After Winterbourne View: the untapped potential of Article 8 – Lucy Series
1 August 2011
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  EWCA Civ 795).
The second was a Scottish case, Lyons v Board of the State Hospital  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.
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