After Winterbourne View: the untapped potential of Article 8 – Lucy Series

1 August 2011 by

Since BBC Panorama revealed shocking abuse of adults with learning disabilities in a private hospital run by Castlebeck Care Ltd, the care sector has engaged in widespread soul searching. 

Paul Burstow instructed the Care Quality Commission (CQC) to carry out a national audit of all hospital services for adults with learning disabilities.  Similar national audits were conducted following previous scandals relating to widespread abuse of adults with learning disabilities in Cornwall (here and here).  In the CQC’s preliminary report on other Castlebeck services they expressed serious concerns about compliance with essential standards of quality and safety.

The human rights issue that stand out most powerfully in these reports is the widespread interference with patients’ autonomy and privacy.  Take these finding from the report on Arden Vale, for instance:

–        All patients’ mobile telephones were confiscated on entry into the hospital;

–        Staff placed an arbitrary limit (11) on the number of cigarettes patients could smoke each day;

–        Patients’ prized possessions were removed as punishment for ‘bad’ behaviour;

–        The atmosphere in bedrooms and communal areas was described by CQC as ‘stark’;

–        Bedroom doors were kept locked, so patients had to ask staff to let them into their own rooms – no patients were allowed to hold keys;

–        All bedroom doors sounded alarms when opened or closed – CQC expressed concern that the volume of these alarms might disturb patients during the night.

–        During meals, all residents were locked in the dining room; then they were taken to the lounge and locked in there.

–        Residents were allowed drinks only at ‘permitted’ times;

–        Over-use of restraint and poor monitoring;

–        All visitors had to make an appointment with staff first. CQC witnessed an advocate being refused permission to visit a patient on the basis that they were currently involved in activities.  There were no activities that day.

None of these restrictions were subject to policies or individual risk assessments.  These are the choices the CQC observed being made available to patients: the choice to have a lie-in in the morning; the choice of what food to eat; the choice of what to wear.

The preceding description reads like Goffman’s ethnography of Asylums in the 1950’s.  The unchecked potential (indeed, the actuality) for abuse of power by staff is overwhelming; and the potential for flourishing of personality, for maintenance of personal relationships, for autonomy and private life, is stultified.

The CQC’s report coyly shies away from indicating whether there were any patients who were unlawfully deprived of their liberty, with none of the legal safeguards required under Article 5.  In any case, as the steady trickle of claims from prisoners show, detainees do not leave their other rights at the door.  These settings seem, to me, to be crying out for the application of Article 8.

I could find only two examples of the use of Article 8 to tackle these kinds of issues.  The first was the attempt of detained patients in Nottinghamshire Healthcare NHS Trust to overturn a smoking ban in the hospital, on the basis that it was their home (R (N) v Secretary of State for Health [2009] EWCA Civ 795).

The second was a Scottish case, Lyons v Board of the State Hospital [2011] ScotCS CSOH_21, where patients in the state hospital challenged a policy that banned their visitors from bringing them food gifts and the patients from ordering takeaway.  Both cases, ultimately, were unsuccessful, but importantly the court emphasised the issues were not trivial. In Lyons the judge stated:

For inmates of the state hospital, the freedom to receive food parcels from visitors and to make purchases from an external source are some of the few areas in which they may exercise some sort of personal autonomy or choice.

In both instances the courts found the interferences were in pursuit of a legitimate aim under Article 8(2) – the protection of health.  These outcomes were disappointing, but they represent a foot in the door that may allow care service users to use Article 8 to challenge these kinds of unnecessary and unjustified interferences.

As earlier national reports show these issues are both widespread and longstanding, but whilst we see a relatively high number of Article 8 challenges from prisoners, we see very few from within the care sector.  Part of the reason may be found in the CQC’s report itself:

The closed and controlling nature of the regime operated at Arden Vale and the communication difficulties experienced by some people limited their ability to express concerns and in the case of relatives and advocates, to identify concerns

The very nature of the user group, and the controlling nature of the services, make it extremely difficult to bring these concerns to light.  Potential claimants may also have difficulty accessing legal aid; the courts may not regard their plight as ‘trivial’ but it is entirely possible the Legal Services Commission might.

A serious obstacle may also be found in the structure of the Human Rights Act 1998 (HRA) itself; many services that interfere with Article 8 rights may not be ‘public authorities’ in the meaning of the Act.  It is a common misconception that s145 Health and Social Care Act 2008 remedied the unfortunate decision by the House of Lords in YL v Birmingham City Council (2007) that private care homes were not ‘public authorities’ bound by the HRA.

In fact, the s145 amendment only applies to people placed in private care homes under the National Assistance Act 1948.  Anyone who is privately funded or who is NHS funded would be excluded from its scope.  Section 145 also excludes any private domiciliary care services, supported living services, and care services for under 18’s.  I have written about the ‘meaning of public authority’ issues in social care in more detail here.

Recalling the national outcry to the House of Lords ruling in YL v Birmingham City Council, it is disheartening to learn that this mechanism is very little used.  More work remains to be done to ensure better access to justice for these vulnerable groups.

Lucy Series is researching mental capacity and human rights in community care settings for her doctoral thesis in law.  She writes a blog at The Small Places.

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  1. Tim says:

    I suspect that part of the problem is that many people – especially professionals, subconsciously see disabled people as subordinate and therefore having limited locus standi!

    I’ve experienced this first hand, albeit not in a care situation – no-one will take me seriously unless a non-disabled third party advocates on my behalf.

  2. susan says:

    Whilst Paul Burstow has had to react to the outrage of the Panorama programme on mentally handicapped adults not enough is done about mental health patients as well who are hugely abused by being plied with one powerful mind-altering drug after another against their wishes which renders them incapable of doing anything whatsoever. What if these drugs do not work. Once on these drugs you cannot just come off them you need specialist help to do so and this is not on offer and patients have a human right. I have witnessed someone become violent from being plied with one thing after another. I have seen patients begging to be reduced/come off them but they are ignored by the so-called experts. Psychiatrists have too much power and abuse peoples human rights. There are no facilities over here like Soteria offer. Only in Finland, Denmark and a few other locations do they recognise that mental health patients should have a choice. There is none of that over here and Paul Burstow’s office does not want to get involved in individual cases and the CQC have only limited powers. What is the point of NICE – there are too many organisations that have too little power to intervene in really shocking cases. There is going to a be a TV programme soon and I hope I get asked to go on it because I have plenty to say about the subject and the abuse that is going on to patients by so-called professionals both doctors and even social services who try to persuade a patient who has already said “No” to trying another harmful so-called medication. The person I know is drugged up to her neck on this awful stuff and begging to come off it but no-one listens – instead they want to increase the dosage of something that does not work or else experiment with something else. That is all that is on offer in this Country – chemical abuse. Also I would advise anyone to get their medical files if under the mental health as you might find there is more than one diagnosis by these so-called professionals.

  3. Steve C says:

    This a really interesting post and food for thought for adult safeguarding teams up and down the country. I think that adult social care needs to consider Article 8 much more explicitly, from both sides of the fence.
    Munby LJ has made some very clear statements in recent Court of Protection judgments (and also some speeches) about the limits of the power of the state to intervene in people’s private lives (in particular those people who lack mental capacity) without the assistance of the Court, but he also made it clear that there is a positive obligation to investigate, where a private individual or individuals may be infringing a person’s rights, and bring the case before the Court, if necessary.
    In that case he was referring to Article 5 right to liberty (interesting your comment about how CQC ducked that in their Castlebeck report), but does this mean that local authorities could not use Article 8 concerns, unless they were themselves commissioning the care in a care home? What about private funders, supported accommodation, NHS-funded care. Adult safeguarding responsibilities still apply, but not HRA?
    Also, article 5 rights seem to have been explicitly included for privately and NHS funded individuals in care homes through the Mental Capacity Act Deprivation of Liberty Safeguards.

  4. Lucy says:

    Thanks very much for your comment.

    Yes, I think the case you’re referring to was R. v Leonard Cheshire Foundation (a charity) & Anor [2002] EWCA Civ 366, but the ruling in YL v Birmingham City Council is more recent and a higher authority (as House of Lords).

    You ask “Does the exemption from HRA of privately owned institutions provide an additional incentive for governments to privatise as many organisations as possible so as to avoid HRA compliance”. Well, I think it’s very hard to attribute clear intentions to governments, but we can say that the Labour government specifically drafted the HRA to cover privatised public functions, and they were irked by the Lords’ ruling. I think some individuals within parliament may see the HRA as ‘red tape’ to be avoided, but I doubt they’d openly express this view in relation to the sensitive area of care homes.

    I think the court thought they were taking a functional approach in the YL v Birmingham City Council ruling; it’s just they viewed the core public function to be ‘arranging’ rather than ‘providing’ care. On which reasoning, the local authority ‘arranged’ the care (so was bound by the HRA) whilst the care home merely ‘provided’ it (and so were not). In my view there are many weaknesses in the reasoning used in the ruling; far too numerous to list in a comments section though…

  5. Stephen says:

    This is an excellent posting.

    With regards to the meaning of public authority, was there not a case concerning Leonard Cheshire Homes where the residents invoked HRA but which action failed on the ground that Leonard Cheshire Homes was not a public authority? This despite the organisation performing a public function.

    Does the exemption from HRA of privately owned institutions provide an additional incentive for governments to privatise as many organisations as possible so as to avoid HRA compliance? If so, the Judiciary should take a functional approach as distinct from a institutional approach when considering the scope of HRA. I believe, in this context, that HRA applies to the Water supply companies even though they are privately owned. This is because their public function is obvious (maintenance of public health etc). I believe the water companies reduce their water supply to a trickle to customers who have defaulted with their payments. Presumably because switching the water off completely might breach the Right to Life protocol contained by the HRA.

    The point about institutional care and abuse of power is very well made. Institutions can resemble totalitarian regimes; the natural rights of inmates being subordinated to the comfort and convenience or other interests of the staff and owners. The regulator of care institutions, like most UK regulators (Press Complaints Commission, FSA, Ofsted [see Baby P], OfGen, etc) is almost useless. So-called Regulatory Capture may be the cause. For instance, the job description of inspectors for the Care Quality Commission requires inspectors to have the skills to form (warm) relationships with those running care homes. What nonsense! Inspectors should visit these care homes with all guns blazing and should be highly confrontational. There should be a presumption of guilt and the burden of proof should be on the owners and staff to show the home is being run properly and the rights of inmates are being respected. This approach is more likely to be effective in protecting the rights and interests of the (usually) most vulnerable people in society.

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