might undermine the credibility/reliability of the account they have given in the case? 
  • If so, what is the likelihood of it doing so? Are there any factors which increase or decrease such likelihood? Are there any measures which can be taken by the prosecutor or any other agency to reduce any such likelihood? 
  • How might the nature or extent of the witness's mental health condition or learning disability affect their ability to give evidence and withstand cross-examination, particularly with reference to their response to questioning and cross-examination, concentration and attention, ability to communicate and interaction with other people.

Where the opinion of the expert is that the witness's mental health condition or learning disability does not affect the reliability or credibility of their account then, in the absence of special circumstances (see below) the report: 

  • cannot be served as part of the prosecution case as 'oath helping' or to bolster the witness's credibility/reliability; 
  • will not satisfy the CPIA disclosure test; 
  • may be withheld from the defence.

The defence may seek to challenge the witness's evidence on the grounds that their mental health condition or learning disability makes them unreliable. Similarly they may raise the issue of the witness's competence to give evidence. In these circumstances the report may be served (and the expert called) as rebuttal evidence.

Exceptionally the report, while neutral on the issue of credibility/reliability, might contain factual passages which satisfy the disclosure test. For example, the report might refer to an account of events given by the witness which is inconsistent with his statement. In these circumstances the relevant extract should be separately disclosed to the defence by way of a letter.

Where the opinion of the expert is that the witness's mental health condition or learning disability does or might affect the reliability/credibility of their account then it should be disclosed to the defence as undermining material for the purpose of the CPIA test.

The victim or witness is entitled to know what the report contains and how we propose to use it.

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Sentencing

Disability hate crime

Section 146 Criminal Justice Act 2003 imposes a duty upon courts to increase the sentence for any offence aggravated by hostility based on the victim's disability (or presumed disability). Our Policy and Guidance on Prosecuting cases of Disability Hate Crime explain in detail the procedure in cases to which section 146 applies.

The Sentencing Council's Overarching Principles: Seriousness

The Sentencing Council's 'Overarching Principles: Seriousness' states that a court is required to pass a sentence that is commensurate with the seriousness of the offence. The seriousness is determined by two main factors: the culpability of the offender; and the harm caused or risked being caused by the offence. Culpability will be greater: 'where an offender targets a vulnerable victim (because of their old age or youth, disability or by virtue of what they do' (see paragraph 1.17); factors indicating a more than usually serious degree of harm include the fact that the 'victim is particularly vulnerable' (see paragraph 1.23).

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Ancillary Orders

Where there is a risk of further offences, prosecutors should consider what ancillary orders it may be appropriate to apply for, for example, Anti-Social Behaviour Orders or restraining orders, including restraining orders on acquittal. However, any ancillary order may be relevant and prosecutors will find the 'Ancillary Orders and Powers Prosecutors' Toolkit' a useful resource when considering what, if any, application to make.

In appropriate cases (i.e. when a care worker working in a registered care home or a registered domiciliary care agency or a registered adult placement scheme has been dismissed, transferred or suspended on grounds that they have caused harm or risk of harm to a vulnerable adult), the police should be asked to check that the necessary referral has been made to the Independent Safeguarding Authority to place the person on the barred list.

The list contains the names of care workers who have harmed a vulnerable adult, or placed a vulnerable adult at risk of harm, whether or not in the course of their employment. These people are then banned from working in a care position with vulnerable adults.

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Legislation

In addition to more common criminal statutes with which prosecutors will be fully aware, the following legislation may be relevant: 

  • Section 44 Mental Capacity Act 2005 - wilful neglect or ill-treatment of a person lacking mental capacity; 
  • Section 127 Mental Health Act 1983 - wilful neglect or ill-treatment of a patient; 
  • Sections 135 and 136 Mental Health Act 1983 - removal to a place of safety; 
  • Mental Health Act 1959 - offences pre-dating implementation of the Sexual Offences Act 2003, unlawful sexual intercourse with patients/residents suffering mental disorder; 
  • Corporate Manslaughter and Corporate Homicide Act 2007 - gross breach of duty of care causing a person's death;
    Sections 58 and 63 Medicines Act 1968 - supplying/administering / altering the substance of medicinal products;
    Section 4 Fraud Act 2006 - abuse of position; 
  • Section 5 Domestic Violence, Crime and Victims Act 2004 - causing or allowing the death of a vulnerable adult;
    Health and Safety at Work Act 1974; 
  • Sections 24 and 25 Care Standards Act 2000 - failing to comply with conditions/contravention of regulations; 
  • Safeguarding Vulnerable Groups Act 2006 - created the Independent Safeguarding Authority (ISA) and vetting/barring scheme for those working with children/vulnerable adults. Replaces POVA and POCA schemes; 
  • Public Interest Disclosure Act 1998 - protection for whistleblowers; 
  • National Assistance Act 1948 - removal of a person from their home if suffering chronic disease or unsanitary conditions and not receiving proper care or attention; 
  • Health and Social Care Act 2008 - created a new integrated regulator, the Care Quality Commission, for health and adult social care, bringing together existing health and social regulators into one regulatory body, with powers to ensure safe and high quality services.

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Annexes

Annex A

Aide-memoire to assist prosecutors dealing with cases involving victims and witnesses who have mental health issues and/or learning disabilities

  • Purpose
  • Relationship between the Code and the policy
  • Building a robust case
  • Supporting victims and witnesses
  • Credibility and reliability
  • Medical records and expert evidence
  • Sentencing

Purpose

In August 2009 we published our public policy statements "Supporting victims and witnesses who have mental health issues", and "Supporting victims and witnesses with learning disabilities". This 'aide-memoire' has been prepared as a result of responses to the consultation that we conducted whilst developing the policy statements.

It aims to assist prosecutors with charging advice and case management in cases involving victims and witnesses with mental health issues and/or learning disabilities by focussing attention on specific issues. These include the support, credibility and reliability of witnesses, and the use of medical records or other personal information about a victim or witness. All these issues were identified in consultation responses as being potentially relevant in such cases.

Relationship between the Code and the policy

The policies and guidance should always be read in conjunction with the Code for Crown Prosecutors. These documents support and underpin the Code by providing further guidance. The policies and guidance should never be interpreted in such a way that the Code test is diluted or supplanted.

Building a robust case

Actively build a case. Make sure you are satisfied that all available evidence has been gathered, including all information that either undermines or supports the Crown's case (refer to the Attorney General's Guidelines on Disclosure and the Code for further detail).

Don't assume that a complainant giving evidence in court is the only way to prove the matter. Instead, consider if there is other material that supports the prosecution case but is independent of the complainant, or corroborates the complainant.

Build the case around the strengths and needs of the victim or witness. Establish from the beginning whether a victim or witness needs support, and what that support should be. Have you been told that the victim or witness may have mental health issues and/or a learning disability? Does the evidence suggest this? Is there evidence of hostility based on disability surrounding the offence?

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Supporting victims and witnesses

Consider the nature of the evidence: 

  • What does the victim or witness say happened?
  • Would a pre-trial witness interview be appropriate and useful to test the evidence, and to assess reliability?
  • Do all you can to support the victim or witness through the criminal justice process to encourage them to participate in the prosecution. Ask the question "what support can we offer this witness to ensure that they are able to give their best evidence?"
  • Don't make assumptions about the support needs of a victim or witness who has mental health issues and/or a learning disability. Make sure that they are asked about their support needs (if any) - don't automatically ask other people such as carers or family members.
  • Are you confident that the police have explained special measures to the victim or witness and that the victim or witness understands what may be available to them?
  • Has the victim or witness indicated what support s/he needs through the prosecution process (for example, special measures, reporting restrictions)?
  • In most cases a special measures discussion should take place with the police officer in the case to ensure that special measures needs have been properly considered.
  • Consider the need to have a meeting with the victim or witness prior to making a special measures application. Make sure that a victim or witness has any support s/he may need if such a meeting is arranged.
  • If a special measures application is granted make sure that the victim or witness is told so that s/he has certainty about how their evidence will be given.
  • If a special measures application is refused make sure that the victim or witness is told and an explanation given. Are there other ways to support the victim or witness short of special measures?
  • Are there concerns about safety, or repeat offending? Does the victim or witness continue to be at risk? Is there a need to seek the imposition of bail conditions, or are there grounds to seek to remand the defendant in custody?
  • Has a victim personal statement been taken? Does it raise issues that should be addressed as far as the defendant's bail status is concerned? Is it up-to-date?
  • Is an intermediary going to be required? Who would best meet the needs of the victim or witness in this regard? Don't forget that an intermediary can be used to enable the victim or witness to give their initial account to the police.
  • Is there enough information to ensure that victim care issues can be comprehensively assessed (for example, on the MG2 and MG11 forms)?
  • What individual needs does the victim or witness have such that they require any other, specialist, support (for example, cultural or language barriers, alcohol or drug dependency, disability, physical or mental illness)?
  • Where relevant and appropriate the witness should be referred to support services or voluntary groups - the Witness Care Unit should have details in their Contact Directory.
  • Can the victim or witness read? If not, ensure that arrangements are in place at court to allow them to be able to refresh their memory from their statement effectively.
  • What existing support arrangements are in place for the victim or witness, for example, specialist support advocacy? Will they be relevant for the present proceedings or is other support more appropriate? What support would the victim or witness prefer?
  • Consider the potential benefits to the victim or witness of a court familiarisation visit. Being able to see the court room before the hearing may make the experience of giving evidence more bearable for the victim or witness. If a special measures application has been granted the victim or witness will have an opportunity to see the video room, screen, where the intermediary will sit, etc.
  • Has the victim or witness been asked if they would like a pre-trial visit? The Witness Care Officer will offer the victim or witness a pre-trial visit when undertaking the detailed needs assessment.
  • Has the Witness Service been involved in supporting the victim or witness? If not, should they be involved?
  • Has the victim or witness been asked whether they would feel less anxious if they knew that a 'supporter' was in the court room?
  • Do court staff need to know about any particular needs or requirements that the victim or witness may have? Remember to let the usher know if the victim or witness will be unable to read the oath.
  • If the victim or witness requires it, ask the judge or magistrate to allow the witness to have regular comfort breaks.
  • Have arrangements been made to meet the victim or witness when they attend court to give evidence? Simple tasks such as entering the court and going through security can be a very difficult experience, particularly for people who may find unfamiliar settings and people intimidating. Has consideration been given to the victim or witness entering the building through a separate entrance?
  • Be aware of the possibility that the court proceedings themselves may have an adverse affect on the mental health of the victim or witness and may exacerbate a pre-existing condition. A court familiarisation visit may help to reduce the anxiety of the victim or witness on the day of the trial.
  • The victim or witness should be protected from unwarranted or irrelevant attacks on their character; the court's intervention should be sought where cross examination is considered to be inappropriate or oppressive (Prosecutors' Pledge). This may include improper use of medical or psychiatric records to discredit the victim or witness.
  • Be aware of the potential need to tailor your use of language and/or style of communication to meet the needs of victims or witnesses with mental health issues or learning disabilities. People who do not regularly attend court will not understand legal 'jargon'. Court procedures should be explained thoroughly but without being patronising.
  • Demonstrate patience in providing the right support to the victim or witness.

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Credibility and reliability

People with mental health issues and/or learning disabilities should have the same opportunity as anyone else to be able to give evidence. Prosecutors should only question the competence of a witness in the same circumstances as they would for any other witness. Prosecutors must not make negative assumptions about the competence of a witness who has mental health issues and/or a learning disability.

  • Capacity - don't assume that someone with a mental health issue and/or learning disability cannot make decisions for themselves just because they have a particular condition.
  • Victims and witnesses may need support to help them make decisions, for example by using different ways of communicating. Find out if this is the case and if so who can provide the necessary support. This person might be a friend of the witness or an advocate who helps them in their day to day life with housing and medical issues, for example.
  • Start from the position that the victim or witness is credible and reliable. Only question credibility/reliability in the same circumstances as for any other victim or witness, that is, when something specific is raised about the victim or witness or the condition that they have which calls it into question.
  • If there are concerns about credibility or reliability, consider seeking professional evidence and opinion from an appropriate source.
  • Consider holding a pre-trial witness interview with the victim or witness. This will help you to become familiar with how the witness communicates and to identify words and terminology to avoid where possible. Coaching must be avoided.
  • Remember that special measures, such as the use of an intermediary, can help to support the victim or witness so that the court is satisfied that the victim or witness is competent to give evidence.

Medical records and expert evidence

Information about a person's health and treatment for ill health is both private and confidential. The following factors are likely to be relevant when dealing with medical records or other personal information.

  • Is the victim or witness's mental health history likely to be of relevance in the case?
  • Find out if the victim or witness is under medical care or has received such care in the recent past.
  • Ask the police to establish if there may be material in the records that satisfies the Criminal Procedure and Investigations Act 1996 disclosure test. Will it be necessary to seek access to those records to satisfy the disclosure test?
  • If access to records is considered to be necessary, ask the victim or witness to consent to the disclosure of the record. Consent must be informed and given freely - that is the victim or witness needs to know why the records are needed and what will happen to the records (such as disclosure to the defence) if they are released. The victim or witness has the right to decline consent if he or she so wishes and undue pressure should not be brought to bear.
  • Do you need to consider obtaining a witness summons to gain access to medical records if the victim or witness does not consent to release them?
  • Do you need to obtain evidence from an expert witness? Who is the most appropriate person to give that evidence?
  • Has the expert witness got all the relevant material to assist in providing a report? Have you drawn the expert's attention to the issues in the case and made it clear as to the questions to which an answer is requested and as to the opinion which is sought?
  • Once you have the report, is it relevant and if so, will you need to call the witness to give evidence?
  • If not relevant, does it need to be disclosed? Might it be used as rebuttal evidence to refute assertions that a witness is not reliable? Does it undermine the prosecution case?

Sentencing

The prosecutor should be proactive in making sure that the court has all the information it requires to sentence the defendant. The prosecutor's duties are clearly set out in the Attorney General's Guidelines on the Acceptance of Pleas and the Prosecutor's Role in the Sentencing Exercise [2009], and in the Code for Crown Prosecutors.

The following factors may be relevant: 

  • Is there evidence of hostility based on disability to put before the court to engage the enhanced sentencing powers of section 146 Criminal Justice Act 2003?
  • Is all the relevant information available to make application for appropriate ancillary orders?
  • Has a Victim Personal Statement (VPS) been obtained? Is it up to date? Does the victim want to read their VPS aloud to the court (at the court's discretion)?  If not, does the victim want their VPS read aloud (usually be the CPS prosecutor)? See revised Code of Practice for Victims of Crime for further details. 
  • Does the victim want to be present at the sentencing hearing? Has the victim asked for an explanation of what the sentence means?
  • Do we need to inform other agencies of the sentencing outcome so that they can take appropriate action against the defendant (such as asking the police to ensure that the necessary referral has been made to the Independent Safeguarding Authority)?
  • If the victim is not already receiving support from, for example, a voluntary organisation, would the victim like to be referred at this stage for ongoing support?

Annex B: Process charts

Table 1: Prosecutor believes there may be medical evidence that may be relevant
Table 2: Victim/Witness gives qualified consent (to prosecutor only) to see medical record
Table 3: Victim/Witness does not consent to release medical evidence

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Annex C: Sources of further information

Learning Disability

About Learning Disabilities: www.aboutlearningdisabilities.co.uk; contains numerous articles written by experts.

Ann Craft Trust: www.anncrafttrust.org; organisation working with staff in the statutory, independent and voluntary sectors to prevent people with learning disabilities who may be at risk from abuse.

Association for Real Change: www.arcuk.org.uk; a membership organisation which supports providers of services to people with a learning disability to promote real change.

The British Institute of Learning Disability: www.bild.org.uk; national charity committed to improving the quality of life for people in the UK with a learning disability.

The Downs Syndrome Association: www.downs-syndrome.org.uk; an organisation that focuses on all aspects of living successfully with Down's syndrome.

Foundation for people with learning disabilities: www.learningdisabilities.org.uk; works to promote the rights, quality of life and opportunities of people with learning disabilities and their families.

Mencap: www.mencap.org.uk; supports people with a learning disability and their families and carers.

National Autistic Society: www.NAS.org.uk; supports people with autism and their families.

People First: www.peoplefirstltd.com; organisation run by and for people with learning disabilities to raise awareness of, and campaign for, the rights of people with learning disabilities.

Voice UK: www.voiceuk.org.uk; national charity supporting people with learning disabilities and other vulnerable people who have experienced crime or abuse.

Mental Health issues

Mental Health Foundation: www.mentalhealth.org.uk; charity that provides information, carries out research, campaigns and works to improve services for anyone affected by mental health problems.

Mind: www.mind.org.uk; mental health charity for England and Wales; a national and local network with 180 local Mind associations. Mind have published a mental health 'toolkit' for prosecutors and advocates which can be accessed here: http://www.mind.org.uk/assets/0000/9950/Prosecutors__toolkit.pdf

Rethink: www.rethink.org; national mental health membership charity, working to help everyone affected by severe mental illness recover a better quality of life.

Royal College of Psychiatrists: www.rcpsych.ac.uk; improving the lives of people affected by mental illness.

Sainsbury Centre for Mental Health: www.scmh.org.uk; national charity working to improve the quality of life for people with mental health problems by influencing policy and practice in mental health and related services.

Sane: www.sane.org.uk; national charity established in 1986 to improve the quality of life for people affected by mental illness.

General

a4a; action for advocacy: www.actionforadvocacy.org.uk; the central point of information on independent advocacy

General Medical Council 'Confidentiality; Guidance for doctors: http://www.gmc-uk.org/static/documents/content/Confidentiality_core_2009.pdf

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