I watched Panorama’s exposé of institutional abuse of adults with learning disabilities at Winterbourne View Hospital with mounting horror. What legal mechanisms were available to prevent abuses like this, or bring justice to victims?
There can be little doubt that the acts of the carers towards the patients were inhuman and degrading, a violation of their Article 3 rights. It is highly questionable whether the establishment fulfilled their rights to privacy and dignity under Article 8, the right to private and family life.
The footage was filmed in a private hospital run by Castlebeck. This would be a functional public authority under s6 Human Rights Act 1998 (HRA) following the decision in R(A) v Partnerships in Care (2002). The actions of the hospital authorities could therefore be subject to judicial review proceedings under s7 HRA in addition to any other civil claims the victims might decide to bring. However institutional abuses do not only occur in hospitals.
In Cornwall in 2006 widespread abuse of adults, of a very similar character to that shown in Panorama, was found in inpatient ‘treatment centres’, but also in supported living services (see report). Those services were NHS run, but privately run supported living services may not be functional public authorities under the s6 HRA. In YL v Birmingham City Council (2007) private sector care homes were found not to be functional public authorities.
Following a public outcry over this ruling the government amended the law. Under s145 Health and Social Care Act 2008 care homes providing services for people placed under the National Assistance Act 1948 are exercising functions of a public nature under the HRA. Services arranged under the provisions of other acts, self-funding placements, or care delivered through domiciliary care agencies are not covered by this amendment, and thus may not be subject to judicial review. Civil claims in these cases may have to rely on the provisions of the common law.
It is possible that the Article 5 rights of patients at Winterbourne View may also have been violated. The most recent report of the Mental Health Act Commission stated that 13 patients were detained under the Mental Health Act. It is an open question – but one that I hope is taken up by the CQC and local authority when they conduct their investigation – whether any other ‘voluntary’ patients there were unlawfully detained.
Following the Bournewood judgment and the recent ruling in P & Q (2011), confinement without capacitous consent to hospitals designed for detention is likely to be a deprivation of liberty. If patients were de facto detained, outside the provisions of the Mental Health Act or the Mental Capacity Act deprivation of liberty safeguards, there may be a case to answer for unlawful detention or false imprisonment. Even if patients were detained under the DoLS, further questions may be asked as to whether the detention was in their ‘best interests’ and whether any conditions of authorisation were complied with.
Any civil claim may decide to include the commissioning body in proceedings, if it is felt they breached their positive obligations to protect the rights of those they placed in the service. The majority of placements were likely to have been commissioned and funded by local authorities or PCTs, and they will share some degree of responsibility for ensuring their rights are protected.
It is an interesting question whether civil proceedings might also be brought against the Care Quality Commission, particularly in view of the fact they failed to inspect the service after they received several warnings about abuse from former staff there and the local authority themselves. The CQC acknowledged this was an unforgiveable error of judgment and apologised. In a wider context, many are concerned that the decline in CQC inspections will put care service users at risk.
This may also have implications for the UK’s compliance with OPCAT, which requires regular visitation of places of detention to prevent inhuman or degrading treatment. This case does raise questions about the accountability of the CQC as a public authority with responsibilities under the HRA, although bringing a case would almost certainly require development of a doctrine of positive obligations of regulators themselves. No doubt in the majority of cases it would be extremely difficult to prove any liability of regulatory bodies, but perhaps it might be possible if the courts concurred that this was a clear error of judgment.
The police are investigating what occurred at Winterbourne View for criminal offences. In addition to possible crimes of assault and other offences against the person, the police may also consider prosecutions for the new offence of ill treatment or neglect of a person who lacks mental capacity under s44 Mental Capacity Act 2005, or ill treatment of patients under s127 Mental Health Act 1983. When considering whether acts of restraint were lawful, the police should take into account s6 MCA – this codifies the common law defence of necessity. Restraint is only lawful if it is believed to be necessary, and is proportionate to the likelihood and severity of the harm that would be suffered otherwise.
Whilst I hope that prosecutions will be brought wherever possible, it should be acknowledged that in situations like this without the presence of a Panorama crew it can be extremely difficult to get justice through criminal law. Despite an extensive police investigation into the Cornwall abuse case, no prosecutions were ever brought. In part this was because the limitation period had expired for many offences, but it was also because the police struggled to satisfy the evidential test. I have written elsewhere about why it can be very difficult to secure convictions for abuse of people in care settings, especially if they have cognitive disabilities.
As Lord Hoffman has noted, human rights instruments were developed against a backdrop of a moral and political philosophy of man as an independent and self-reliant agent. For people with cognitive disabilities in institutional care this assumption may not hold true, and we should be careful not to fetishize criminal prosecutions and judicial review as adequate or sufficient methods of human rights protection.
To that end, instruments may need to be adapted to ensure the rights of people who will have especial difficulty giving evidence in criminal cases, or instructing a solicitor to bring a civil claim, are upheld. The safeguards in the Mental Health Act and the deprivation of liberty safeguards should, in theory at least, go part way towards that. The positive obligations of organisations involved in the provision, commissioning and regulation of care will also have an important role to play.
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