I wrote about access to justice for disabled people in a petition update and wanted to expand on it a bit for others who may not be aware of how the lack of access to justice for disabled people in the Netherlands has affected this case.
Unique disability issues and trust
Many police and prosecution services are not aware of the unique issues that disabled people have to contend with. If my partner was not disabled, he would not be considered to be an easy target by a known con-man. The statistics show that criminals go after those they perceive as being vulnerable, which include the disabled, the young, and the elderly, at much higher rates than the rest of the population – sometimes 30% higher or more, depending on the crime.
If my partner was not disabled he would not need to put his trust in a caregiver. He would have never needed anyone to go to the bank with him, and he certainly would not have been open to the manipulations of a caregiver. People being paid to be caregivers have a higher responsibility to respect disabilities and should there be any question of who to believe in a situation where a caregiver and a disabled person give differing accounts, the disabled person must be listened to and believed. This is much like the situation of domestic violence, and disabled people need to be heard before all others when it is a matter of their well-being and safety.
Anyone trained in the basics of disability should be able to recognise both of these points and deal with them appropriately.
Specific disability issues
Although my partner is very intelligent, strokes affected some of his cognitive abilities, especially when it comes to the ability to plan and organize and make good judgements. These are also known as executive functions. The caregiver who did this had worked with my partner for more than 1½ years and was well aware of my partner’s limitations. He knew this well enough to know how to manipulate my partner, which was a constant reason for my lack of trust towards this caregiver. Many times he seemed almost proud of how he manipulated my partner, and I told him many times in no uncertain terms to STOP! Unfortunately, my partner did not understand this, and wanted to keep on working with him. Specifically, the caregiver planted idea’s into my partner’s mind that he needed to keep his money safe, and that only he was able to do that for him.
My partner also has speech issues and tires easily, especially with a lot of questions. On this the police were overall very good, and after the very difficult initial visit to the police station, they agreed to do the rest of the questioning at our home. Even then, I don’t think they or the prosecution understand that when my partner is tired, he is not able to concentrate for more than about 15 minutes on questions. Often he will give an answer based on how a question is asked. If that is an answer that a police agent suggested, he will agree to it whether it is accurate or not. This happened many times in the questioning of my partner, and I was constantly needing to correct it based on my own questioning of what happened that I had done in a more appropriate way.
Anyone trained in the basics of strokes should be able to recognise both of these points and deal with them appropriately. If they do not have basic knowledge, but have been provided with all medical information, they should at least respect the input of others who are more familiar with it, and deal with it appropriately.
Effects of the medication
By the nature of what the caregiver did to my partner with the medication overdose, it would be impossible for my partner to give a clear and accurate account of what happened in the time around the medication overdose. The police seemed confused about this, and I believe that it affected their decisions. The medication that was administered, midazolam (trade names Dormicum, Hypnovel and Versed), is a powerful drug that induces sedation and amnesia. To give some perspective, it is one of the drugs that contributed to the death of Michael Jackson.
The police seem to have believed the caregiver when he told them he did not understand the use of the medication, despite us having proof that he was provided information. The police also seem to think my partner in some way gave permission for the medication to be used. I never used the trade name with this medication with the caregiver. On the night of the overdose the caregiver wrote on his Facebook page about giving an overdose of medication using the common trade name in the Netherlands, which is Dormicum. This directly contradicts what he told the police about not understanding the medication. As far as my partner giving permission to use the medication, he was not able to pronounce the generic name and did not know the trade name, so I know that he did not give permission to the caregiver to use it.
Again, anyone trained in the basics of drug-induced amnesia medications should be able to recognise this point and deal with it appropriately. If they do not have the basic knowledge, but have been provided with all medical information, they should at least respect the input of others who are more familiar, and deal with it appropriately.
Lack of Dutch discrimination laws
It is clear that both the police and prosecution do not understand the basics about dealing with somebody with a disability. Rule number one is to err on the side of caution with the victim, rather than the manipulations of the suspect. The suspect in this case had ample time to prepare their crime and also the cover-up. My partner as the victim had no time to react to it or the handling by the police and prosecution.
Article 1 of the Dutch Constitution states that all people have to be treated the same way and it is forbidden to discriminate due to disability or chronic illness. This should be covered under The Equal Treatment, Handicapped and Chronically Ill People Act (Wet gelijke behandeling op grond van handicap of chronische ziekte Wgbh/cz), but unfortunately, it is not.
I have tried to lodge a complaint of discrimination at the Dutch College of Human Rights (College voor de Rechten van de Mens), but it is not possible because the discrimination does not fit the narrow definition of the Act on equal treatment on the grounds of disability or chronic illness (Wgbh/cz), which is limited to: Employment, Trade union membership, Education, Residence and Public transport. There is nothing about protecting the legal rights of a victim of crime.
EU Directive 2012/29/EU85 establishes minimum standards on the rights, support and protection of victims of crime. The Member States have to comply with this Directive by 16 November 2015. Recital 9 states that victims of crime should be recognised and treated in a respectful, sensitive and professional manner without discrimination of any kind based on any grounds such as disability.
Convention on the Rights of Persons with Disabilities (CRPD)
In order to deal with the specific issues of access to justice for person with disabilities, the UN has adopted the Convention on the Rights of Persons with Disabilities (CRPD). Part of the convention is to ensure justice for a situation like my partner’s, and to make sure that disabled people are not discriminated against when it comes to access to justice. The CRPD also requires training for police and others involved in the administration of justice.
Article 13 – Access to justice
1. States Parties shall ensure effective access to justice for persons with disabilities on an equal basis with others, including through the provision of procedural and age-appropriate accommodations, in order to facilitate their effective role as direct and indirect participants, including as witnesses, in all legal proceedings, including at investigative and other preliminary stages.
Artikel 13 Toegang tot de rechter
1. De Staten die Partij zijn waarborgen personen met een handicap op voet van gelijkheid met anderen de toegang tot een rechterlijke instantie, met inbegrip van procedurele en leeftijdsconforme voorzieningen, teneinde hun effectieve rol als directe en indirecte partij, waaronder als getuige, in alle juridische procedures, met inbegrip van de onderzoeksfase en andere voorbereidende fasen, te faciliteren.
Another part of the convention is to ensure that when exploitation or violence occur, as in what happened to my partner, that they are properly investigated and prosecuted. The Dutch Criminal Code (Wetboek van Strafrecht) does not include anything about exploitation of persons with disabilities.
In most developed countries, crimes to vulnerable people are handled more seriously than when they happen to the general population. For some reason, it appears that in the Netherlands the situation seems to be in reverse, with the caregiver being protected before the victim for negligence/abuse (medication overdose), exploitation (theft of money) and retaliation (poisoning of the dogs).
Article 16. Freedom from exploitation
5. States Parties shall put in place effective legislation and policies, including women- and child-focused legislation and policies, to ensure that instances of exploitation, violence and abuse against persons with disabilities are identified, investigated and, where appropriate, prosecuted.
Artikel 16. Vrijwaring van uitbuiting, geweld en misbruik
5. De Staten die Partij zijn implementeren doeltreffende wetgeving en doeltreffend beleid, met inbegrip van wetgeving en beleid, specifiek gericht op vrouwen en kinderen, om te waarborgen dat gevallen van uitbuiting, geweld en misbruik van personen met een handicap worden geïdentificeerd en onderzocht en, indien daartoe aanleiding bestaat, waar aangewezen, strafrechtelijk worden vervolgd.
The Netherlands has signed the convention, but have still not ratified it. This means that it is not yet in force in the Netherlands. The Netherlands is well behind most other countries in Europe (the EU ratified it in 2010) when it comes to laws to protect disabled people. The reason that the Netherlands has not ratified it all comes down to a matter of money. To read more about this in Dutch, please see Nederland en het Verdrag inzake de rechten van personen met een handicap.
Lack of protocols, guidelines and training
Along with ensuring justice for disabled people, the UN convention and EU Directive on disability rights provide guidelines for both the police and prosecution services for understanding how to deal with this very complex situation. I suspect that it is lack of awareness more than anything that has caused such an extreme lack of justice. It is complicated, but we need the authorities to understand it in order to have justice.
Anything short of that is discrimination against disabled people. Accepting that is to accept that the laws of the Netherlands are not there to protect all, without discrimination because of disability!
Status of the Convention on the Rights of Persons with Disabilities (CRPD)
If you are interested in this topic in the Netherlands, see mensenrechten.nl, coalitievoorinclusie.nl, NLvooriedereen.nl, iederin.nl and vnverdragwaarmaken.nl (Dutch).
