My Lords, in speaking to this amendment, I draw your Lordships’ attention to my declaration of interests, and I am vice-chair of the Local Government Association.
I thank the noble Lord, Lord Ponsonby, for comprehensively covering the reason for tabling the amendment, and I am delighted that my name is added to it. It is a very difficult issue to raise. There are many, many kind carers out there, but we should recognise that some are not. I know that some people have difficulty with this being debated as part of a domestic abuse vehicle and question whether it is the right vehicle for raising the issues, but I argue that it is, because many cases of abuse occur in a domestic situation.
It is incredibly difficult for disabled people to raise these issues when not only personal care but control of transport and money and the ability to get out might be at stake. We know from various pieces of work that it is very difficult for disabled people to raise these issues. The Equality and Human Rights Commission, in its work from November 2020 entitled Survival, Recovery and Justice: Specialist Services for Survivors of Domestic Abuse, said that disabled women are already disproportionately impacted by domestic abuse. In its 2017 report, SafeLives says that they are
“twice as likely to experience domestic abuse as non-disabled women”
and
“four times more likely to report abuse from multiple perpetrators”.
The charity Stay Safe East, which supports disabled survivors of domestic abuse, considers that the defence has the potential to prolong the abuse of disabled victims, to prevent victims getting justice and to disadvantage disabled victims of coercive control. This is particularly concerning in a context where disabled survivors already experience abuse for longer before seeking help. According to the SafeLives work from 2017, called Disabled Survivors Too, on average disabled victims wait for 3.3 years before accessing support, compared with 2.3 years for non-disabled victims.
A statutory framework is already in place to involve professionals where a person might lack capacity and require medication or confinement—for example, the procedures under the Mental Capacity Act or the Mental Health Act—and there is protection from criminal liability for carers of people who lack capacity. Should a person not lack capacity, they have the right to refuse medication or other treatments or restraints. Nobody should be subject to coercive or controlling behaviour by a spouse or carer, and the law should not provide lesser protection just because somebody is disabled.
There is a high bar for the crime of coercive control. Behaviour must cause a victim serious alarm or distress and have a substantial adverse effect on their day-to-day activities. We should consider the best-interests defence and the risks of it, as it could enable potential abusers
to justify that behaviour by claiming that they were acting in the disabled person’s best interests. It also risks feeding into the stereotypes of disabled people, which suggest that they lack autonomy.
We are living in an increasingly paternalistic and ableist world. I know from my personal experience of the pandemic, because I have not been out every day and carrying out my normal line of work, how much resilience disabled people need to deal with their day-to-day experiences, when they are not being believed or having their views accepted. This applies to simple things. Even before our first lockdown, when I was travelling on public transport people felt able to ask me whether I was able to make the right decision about whether to get on a bus or Tube in London, whether to wear my coat out or what I should do with my purse in a shop.
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These may sound as if they are at a tangent to what we are discussing in the Bill but, at that very low level, my day-to-day experience is questioned. Feed into that a disabled woman experiencing domestic abuse and their lack of ability to speak out. Who believes the victim? A disabled person continuously has to prove that they have the capacity to make these decisions. I am worried that, unless we have an open conversation and debate about this, disabled people will not be believed and this defence will carry on.
I recognise that carers often face challenging situations and that support for them is lacking. However, as the Carers Trust has said, the answer is to make better provision for services that support carers and to ensure access to the relevant procedures under the Mental Capacity Act or Mental Health Act. In this context, the Carers Trust states that
“unpaid carers need better services and support. Fully funding, implementing and enforcing legislation and guidance which protects unpaid carers’ rights and entitlements under such legislation as the Care Act, the Mental Capacity Act and the Mental Health Act would achieve this.”
The answer to the challenges faced by carers does not lie in providing a potential loophole for the abuse of disabled survivors. I look forward to further debate on the issue and to the Minister’s response.