Does the Equality Act 2010 ensure equality for individuals with Asperger syndrome in the legal arena?: A survey of recent UK case law

Volume 1. No. 4

Does the Equality Act 2010 ensure equality for individuals with Asperger syndrome in the legal arena?: A survey of recent UK case law

 

April 26, 2017

By Russell Foster

 

Abstract:

The recent history of AS has been perhaps the most controversial since the first publication relating to the syndrome in 1944, especially regarding its nosology. For example, the latest (5th) version of the Diagnostic and Statistical Manual (DSM-V) published in May, 2013 does not include Asperger syndrome (AS) and instead refers to AS as an autistic spectrum disorder. This change is controversial, and indeed, supports the suggestion that the research presented in this article is timely, given the potential for AS (as defined prior to DSM-V) to disappear from current clinical practice and cease to be recognised in law. In this article I investigate whether the Equality Act 2010 ensures equality for individuals with AS in the legal arena. My investigation involved identifying individual cases using two commonly used legal search engines, Westlaw and LexisNexis. Following the identification of specific cases, these were then analysed for relevance using any available case analyses and official transcripts. The findings presented in this article suggest that the Law may well still be potentially discriminating and not ensuring equality for individuals with AS, despite the introduction of the Equality Act 2010.

 


 

Does the Equality Act 2010 ensure equality for individuals with Asperger syndrome in the legal arena?: A survey of recent UK case law

By Russell Foster

Introduction

Until there is a change in the laws themselves to adapt to the neurological processes of those with AS (Asperger Syndrome) to ensure that the conceptual legal framework is inclusive, there appears to be a need for alternative strategies to be in place for those with AS who break the law, but who do not appear to be covered by the current legal framework. [i]

 

These words, written by Beardon in 2008, relate to his seminal research regarding the complex association between individuals with AS and the criminal justice system (CJS). He further proposed, for example, that, in some cases AS may account in part or in whole for the behaviour of an individual and, as such, should be taken into account when decision making processes take place. [ii]

 

While this has been echoed in recent reviews showing that the needs of individuals with AS and autistic spectrum disorders (ASD) are not always appreciated or met in the CJS, [iii] a recently introduced UK statute may well provide the boost for Beardons desire for inclusivity in the conceptual legal framework. For, on 8 April 2010, the Equality Act 2010 (The Act) received Royal Assent and subsequently came into force on 1 October 2010 [iv] with additional provisions coming into force in April and September, 2011. [v] This Act replaced some nine previous pieces of legislation, [vi] and set out a number of key provisions, including protection against discrimination, harassment and victimisation, introducing the concept of discrimination arising from disability, provisions relating to work (including new powers for employment tribunals and positive action duties for public authorities), banning age discrimination, defining a duty of equality for public bodies and more. That the Act is substantial and wide-ranging is clear: not only does it comprise some sixteen parts, with 218 sections, but it also includes 28 schedules. [vii]

 

The Act is notable due to its inclusion of a number of key definitions. For example, under the Act, AS and ASD are classified as disabilities according to the following definition: A person (P) has a disability if(a) P has a physical or mental impairment, and (b) the impairment has a substantial and long-term adverse effect on P's ability to carry out normal day-to-day activities. [viii] The Act should thus ensure that individuals with any form of disability will be afforded appropriate protection, although, discussed later, the influence of this Act in relation to individuals with AS and ASD - at least in UK case law - appears to be somewhat limited.

Given that the Act has now been in force for over two years, it is instructive to consider its impact thus far in relation to AS and ASD. To do this, available published legal cases will be analysed. It should be noted that this is but one of myriad ways of measuring the potential impact of a law, statute or policy, [ix] and the results reported here should be considered as a limited pilot project. A search of the current literature suggests that this approach has not been previously attempted, although a short article has been published on the legal impact of the Act on mental health disability claims. [x] This publication does not refer specifically to AS or ASD, although it raises some interesting legal points, which will be considered later.

 

While the published literature is sparse in relation to AS and case law, a recent Australian publication has stated that,

a review of superior court decisions suggests that persons diagnosed in the pre-DSM-V era with AD [Aspergers Disorder] were significantly and increasingly frequently appearing in court judgments especially the family law and criminal law areas in the latter as both offenders and victims. [xi]

 

This review is not a systemic analysis of cases, and its findings are not specifically referenced anywhere in the paper. It does consider of a number of legal cases, however, which may be a useful comparator for future UK-based research. While other authors have looked at the relationship between the Equality Act 2010 and mental health, [xii] this has not been undertaken specifically in relation to AS and ASD.

 

To address this apparent lacuna, the current work will attempt to answer the key question of whether the Equality Act 2010 has had an impact on how courts deal with individuals with AS and ASD. A secondary question will also be considered, namely whether the published legal cases support or refute the epidemiological data relating to offending and AS. It is hoped that the answers to these two questions these will then allow for a more considered evaluation of Beardons statement at the start of this article. It should be noted that a full consideration of all the potential legal aspects of AS is beyond the scope of the current work, and space limitations will necessarily curtail the extent of both the legal analysis as well as the resulting discussion. This work will only examine the Equality Act 2010 as it applies in English and Wales, with the Law considered as at 8 January 2014. It will thus necessarily have a number of limitations, which will be discussed later.

 

 

Asperger Syndrome and the Criminal Justice System

The recent history of AS has been perhaps the most controversial since the first publication relating to the syndrome in 1944, [xiii] especially regarding its nosology. For example, the latest (5th) version of the Diagnostic and Statistical Manual (DSM-V) published in May, 2013 does not include AS and instead refers to AS as an autistic spectrum disorder. [xiv] This change is controversial, and indeed, supports the suggestion that the research presented in this article is timely, given the potential for AS (as defined prior to DSM-V) to disappear from current clinical practice and cease to be recognised in law. Of note, in the UK, the ICD-10 (International Classification of Diseases) system of nosology is utilised for physical and mental health conditions, and the impact of DSM-V in the UK has been suggested likely to be minimal, at least in the short-term. [xv] While one UK author has clearly stated that, these changes in DSM-5 in relation to autism are radical and will lead to patients losing their diagnosis and services, [xvi] the impact of this remains to be confirmed. It should be noted that AS is not the first condition to be removed from diagnostic manuals, and conditions such as hysteria, [xvii] neurasthenia [xviii] and others have disappeared. [xix] This confirms that psychiatric nosology remains somewhat unscientific and in a state of continual flux.[xx]

 

For the purposes of this article, the ICD-10 definition of AS will be utilised: [xxi]

 

A disorder of uncertain nosological validity, characterised by the same type of quantitative abnormalities of reciprocal social interaction that typify autism, together with a restricted, stereotyped, repetitive repertoire of interests and activities. It differs from autism primarily in the fact that there is no general delay or retardation in language or in cognitive development.

 

This definition is not without its limitations, with a review from 2011 of the diagnostic criteria for AS in children utilised in 69 studies finding a high degree of variation and inconsistency in diagnosis, with great overlaps between AS and autism. [xxii] This finding clearly supports Beardons view that, the similarities between those with a diagnosis of autism and those with a diagnosis of AS outweigh any significant difference. [xxiii]

 

The currently available epidemiological data regarding the relationship between AS and the CJS suggest that there is as yet no definitive evidence that individuals with AS are more (or less) prone to committing offences or coming into contact with the CJS. [xxiv] Indeed, the relationship between AS and the CJS has been referred to as a square peg in a round hole. [xxv] To complicate matters, current research findings are contradictory, with no definitive studies yet proving a link between AS and offending behaviour. [xxvi] For example, studies have found higher rates of AS in secure settings than in general populations, [xxvii] although these have been criticised due to methodological flaws. [xxviii] Conversely, studies have found lower rates of offending. [xxix] Additionally, there is one published study which found no association between AS and offending behaviour. [xxx]

 

But what of the more contemporary links between the law and AS? That AS remains of topical interest is clear from the attention paid in the media and elsewhere to the recent scandal regarding autism and vaccination. [xxxi] Additionally, the case of Gary McKinnon remains topical; this individual is a Scottish man who was accused of hacking into US military computers between 2001 and 2002. He was subsequently indicted by an American jury (in his absence) on a number of charges, [xxxii] and was later diagnosed with AS. Whilst he was due to be extradited to the US, this was eventually overturned after a long legal battle involving arguments concerning his human rights. [xxxiii] While his case, and those of others [xxxiv] may well suggest an association between computer hacking and AS, the very limited research in this area does not support this. [xxxv] Examination of the published literature suggests that individuals with AS (especially in the US) have been associated with a range of number of crimes, including manslaughter and murder, [xxxvi] although these latter cases are rare and do not in themselves support any clear link between AS and offending.

 

As an aside, it is noteworthy that in Aspergers original description of the syndrome, the cases of four children were presented, two of whom were reported to be violent, with one of these also reported to be sexually disinhibited. [xxxvii] While this perhaps could suggest a link between violence or offending behaviour and AS, later research conducted into Aspergers original cohort of 177 former patients over a period of 22 years failed to find any differences in the rates of conviction as compared to a general male population. [xxxviii]

 

Recent Policy and Legislation relating to Autistic Spectrum Disorders

The last five years has seen a number of specific policy and legal changes in the UK specifically regarding AS and ASD, in addition to what has been described as, a policy waterfall, both within and beyond the arena of mental health services [xxxix]. Here, specific policies and one statute are worthy of brief mention. In 2001, the UK government published a white paper, Valuing People,[xl] which aimed to increase social inclusion of individuals with learning difficulties, including AS and ASD, and a subsequent government publication, Valuing People Now, reiterated these principles, and included the need for awareness training for prison staff. [xli]

 

On 12 November 2009, the Autism Act 2009, came into force, [xlii] partly as a result of a concerted campaign by the National Autistic Society.[xliii] The Act contains six parts, including the requirement for the Secretary of State to produce and publish an autism strategy to include how bodies such as the NHS and local authorities should implement that strategy. This was indeed published, [xliv] and sets out a range of recommendations and requirements. These relate to five key areas, namely appropriate community assessment in for adults with a diagnosis of autism, compulsory training for individuals working in health and social care, the need for a senior manager or joint commissioner with responsibility for commissioning of services for adults with autism, clear access to diagnostic services and local plans for development of services. Despite the comprehensive aims of this strategy, its impact appears unclear, with on-going variations in knowledge of AS and ASD [xlv] and the Autism Strategy. [xlvi] It is perhaps worthy of debate whether this variability of knowledge among the public and stakeholders would change if the high economic costs of the disorder were fully recognised. [xlvii]

 

Despite these potential shortcomings, a positive corollary of these various policies and the Autism Act 2009 is the Equality Act 2010, which, builds upon requirements already in force through the first ever disability-specific law, the Autism Act 2009.[xlviii] It is thus of great interest and utility to consider the impact of this important and wide-ranging statute as it relates to AS and ASD.

 

Methodology

Individual cases were identified using two commonly used legal search engines, Westlaw [xlix] and LexisNexis [l]. The searches started with all relevant, cases published in the UK, irrespective of date, in order to determine the total number of cases referring to AS, autism or ASD. Then, further searches were conducted, which were limited to only those cases reported in English and Welsh legal jurisdictions and published after 1 October 2010 (that is, following the introduction of the Act). Initial searches were conducted using six, specific search terms: Asperger, Asperger Syndrome, Autistic, Autistic Spectrum Disorder, Autistic Spectrum and Autism. Following this, searches adding the phrase Equality Act 2010 to these six search terms were conducted using the search within results tool. The results of these initial searches are summarized in appendices two and three (for Westlaw and LexisNexis searches, respectively). In addition, two control searches using the search phrase Equality Act 2010 were carried out using both search engines to include published cases after 1 October 2010. These results are also included in appendices two and three.

 

Following the identification of specific cases, these were then analysed for relevance using any available case analyses and official transcripts. The information obtained from these relevant cases is summarised in appendix four.

 

Results

 

(1) Total Number of Cases found

 

Different numbers of cases were identified, depending on which search term, phrase or search engine was utilised. The majority of cases on Westlaw were found using the search term Autistic and the least with the search term Asperger, while the majority of cases on LexisNexis were also found using the search term Autistic and the least with Autistic Spectrum Disorder. Of note, the search with LexisNexis found more cases referring specifically to Asperger than in Westlaw. Total numbers of cases found using LexisNexis were also higher than for Westlaw, with the exception of the search using the phrase, Autistic Spectrum Disorder.

 

For searches using both search engines, the number of potentially relevant cases was found to decrease when only considering cases reported after 1 October 2010, and were further noted to decrease dramatically in the final search, with the addition of the search phrase Equality Act 2010. Here, the number of potentially relevant cases ranged from 2-14, representing less than 1% of the previously identified cases. Only seven cases were ultimately found to be of direct relevance to the current work (see appendix four). The control searches utilizing the search phrase Equality Act 2010 indicated the total numbers of published cases in both search engines from all available dates and after 1 October 2012. Using this latter figure suggests a significant number of these cases were concerned in some measure with individuals with AS or ASD. In the Westlaw cohort, depending on the search phrase under consideration, these figures range from 20.1% of cases to 43.4%, while for the LexisNexis cases the figures range from 11.8% of cases to 34.1%.

 

(2) Specific Legal Domains

 

Westlaw and LexisNexis utilise different classifications for each domain, although there is some overlap. In the Westlaw series, the majority of cases were related to legal system, crime, health and social security, family and private life, local government and public services and utilities, while for LexisNexis similar trends were seen, with the majority of cases referring to criminal law and disposition of offenders, criminal procedure, family law, health law, education law and civil procedure and administration of justice.

 

 

 

 

(3) Individual Cases

 

Westlaw and LexisNexis utilise different legal domain classifications, making direct comparisons difficult. Thus only the domains of Crime in Westlaw and Criminal Law and Disposition of Offenders and Criminal Procedure in LexisNexis will be considered. In the Westlaw case series, the total number of Crime cases ranged from 69 (Autism) to 139 (Autistic) with a significant reduction (in all cases of over 50%) in the number of cases from 1 October 2010 and to a maximum of 2 when reference to the Equality Act 2010 was considered. In the LexisNexis series, similar trends were seen, with a maximum of 1 case identified when the search included the Equality Act 2010. In either search engine the search for criminal cases including either Asperger or Asperger Syndrome only resulted in 1 case, found using LexisNexis. The small number of cases makes any sort of definitive analysis impossible, and the variations failed to demonstrate any clear trends or associations relating to which court was involved, the defendants ages, nature of the offence or offences, the reported diagnosis or diagnoses, the outcomes or the section(s) of the Act referred to. There were, however, more males (six) than females (one) identified in this small case series.

 

Discussion

The purpose of this work was to consider two key questions: i) does the Equality Act 2010 ensure equality for individuals with AS and ASD in the legal arena?; and ii) do the published legal cases support or refute the epidemiological data relating to offending and AS? The research presented in this article found a relatively small number of relevant cases. Thus, despite the introduction of the Act over three years ago, its impact on case law appears limited. Although the numbers of cases found using the different search terms resulted in a number of potentially relevant cases, further analysis by ensuring specific reference to both individuals with AS or ASD and the Equality Act 2010 resulted in only seven cases. A possible reasons for this is the time it takes to incorporate a new statute into case law, given the fact that statutes are inevitably incomplete [li] together with the complexity of statutory interpretation. [lii] Thus the relatively short time frame under consideration may well be too short to determine meaningfully the impact of the Act, although interestingly - other Acts have been rapidly challenged in case law.[liii] Why this is the case in relation to the Equality Act 2010 remains to be determined.

Although the current work has concerned itself with the impact of the Equality Act 2010 in relation to AS and ASD, it is useful to consider its impact generally and then specifically in relation to AS and ASD. It is clear from the current work that the majority of published cases do not relate to individuals with AS or ASD, and the variety of legal domains which these cases encompass further suggests a broad influence of the Act. Regarding mental health in general, Veale [liv] has suggested that while the NHS Constitution has incorporated the Equality Act, individuals with mental disorders (considered as disabilities under the Equality Act) remain discriminated against in terms of choice and access to secondary services. That there is continued discrimination against individuals with mental health disorders and learning difficulties is clear, [lv] with a large body of literature discussing the nature of stigma and mental illness [lvi] especially in relation to discrimination and mental illness in the elderly, [lvii] children with disabilities [lviii] as well as AS. [lix] In addition, there are examples from case law involving individuals with AS and alleged harassment or unfair treatment, [lx] although relevant cases appear to be few in number. [lxi] In the case of R. (on the application of W), [lxii] the appellant, who had a diagnosis of AS, had been charged with harassment and appealed this charge on the basis of his AS, which made him vulnerable and contributed to his claim of a lack of a fair trial. This was rejected by the court, which, in its decision, stated,

In our judgment, the judge and his colleagues did ensure that the trial was fair and did accommodate the appellant's vulnerability as a person suffering from Asperger's Syndrome [lxiii]

 

Various justifications for this included the judge allowing the appellant to cross-examine witnesses, to give his evidence without undue interruption, for interruptions to be appropriate and sympathetic and for the cross-examination to be brief and [of a] friendly nature. [lxiv] Interestingly, there is a reference in the official court transcript to the appellants oral evidence having to be curtailed after an hour and a quarter lest the case be prolonged for days; this may well be a reflection on the nature of the appellant but likely more to do with the many years the case had taken thus far to resolve.

 

Encouragingly, there was clear reference in this case to the acknowledgement of the Court of the appellants AS and how this could be reasonably accommodated. It is noteworthy that these adjustments and efforts to accommodate this individual with AS were referred to specifically and at some length, and it is curious that similar accommodations do not appear to be routinely described in other cases involving individuals with AS. [lxv] Whether this lacuna will eventually be challenged in future case law remains to be seen.

 

In an earlier case, that of Hewett, [lxvi] it was argued successfully that an individual with AS who had difficulty understanding social interactions could be considered as having limited understanding and thus be considered disabled under the Disability Discrimination Act 1995. This case was based on a previous key case, that of Goodwin, [lxvii] which defined the concept of understanding as having a broad interpretation. While these two cases date prior to the introduction of the Equality Act 2010, their reference to AS and the legal interpretation of the concept of understanding make them seminal cases that are likely to be referred to in future cases involving individuals with AS. At the very least they confirm that the difficulties in social interaction found in individuals with AS do constitute a disability and as such have the potential to form a cogent basis for future legal challenges involving the Equality Act.

 

Returning to the current research, it is important to consider other relevant aspects of AS and its association with the law. Given that the epidemiology of AS varies considerably, [lxviii] and the misdiagnosis or delayed diagnosis of this disorder is a serious problem, [lxix] the small number of cases found will necessarily miss individuals with AS or ASD. Indeed, it is generally agreed that there are likely to be many individuals in prisons who have unrecognised autistic spectrum disorders [lxx] and it is thus the CJS as a whole is likely not to be recognising these individuals. In the current case series, the preponderance of males (six males versus one female) was consistent with previous research findings,[lxxi] although the number of females with the disorder may well be under-recognised. There is a suggestion in the published literature that the diagnostic criteria for AS are tuned to the male manifestation of the syndrome [lxxii] and, as a result of this, females with AS may not be recognised. [lxxiii] Further support for this comes from identification of gender-specific specific biological markers for AS and ASD. [lxxiv]

 

The seven identified cases are noteworthy as they do not address individual differences in ability to communicate, nor are reasonable adjustments referred to. Furthermore, in only one case, Swan Housing Association, [lxxv] is disability referred to. In this case, the defendants claim of AS constituting a disability was felt to be independent of the AS, for which no confirmatory medical evidence had been presented. A similar outcome was found in Telchadder, [lxxvi] in which anti-social behaviour was also a factor but was not felt to be related to disability arising from autistic traits. In another case, AS was claimed as the cause of unfitness to practice by a consultant psychiatrist but was dismissed, [lxxvii] on the basis that the provisions of the Equality Act 2010 did not apply. It is noteworthy, however, that in a different case, that of Parents of C, [lxxviii] the defendants vulnerability was felt to be an aspect of her disability. This case perhaps best illustrates the application of the Equality Act 2010 to individuals with AS and autistic spectrum disorders, with the case of P [lxxix] highlighting the importance of reasonable adjustments.

 

It is perhaps ironic that the cases considered here do not refer to any specific features of AS in any great detail, nor to how diagnoses were actually determined. While this omission may appear curious, in the majority of these cases diagnosis was not the major focus. In none of the cases was there any consideration of whether the defendants were fit to plead (itself a complex legal entity, especially in relation to AS and ASD [lxxx]), whether they had mens rea (intent to commit a crime [lxxxi]) or whether they were reliable witnesses. [lxxxii] The lack of reference to these may well suggest that fairness under the law was partially lacking, and future cases may consider these and result in different findings and possibly more appeals to higher courts.

 

As noted in the introduction to the current work, there is a published paper considering the impact of the Equality Act 2010 on mental health-related disability claims. [lxxxiii] This paper suggests that up to 2005 here was a need in law for mental impairments to be clinically well-recognised, and the removal of this requirement was likely an important step in ensuring equality for mentally-disordered individuals (as well as those with AS or ASD) in the legal arena. It has also been suggested that the scope of the Equality Act 2010 may well result in an increased number of discrimination and harassment claims in relation to metal health, [lxxxiv] although, whether this will include sizeable numbers of individuals with AS and ASD remains unclear.

 

Finally, do the published legal cases support or refute the epidemiological data relating to offending and AS? While the small number of cases makes the formulation of any definitive conclusions impossible, these cases do not in themselves suggest any clear link between offending and AS. Looking at the crude measure of the total numbers of cases involving individuals with AS or autism identified compared to the total number of published cases in all legal domains and jurisdictions suggests that these comprise a minimal percentage.[lxxxv] If accurate, this very low percentage would confirm that individuals with AS are not at a particularly high risk of offending. It may well be that while courts fail to identify AS and ASD, once in prison the medical and educational services will do so. The variation in court diversion services may also play a role here, [lxxxvi] as will the level of awareness by legal professionals. [lxxxvii] But whatever the reason, the likely under-recognition of individuals with AS and ASD because of clinical unfamiliarity with its adult presentation [lxxxviii] in the criminal justice system does suggest that equality in the legal arena remains some way off.

 

 

Limitations of the current work

Despite the potential utility of the current work, it does have some important limitations. For example, the use of additional legal databases may well have identified additional cases. As the current work may be considered as a pilot project, future work in this area could utilise additional data sources to overcome this limitation. Another potential limitation is the restriction of cases to English and Welsh jurisdictions; a comparison of other jurisdictions may well yield valuable information, although comparative law is beset with complexities. [lxxxix] An additional concern could relate to the lack of attention paid to excluded cases, although the sheer amount of new information discovered in the various searches meant that this was necessarily un-examined. However, an analysis of those cases deemed not to be relevant due to their exclusion of specific reference to the Equality Act 2010 may be useful to determine why there appears to be a lacuna.

 

This work undertook a qualitative analysis of the various cases identified as relevant. In Law there appears to be a dearth of quantitative research, [xc] and the data in the current work could form a basis for prospective quantitative studies. These could, for example, compare the impact of the Equality Act 2010 with other Acts, such as the Criminal Justice Act 2003 or the Autism Act 2009. While all the cases under discussion referred to a range of Statutes, it was not possible here to consider these here, although further analysis may well have revealed pertinent legal issues. This could be addressed in future research.

 

Finally, any Law, statute, regulation or other legal instrument, especially a new one, will only be as effective as its safeguards, and whether these are actually recognised, monitored and enforced. While the measurement of the impact of any law is difficult, there are validated ways of doing this,[xci] which could be incorporated into future research. The current work has not been able to consider these in any detail, not least because of the vastness of the Equality Act 2010, the complexity of the legal system in general and the difficulties in conducting comparative legal research. [xcii] That said, a comparison between cases considered in Australia and the UK could be of interest, especially in view of the finding that individuals with AS in Australian jurisdictions have been disproportionately found to have committed certain types of offences such as arson, computer-related crimes, stalking, sexual offences, violence and neglect offences and dishonesty offences. [xciii] There may well be a number of cogent reasons for these findings, and it would indeed be of value to undertake a meta-analysis of AS and offending to determine the actual association between AS and offending.

 

Of note, the legal system may, in itself, be considered a form of safeguard, although like any system, it may actually promote social inequality and fail to safeguard vulnerable individuals. [xciv]. Although the Law itself is an artificial, nebulous and ever-changing construct, it is the interpretation and application of the Law, which is of fundamental importance. An apparent lack of understanding of the Law coupled with a lack of knowledge of AS and ASD may well be considered as a major reason why there appears to be such a large lacuna in the application of the Equality Act 2010.

 

Possible Solutions

The current work, together with recent UK policy and published research, suggests that more needs to be done to improve the fate of individuals with AS and ASD in the CJS. A key means of doing this is through improved education and training, as enshrined in the Autism Act 2009. Yet the impact of this Act appears less than that of the Equality Act 2010: searches using the search phrase Autism Act 2009 failed to find any cases on either Westlaw or LexisNexis. [xcv] While the significance of this is unclear, this lack of reference to this Act in case law does not appear to support equality in the legal arena for individuals with AS or ASD. While AS and ASD have been referred to as invisible disorders, [xcvi] the Autism and Equality Acts should ensure that these disorders are more commonly recognised and managed, although to date these Acts do not appear to have had a major impact on the legal arena. It is unfortunate that the Autism Act 2009 does not specifically refer to the CJS and the need for appropriate training, and it is of concern that current legal reforms, such as reducing legal aid, [xcvii] are further likely to reduce equality and access to justice.

 

Looking at police, court, law and health and social care professionals understanding of AS and ASD shows large inadequacies; for example, in one recent American study involving a randomized trial of AS awareness training of police, it was reported that, despite the significant gains in knowledge following training, post-test scores for participants in both groups did not indicate mastery of the training material. [xcviii] Studies in the UK looking at knowledge and understanding of AS and ASD have further supported this finding. [xcix] As discussed in the current work, references to AS and ASD in UK case law are limited, and various authors have looked at the inadequacies of the justice system and its difficulties when dealing with individuals with AS and ASD.[c] In addition to this, there is a growing body of literature looking at the variations in levels of knowledge of AS and ASD among healthcare workers in general, [ci] with specific studies confirming this in, for example, medical students, [cii] general practitioners, [ciii] social workers [civ]and psychiatrists. [cv] While there are perhaps complex reasons for these findings, they nonetheless illustrate lacunae in knowledge, training and ability, which can all combine to lead to poor quality services and further promote inequalities in health, social and legal arenas.

 

Although increased awareness of AS and ASD is clearly desirable, this may have resulted as a consequence of the MMR vaccination and autism scandal. [cvi] Yet, the varying accuracy of media portrayals of these disorders [cvii] and the potential for sensationalisation may increase stigma and discrimination, and promulgate negative stereotypes and misinformation. [cviii] . While this remains to be fully evaluated, the MMR scare has, for example, been reported to have adversely affect vaccination rates [cix] and its repercussions remain unresolved. [cx]

 

Apart from specific clinical knowledge regarding AS and ASD, it is also important to understand healthcare policy, given the fundamental importance of this. As mentioned previously, the National Autism Strategy does not appear to have been implemented adequately and there remains a lack of a coherent national strategy. [cxi] Yet there are ways that this may be addressed, with Archer and Hurley suggesting these specific solutions: [cxii]

 

1.     Having a simple identification marker for ASD on all IT systems and personal records across the entire public sector, including health, education and the CJS;

2.     Having a tiered autism awareness system for all public sector staff, ranging from basic, generic training for any staff having public contact, to contextualised training for staff in specific roles and finally specialised training for staff in roles requiring the implementation of interventions;

3.     Each Commissioning Group (Specialist and Clinical) having a specialist ASD service with a simple referral pathway available to GPs, local authorities and criminal justice agencies;

4.     Police custody staff should be provided with a simple initial screening tool to identify individuals who may be vulnerable and in need of further intervention, including the services of an appropriate adult, and diversion to appropriate services rather than prosecution;

5.     There should be a series of disposals for low level offences such as specialist leisure programmes, mentoring and life coaching, education and vocational training;

 

A final suggestion [cxiii] as regards the law is the incorporation of a reasonable adjustments test for AS and ASD as identified in part in R. (on the application of W). [cxiv] UK Law does contain a great many such tests (such as the Pritchard Criteria for fitness to plead[cxv] and the test for Mental Capacity[cxvi]) and developing and applying such a legal test may well help to ensure legal equality for individuals with AS and ASD. While this and the other suggested solutions may appear straight-forward and realistic, it is unclear whether there is currently sufficient political, economic or social motivation to implement these, thus potentially perpetuating the status quo in terms of inequality for individuals with AS and ASD.

 

 

Conclusions

This article has considered the question of whether the Equality Act 2010 ensures equality for individuals with AS and ASD in the legal arena. It looked at published legal cases and found so few cases as to make definitive conclusions difficult. Of the seven cases that were identified, few were won based on any specific violation of the Equality Act, although it may perhaps be argued that without this Act those that did win may otherwise have lost. While this Act may well be the change in law that, to re-quote Beardon, ensures the inclusivity of the conceptual legal framework, [cxvii] its application does not yet appear to have made a great impact and further exploration, analysis and understanding of the ever-expanding canon of case law is needed.

 

Thus, individuals with AS and ASD may well continue to experience sub-optimal treatment at the hands of the law, for, according to Beardon, [cxviii] Of critical importance is the question raised over the legal framework and whether it is, in fact, unlawful in potentially discriminating against individuals with AS by not taking their AS into account.

 

The findings presented in this article suggest that the Law may well still be potentially discriminating and not ensuring equality for individuals with AS, despite the introduction of the Equality Act 2010. Other factors are clearly important here, and the lack of definitive implementation of the National Autism Strategy remains a key omission. Perhaps future social and legal and other research will show that this has been remedied, and that the Equality Act 2010 will have exerted - and will continue to e



[i] Luke Beardon, Asperger Syndrome and Perceived Offending Conduct: A Qualitative Study (PhD Thesis, Sheffield Hallam University 2008) 178 <http://shura.shu.ac.uk/7155/1/Beardon_aspergers_-_full.pdf> Accessed 4 January 2014; it should be noted that as the current work will quote from a variety of legal and judicial sources, the OSCOLA (Oxford Standard for the Citation of Legal Authorities) referencing system will be utilised. Further details may be found at <http://www.law.ox.ac.uk/published/OSCOLA_4th_edn.pdf>

[ii] Beardon (n1) 204

[iii] See, for example, Russell Foster, What Theories of Asperger Syndrome Support or Undermine the Suggestion that Individuals with Asperger Syndrome are Likely to Break the Law? Unpublished Coursework, PostGraduate Certificate in Autism and Asperger Syndrome, Sheffield Hallam University (31 August 2013) and Nigel Archer and Elisabeth Ann Hurley, A Justice System Failing the Autistic Community (2013) 4(12) Journal of Intellectual Disabilities and Offending Behaviour 53

[iv] Equality Act 2010

[v] Department of Culture, Media and Sport and Government Equality Office, Equality Act 2010: Guidance (Gov.uk 27 February 2013) <https://www.gov.uk/equality-act-2010-guidance> accessed 5 January 2014

[vi] Bob Hepple, The New Single Equality Act in Britain (2010) 5 The Equal Rights Review 11. These nine statutes or statutory instruments are: 1) The Equal Pay Act 1970; 2) The Sex Discrimination Act 1975; 3) The Race Relations Act 1976; 4) The disability Discrimination Act 1995; 5) The Employment Equality (Religion or Belief) Regulations 2003; 6) Employment Equality (Sexual Orientation) Regulations 2003; 7) Employment Equality (Age) Regulations 2006; 8) Equality Act 2006; 9) Equality Act (Sexual Orientation) Regulations 2007

[vii] A summary of the contents of the Act may be found in appendix one.

[viii] Equality Act 2010 s6(1)

[ix] See, for example, United Nations Rule of Law, Measuring Effectiveness (2013) <http://www.unrol.org/article.aspx?article_id=32> (United Nations 2013) accessed 16 January 2014; Charles Tremper and others, Measuring Law for Evaluation Research (2010) 34(3) Evaluation Research 242

[x] Chris Phillips, The Equality Act 2010: Impact on mental health-related disability claims (2012) 109 Employment Law Bulletin 2

[xi] Ian Freckleton, Autism Spectrum Disorder: Forensic Issues and Challenges for Mental Health Professionals and Courts (2013) 26(5) Journal of Applied Research in Intellectual Disabilities 420, 420

[xii] Graeme Lockwood and others, The Equality Act 2010 and mental health (2012) 200 British Journal of Psychiatry 182

[xiii] Hans Asperger, Die Autistischen Pychopathen im Kindesalder (1944) 177 Archiv fr Psychkiatrie und Nervenkrankheiten 76

[xiv] Alison Knopf, Aspergers diagnosis disappears, will treatment disappear too? [2013] Behavioral Healthcare <http://www.behavioral.net/article/asperger-s-diagnosis-disappears-will-treatment-disappear-too> accessed 5 January 2014

[xv] NHS Choices, Asperger's not in DSM-5 mental health manual (NHS Choices 1 December 2012) <http://www.nhs.uk/news/2012/12December/Pages/Aspergers-dropped-from-mental-health-manual-DSM-5.aspx> accessed 7 January 2014

[xvi] Michael Fitzgerald, Loss of autism in DSM-V (2012) 201 British Journal of Psychiatry 74

[xvii] Mark S. Micale, On the Disappearance of Hysteria: A Study in the Clinical Deconstruction of a Diagnosis (1993) 84(3) Isis 496

[xviii] Ruth E. Taylor, Death of neurasthenia and its psychological reincarnation A study of neurasthenia at the National Hospital for the Relief and Cure of the Paralysed and Epileptic, Queen Square, London, 1870-1932 (2001) 179(6) The British Journal of Psychiatry 550

[xix] See, for example, Edward Shorter and John C. Marshall, A History of Psychiatry (Wiley 1997) and Joel Paris, Fads and Fallacies in Psychiatry (RCPsych Publications 2013)

[xx] See, for example, Kenneth Kendler, An historic framework for psychiatric nosology (2009) 39(12) Psychological Medicine 1935

[xxi] John E. Cooper, Pocket Guide to the ICD-10 Classification of Mental and Behavioural Disorders with Glossary and Diagnostic Criteria for Research (Churchill Livingstone 1999) 286

[xxii] Shilpi Sharma and others, Confusion and inconsistency in diagnosis of Asperger syndrome: a review of studies from 1981 to 2010 (2011) 16(5) Autism 465

[xxiii] Beardon (n1) 10

[xxiv] Eddie Chaplin and others Autism Spectrum Conditions and Offending: An Introduction to the special edition (2013) 4(1/2) Journal of Intellectual Disabilities and Offending Behaviour 1

[xxv] Kenneth J Weiss, Autism Spectrum Disorder and Criminal Justice: Square Peg in a Round Hole (2011) 32(3) American Journal of Forensic Psychiatry 3

[xxvi] Ann Browning and Laura Caulfield, The prevalence and treatment of people with Aspergers Syndrome in the criminal justice system (2011) 11(2) Criminology and Criminal Justice 165

[xxvii] See, for example, Paul Scragg and Amitta Shah, Prevalence of Aspergers Syndrome in a secure hospital (1994) 165 British Journal of Psychiatry 679; Dougal J Hare and others, A Preliminary Study of Individuals with Autistic Spectrum Disorders in Three Special Hospitals in England (National Autistic Society 1999); Leila Siponmaa and others, Juvenile and young adult mentally disordered offenders: The role of child neuropsychiatric disorders (2001) 29 Journal of the American Academy of Psychiatry and the Law 420

[xxviii] Browning and Calufield (n26)

[xxix] See, for example, Mark Woodbury-Smith and others, High functioning autistic spectrum disorders, offending and other law-breaking from a community sample (2006) 17(1) Journal of Forensic Psychiatry and Psychology 108; and, Svend Erik Mouridson and others, Pervasive developmental disorders and criminal behaviour: A case control study (2008) 52(2) International Journal of Offender Therapy and Comparative Criminology 196

[xxx] David Allen and others, Offending behaviour in adults with Asperger Syndrome (2008) 38 Journal of Autism and Developmental Disorders 748

[xxxi] See, for example, Fiona Godlee and others, Wakefields article linking MMR vaccine and autism was fraudulent (2011) British Medical Journal 342 1678; and Gregory A Poland, MMR vaccine and autism: vaccine nihilism and postmodern science (2011) 86(9) Mayo Clinic Proceedings 869

[xxxii] Paul Arnell and Alan Reid, Hackers beware: the cautionary story of Gary McKinnon (2009) 18(1) Information and Communications Technology Law 1

[xxxiii] Graham Arnold, UK-US extradition: the case of Gary McKinnon (2012) 67 Student Law Review 14

[xxxiv] Freckelton (n11)

[xxxv] Bernadette H Schell, and June Melnychuk. Female and Male Hacker Conferences Attendees: Their Autism-Spectrum Quotient (AQ) Scores and Self-Reported Adulthood Experiences Corporate hacking and technology driven crime: Social dynamics and implications (Information Science reference 2010) 144

[xxxvi] Weiss (n25)

[xxxvii] Asperger (n13)

[xxxviii] Kathrin Hippler and others, Brief report: No increase in Criminal Convictions in Hans Aspergers Original Cohort (2010) 40 Journal of Autism and Developmental Disorders 774

[xxxix] Steve Onyett and Helen Lester, Managing in Mental Health in Kieran Walshe and Judith Smith (eds), Healthcare Management (Open University Press 2006)

[xl] Department of Health, Health Service Circular 2001/016. Valuing People: A New Strategy for Learning Difficulty for the 21st Century: Implementation Guidance (Department of Health, 31 August 2001) <http://webarchive.nationalarchives.gov.uk/20130107105354/http://www.dh.gov.uk/prod_consum_dh/groups/dh_digitalassets/@dh/@en/documents/digitalasset/dh_4012281.pdf> accessed 16 January 2014

[xli] Department of Health, Valuing People Now: a new three year strategy for people with learning difficulties. Making it happen for everyone (Department of Health, 19 January 2009) <http://www.dwp.gov.uk/docs/dla-reform-andover-and-district-mencap-appendix-3.pdf> accessed 16 January 2014

[xlii] HM Government, Autism Act 2009 Explanatory Notes <http://www.legislation.gov.uk/ukpga/2009/15/notes> accessed 16 January 2014

[xliii] National Autistic Society, I Exist Campaign in England (National Autistic Society 9 May 2013) <http://www.autism.org.uk/get-involved/campaign-for-change/learn-more/our-campaigns/past-campaigns/i-exist/i-exist-campaign-in-england.aspx> accessed 16 January 2014

[xliv] Department of Health, Implementing Fulfilling and rewarding lives. Statutory guidance for local authorities and NHS organisations to support implementation of the autism strategy (Department of Health 17 December 2010) <https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/216129/dh_122908.pdf> accessed 16 January 2014

[xlv] Karola Dillenburger, and others, Awareness and knowledge of autism and autism interventions: A general population survey (2013) 7(12) Research in Autism Spectrum Disorders 1558

[xlvi] Nick Walsh and Ian Hall, The Autism Strategy: implications for people with autism and for service development (2012) 6(3) Advances in Mental Health and Intellectual Disabilities 113

[xlvii] Martin Knapp and others, Economic cost of autism in the UK (2009) 13(3) Autism 317

[xlviii] Marios Adamou, Hidden impairments, the Equality Act and occupational physicians 61(7) Occupational Medicine 453

[xlix] Westlaw UK, <http://legalresearch.Westlaw.co.uk> accessed 8 January 2014

[l] LexisNexis UK, <https://www.lexisnexis.co.uk/en-uk/home.page> accessed 8 January 2014

[li] Luca Anderlini and others, Statute Law or Case Law (2008) <http://econ.lse.ac.uk/staff/lfelli/papers/Common.pdf> accessed 18 January 2014

[lii] Richard A. Posner, Statutory Interpretationin the Classroom and in the Courtroom (1983) 50 Chicago Law Review 800

[liii] For example, the Mental Health Act 2007- as shown by the 59 cases found in a Westlaw search conducted on 18 January 2014 using the search phrase Mental Health Act 2007 between 19 July 2007 (when this Act came into force) and 19 October 2009 roughly the same period as considered in this article for the Equality Act 2010 (which came into force on 1 November 2010 and including cases as of 8 January 2014).

[liv] David Veale, The Department of Health and the Equality Act 2010 (2012) 201 British Journal of Psychiatry 75

[lv] Elizabeth Corker and others, Experiences of discrimination among people using mental health services in England 2008-2011 (2013) 202(s55) The British Journal of Psychiatry s58

[lvi] See, for example, Graham Thornicroft, Shunned: Discrimination against people with mental illness (Oxford University Press 2006)

[lvii] See, for example, David Anderson and others, Mental health service discrimination against older people (2013) 37(3) The Psychiatrist 98; and Caroline Bernard, Achieving age equality in health and social care (2013) 17 (1) Working with Older People 19

[lviii] See, for example, Jill Porter and others, Recognising the needs of every disabled child: the development of tools for a disability census (2011) 38(3) British Journal of Special Education 120; and Janet Read and others, Disabled children and their families: a decade of policy change (2012) 26(3) Children & Society 223

[lix] Robert C Butler and Jennifer M. Gillis, The impact of labels and behaviors on the stigmatization of adults with Aspergers disorder (2011) 41(6) Journal of Autism and Developmental Disorders 741

[lx] See, for example, R. (on the application of W) v Aylesbury Crown Court [2013] EWHC 3228 (Admin)

[lxi] As shown in a search conducted on Westlaw on 31 January 2014 using the search phrase discrimination and Asperger; this search only revealed some 30 results, the majority of which, after analysing the official case transcripts, were not directly relevant to the current discussion

[lxii] R. (on the application of W) n57

[lxiii] ibid [77]

[lxiv] ibid [79]

[lxv] As based on analysis of the cases identified in the current work (appendix four)

[lxvi] Hewett v Motorola Ltd [2004] I.R.L.R. 545

[lxvii] Goodwin v Patent Office [1999] I.C.R. 302

[lxviii] Chaplin (n24)

[lxix] Michael Fitzgerald and Aiden Corvin, Diagnosis and differential diagnosis of Asperger syndrome (2001) 7 Advances in Psychiatric Treatment 310

[lxx] Lisa Underwood and others, Prisoners with neurodevelopmental disorders (2013) 4 Journal of Intellectual Disabilities and Offending Behaviour 17

[lxxi] Marja-Leena Mattila and others, An epidemiological and diagnostic study of Asperger syndrome according to four sets of diagnostic criteria (2007) 46(5) Journal of the American Academy of Child and Adolescent Psychiatry 636

[lxxii] Stephan Ehlers and Christopher Gillberg, The epidemiology of Asperger syndrome (1993) 34(8) Journal of Child Psychology and Psychiatry 1327

[lxxiii] Lee A. Wilkinson, The Gender Gap in Asperger Syndrome: Where are the Girls? (2008) 4(4) Teaching Exceptional Children Plus 3

[lxxiv] Emanuel Schwarz and others, Sex-specific serum biomarker patterns in adults with Asperger's syndrome (2010) 16(12) Molecular Psychiatry 1213

[lxxv] Swan Housing Association Ltd v Gill [2013] EWCA Civ 1566

[lxxvi] Telchadder v Wickland (Holdings) Ltd [2012] EWCA Civ 635

[lxxvii] R (on the application of Islam) v General Medical Council [2013] EWHC 3763

[lxxviii] Parents of C v Stanbridge Earls School [2013] Eq. L.R. 304

[lxxix] P v Governing Body of A Primary School [2013] UKUT 154 (AAT)

[lxxx] Jill Peay, Fitness to Plead and Core Competencies: Problems and Possibilities (London School of Economics Law, Society and Economy Working Papers 2012) <http://www.lse.ac.uk/collections/law/wps/WPS2012-02_Peay.pdf> accessed 18 January 2014

[lxxxi] Nachum Katz and Zvi Zemishlany, Criminal Responsibility in Asperger Syndrome (2006) 43(3) Israeli Journal of Psychiatry Related Science 166

[lxxxii] Allen (n30)

[lxxxiii] Phillips (n10)

[lxxxiv] ibid.

[lxxxv] A crude attempt to determine the total number of cases on Westlaw and LexisNexis was made by undertaking a search on 8 January 2014 for cases using the search term case. On Westlaw this resulted in some 790,000 cases. For LexisNexis the total number of cases could not be determined using this method

[lxxxvi] Anthony Kearns, Forensic services and people with learning disability: in the shadow of the Reed Report (2001) 12(1) Journal of Forensic Psychiatry 8

[lxxxvii] Dennis Debbaudt, Autism, advocates, and law enforcement professionals. Recognising and reducing risk situations for people with Autism Spectrum Disorders (Jessica Kingsley 2002)

[lxxxviii] Barbara G Haskins and J. Arturo Silva, Asperger's Disorder and Criminal Behavior: Forensic-Psychiatric Considerations (2006) 34(3) Journal of the American Academy of Psychiatry and Law 374

[lxxxix] Smith (n68)

[xc] Gregory Sisk, The Quantitative Moment and the Qualitative Opportunity: Legal Studies of Judicial Decision Making (Book Review) (2008) 93 Cornell Law Review 8

[xci] Tremper (n9)

[xcii] Stephen A Smith, Comparative legal scholarship as ordinary legal scholarship (2012) 5(3) Journal of Comparative Law 331

[xciii] Ian Freckleton, Aspergers disorder and the criminal law (2011) 18 Journal of Law and Medicine 677

[xciv] Bartłomiej Kacper Przybylski. The Legal Framework as a Factor Generating Social Inequality: The Case of the Criminal Justice System in Dieter Eissel, Ewa Rokicka and Jeremy Leaman (eds), Welfare State at Risk (Springer International Publishing 2014)

[xcv] Searches were carried out on 18 January 2014 and failed to identify a single case in either Westlaw or Lexisnexis

[xcvi] Bethany J Brewin and others, Parental perspectives of the quality of life in school environments for children with Asperger Syndrome (2008) 23 Focus on Autism and Other Developmental Disabilities 242

[xcvii] Graham Cookson, Unintended Consequences: the cost of the Governments Legal Aid Reforms (Kings College London 2011) <http://www.kcl.ac.uk/campuslife/student/news/stories/UnintendedConsequences-FinalReport.pdf> accessed 18 January 2014

[xcviii] Jill Teagardin and others, Randomized trial of law enforcement training on autism spectrum disorders (2012) 6(3) Research in Autism Spectrum Disorders 1113

[xcix] See, for example, Nicholas Chown, Do you have any difficulties that I may not be aware of?' A study of autism awareness and understanding in the UK police service (2010) 12(2) International Journal of Police Science & Management 256; and Susan Young and others, The effectiveness of police custody assessments in identifying suspects with intellectual disabilities and attention deficit hyperactivity disorder (2013) 11(1) BMC Medicine 248.

[c] See, for example, Nigel Archer and Elisabeth Ann Hurley, A Justice System Failing the Autistic Community (2013) 4(12) Journal of Intellectual Disabilities and Offending Behaviour 53; Freckleton (n12)

[ci] Amanda D Heiderken and others, A survey of autism knowledge in a health care setting (2005) 35(3) Journal of Autism and Developmental Disorders 323

[cii] Kalpna Shah, What do medical students know about autism? (2001) 5(2) Autism 127

[ciii] Wee Bin Lian and others, General practitioners' knowledge on childhood developmental and behavioural disorders (2003) 44(8) Singapore Medical Journal 397

[civ] Ernst O Vanbergeijk and Oren Shtayermman, Asperger's syndrome: An enigma for social work (2005) 12(1) Journal of Human Behavior in the Social Environment 23

[cv] Meera Roy and Sivasankaran Balaratnasingam, Missed diagnosis of autism in an Australian Indigenous psychiatric population (2010) 18(6) Australasian Psychiatry 534

[cvi] Mary Langan, Parental voices and controversies in autism (2011) 26(2) Disability and Society 193

[cvii] Jaci C Huws and Robert SP Jones, Missing voices: representations of autism in British newspapers, 19992008 (2011) 39(2) British Journal of Learning Disabilities 98

[cviii] See, for example, Sandra C Jones and Valerie Harwood, Representations of autism in Australian print media (2009) 24(1) Disability And Society 5

[cix] Gregory A Poland and Robert M. Jacobson, The age-old struggle against the antivaccinationists (2011) 364(2) New England Journal of Medicine 97

[cx] Nigel W Crawford and Jim P. Buttery, Adverse events following immunizations: fact and fiction (2013) 23(3) Paediatrics and Child Health 121

[cxi] Nigel Archer and Elisabeth Ann Hurley, A Justice System Failing the Autistic Community (2013) 4(12) Journal of Intellectual Disabilities and Offending Behaviour 53, 58

[cxii] Archer and Hurley (n107) 56

[cxiii] This is a suggestion made by the author of this article

[cxiv] R. (on the application of W) n57

[cxv] R v Pritchard (1836) 7 C & P 303

[cxvi] Mental Capacity Act 2005 s3

[cxvii] Beardon (n1)

[cxviii] ibid, 204

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