The meaning of 'public authority' and Article 5 - just a lawyer's puzzle?

Recently I have been wrestling with a particularly knotty legal puzzle concerning the relationship between the Mental Capacity Act 2005 (MCA) and the meaning of ‘public authority’ under s6 Human Rights Act 1998 (HRA).  The issue is that the protection afforded by the MCA is essentially parasitic on existing law; thus where there are gaps in the protection of the existing law, there will be gaps in the protection potentially offered by the MCA.  This is because the Act does not create any new rights, torts or offences (bar the s44 criminal offence of wilful ill-treatment or neglect), but codifies a ‘general defence’ that protects carers and professionals against liability or prosecution for acts in connection with care and treatment of people who lack capacity.

3. Ongoing uncertainty over the meaning of 'deprivation of liberty'

This post is the second in a series of three posts on the lawful use of restraint, and its relationship to deprivation of liberty.  It relates to the rulings in C v A Local Authority (2011) (Re C) and Cheshire West and Chester Council v P (2011) (Re P). The first post was on the importance of recognising restraint where it is occurring. The second post was on the expanded legal guidance set down by the Court of Protection on the use of restraint under the Mental Capacity Act (MCA).

As Allan Norman comments in Community Care, the cases show, along with Steven Neary v Hillingdon Council, ‘the manifold devious ways in which attempts are made to deprive of liberty without proper scrutiny are still a problem, 800 years after Magna Carta.’  The manipulative behaviour of Hillingdon Council in the Neary case, and the misconduct of employees of Cheshire West & Chester Council in Re C do rather suggest that local authorities were fairly consciously attempting to avoid proper scrutiny; and I don’t doubt that this problem may be significantly more widespread.  But I wonder also how far these situations are arising as a result of genuine confusion, or perhaps  exploitation of legal uncertainties in the evolving meaning of 'deprivation of liberty' in Court of Protection case law.

2. Lawful restraint requires adherence to 'best practice' guidance

This post is the second in a series of three posts on the lawful use of restraint, and its relationship to deprivation of liberty.  It relates to the rulings in C v A Local Authority (2011) (Re C) and Cheshire West and Chester Council v P (2011) (Re P). The first post is on the importance of recognising restraint where it is occurring. The final post is on the evolving meaning of deprivation of liberty in Court of Protection case law.

The MCA has often been praised for its succinct and elegant construction (such praise, obviously, does not extend to the deprivation of liberty safeguards), and the provisions on restraint are a case in point.  The MCA does not create any new torts or offences of ‘unlawful restraint’[1]; instead it codifies a general defence against criminal charges or litigation for acts which would otherwise be a breach of a person’s common law or statutory rights.  In order to apply this defence, Section 5 MCA requires that a person takes steps to establish whether P has capacity in relation to any act in connection with care and treatment, and if they lack capacity any acts done must be in P’s best interests.  Section 6 MCA places further conditions upon the lawful use of restraint: it must be believed to be necessary to prevent harm to P, and it must be a proportionate response to the likelihood and severity of the harm that would befall P without restraint.  The general principles of the MCA further refine the conditions under which this defence can be applied, in particular that before an act is done ‘regard must be had to whether the purpose for which it is needed can be as effectively achieved in a way that is less restrictive of the person's rights and freedom of action’ (MCA s1(6)).

1. Recognising restraint: The dangers of euphemistic language

This week two further judgments were published relating to unauthorised, unlawful, deprivation of liberty. The rulings in C v A Local Authority (2011) (Re C) and Cheshire West and Chester Council v P (2011) (Re P) both give extensive consideration to the legal boundaries on the use of restraint, and the relationship of restraint to deprivation of liberty. The ruling in Re C related to an eighteen year old man with learning disabilities and autism in a residential school. The judgment particularly focussed on the school’s use of seclusion as a response to his ‘challenging behaviour’ and his nakedness, as he would often remove his clothing. The ruling in Re P related to a thirty-eight year old man with Down’s syndrome and cerebral palsy, in a small residential care setting [1]. The judgment particularly focussed on the use of restraint and restrictive measures to address P’s incontinence, and his dangerous practice of putting pieces of torn up, soiled, incontinence pad in his mouth. 

The ruling in Cheshire West and Chester Council v P [2011] has received a fair amount of attention as local authority employees were implicated in misconduct through re-writing care records after a hearing to conceal levels of usage of restraint. However, my feeling is that in the longer term the ruling in C v A Local Authority may have more important consequences, as it sets out high, and far reaching, standards for the lawful use of restraint and seclusion under s6 MCA. The case was picked up on by the Independent, who are giving quite extensive coverage to issues relating to deprivation of liberty in care settings.  To avoid this post becoming excessively long, I've broken it up into three shorter posts.  The first post is on how both cases highlight the importance of recognising and acknowledging the use of restraint and seclusion through correct language and procedures.  The second post is on the guidance set out by the Court of Protection in both these cases on the lawful conditions for the use of restrictive measures. If you read only one post, read the second one, as the headline of these cases should be that following the ruling in Re C, good practice guidance on the use of restraint and seclusion - including the Mental Health Act 1983 (MHA) code of practice - may have new legal force behind them in schools and community care settings.  The third and final post will return to consider the ambiguities and contradictions in the evolving meaning of 'deprivation of liberty' in Court of Protection case law.

The dangers of euphemistic language

A common theme across both cases was a failure by care staff, service providers and commissioners of care, to acknowledge that certain acts and practices amounted to restraint or seclusion. "Restraint" tends to be associated with detaining institutions, rather than community based care settings, and yet we know it occurs in both.  In 2007 CSCI conducted some qualitative research on restraint in the care of older people (Rights, Risks and Restraint), and they note a lack of clarity and consensus over the meaning of restraing (section 5.3).  Because my research is socio-legal, I tend to think of restraint in terms of the criteria set out in s6(4) Mental capacity Act, as the use, or threat of use, of force 'to secure the doing of an act which P resists' or restricting P's 'liberty of movement, whether or not P resists'.  The approach taken by CSCI is in many ways broader than this, and may well be preferable.  They ask, for instance, whether forms of monitoring (e.g. CCTV, or tagging people), or medications that change people's behaviour, might also amount to restraint.  Certainly I would imagine both of these examples would engage (at least) Article 8 of the European Convention on Human Rights, and it seems to me that with creative use the Court of Protection could expand the meaning of s6 MCA to accommodate these cases - although I'm not aware of it doing so as yet (except under the broader 'best interests' remit).  In any case though, CSCI give examples of services restricting individual's liberty of movement, or coercing them into acts which they resist, which are not recognised by staff as restraint.  Where restraint is not correctly identified, calling upon providers and commissioners to acknowledge and treat restrictive practices as acts of restraint may elicit as surprised a response as the fabled fish who is asked ‘how’s the water?’  

In the case of P, care staff regarded forcible sweeps of P’s mouth (to prevent ingestion or choking upon incontinence pads) as as ‘first aid’ rather than restraint [31].  Consequently such interventions were not well documented, nor did it occur to services that they might stand in need of a policy to ensure practices were always lawful. The statement of H, the Head of Operations in Adult Social Care at Cheshire West and Chester Council, said: 

‘...support staff seem to think that physical restraint is somehow "a bad thing" that should be avoided. This in part is due to a confusion of language between the Court and care staff. They perceive physical intervention as an action to prevent someone from hurting themselves or others as part of the wider care and support plan. The Court seems to me to define it more broadly as any hands on care. ‘ [37]

It’s not especially clear from H’s statement whether he himself recognises that ‘hands on care’ that is restrictive of liberty, that secures the doing of acts that service users resist, are forms of restraint. The care provider’s general ethos that restraint is ‘bad’ seems to have come – intentionally or otherwise – from a perceived policy of ‘no restraint’ by the local authority [16] (although there appears to have been confusion as to whether the local authority had “a no restraint policy” or simply “no restraint policy” [22]). Interestingly, in the context of discussing their policy on restraint the local authority referred to a document called ‘Guidance to Staff on Violence in the Work Place’, which discursively situates restraint in the context of a response to violent aggression. In my, admittedly incomprehensive, experience of working in social care, the belief that acts only amount to restraint if they are a response to violent aggression is quite common.

Discussions in Re C surrounded the use of seclusion.  The court heard that C was regularly confined to a secured, padded room known as the ‘blue room’. The room was said to have been designed by an autism adviser [22], and was said to have ‘a calming influence’ on C [3]. Although C would at times enter the blue room of his own accord, staff would prevent him from leaving it if he was aggressive, or undressed [4]. The experts and the court expressed concern that terminology was disguising the true use of the ‘blue room’ for seclusion; the consultant psychiatrist said: 

‘The term 'blue room' has no meaning or purpose, except that by naming it by its colour rather than purpose, it avoids people having to think about what is its purpose and what regulations govern its use. In this case it disguises the fact that the room is being used for many purposes and to the extent that one of its purposes is a seclusion room that alternative terminology would be contrary to the MHA 1983 Code of Practice paragraph 15:44. The blue room is the management method used to deal with C's aggression while also being used by C as a safe place: which purposes are arguably ethically incompatible.’ [77]

The use of the ‘blue room’ will be the subject of future hearings, considering whether it violated C’s Article 3 and 8 rights. The case touches upon fairly harrowing evidence of conditions within it, but does not draw any firm conclusions pending the future hearing. The mother’s evidence was that ‘there is frequently an acrid and pungent smell of faecal matter in the vicinity of the room which is overpowering in the room itself’ and she has ‘seen evidence of him urinating and defecating in the blue room, which does not contain a toilet facility and engaging in distressing behaviours including the smearing and eating of his own faeces’ [22]. The description is reminiscent of concerns raised by the CQC in their most recent State of Care report that conditions in seclusion rooms in psychiatric wards could violate patients’ dignity and privacy (p23). There is also a suggestion by the experts that the use of seclusion may have caused psychological damage [95]. The local authority deny this [28]. 

In their defence, the local authority cited Ofsted reports that stated that the school met the needs of pupils and comments, but that ‘one young person chooses to use a seclusion room excessively’ [27]. The local authority conceded, however, that Ofsted’s discussion of the use of the seclusion room was ‘a mild response to an extraordinary situation and was an analysis lacking in rigour’. There is a stark contrast between the evidence of the mother and the experts on the conditions within the blue room, and the euphemistic language of the local authority as a ‘safe place’ with a ‘calming influence’. It’s interesting to note that Ofsted’s own use of language on this matter has an inherent structural tension: they explicitly described it as a seclusion room, rather than a ‘safe place’, but rather oxymoronically referred to P as ‘choosing’ to use it. The very definition of seclusion is that even if entry into a confined space is by choice, remaining within it is not.  The case raises yet further questions as to how attuned regulators within the care sector are to human rights issues.

In both cases the use of restrictive physical practices were obscured by euphemistic language: the 'blue room' or 'first aid'.  This in turn meant that in Re P, there was no policy on the use of restraint, nor was it documented properly, nor was there appropriate care planning and risk assessments surrounding its use.  In Re C, descriptions of the 'blue room' as 'calming' and a 'safe place' masked its more sinister use for containment and behaviour management in a service that seemed unable to acknowledge or respond to C's underlying needs.  Further hearings will determine whether this violated C's rights, and had any harmful effects.  The issue of using legally correct language around restraint, seclusion and restrictions on liberty is not taken up in court merely for its own sake: concrete practices are embedded within legal discourses, and use of legally correct language will alert people to the legal procedures and safeguards, and good practice guidance, that is required.  It is to these I now turn.

---

[1] The judgment does not state whether this was a care home for the purposes of the Care Standards Act 2000 or not.  It simply says that the local authority and care provider had not authorised the detention using the deprivation of liberty safeguards [44]; this would seem to imply they could have done, and hence it is a care home, but this is not made explicit.

Safeguards and secrets

The ground shifted subtly yesterday for supervisory bodies in England and Wales.  It wasn’t the earthquake of the Bournewood judgment, but tremors from the Neary ruling will be felt by local authorities and primary care trusts around the country, and perhaps best interests assessors in particular.  The deprivation of liberty safeguards – patchy, bureaucratic, labyrinthine – had finally clunked into life, albeit belatedly, and returned Steven Neary to his father last Christmas.  For everything that can be said about this ruling, about all the aspects of the safeguards that can go wrong, the ways in which they can be distorted and manipulated, and the inherent conflicts of interest at their heart, it is still heartening to hold up this judgment against the ruling of the House of Lords in R. v Bournewood Community and Mental Health NHS Trust Ex p. L and see how far we have come.  The central message of HL v UK, of the importance of due process for people with impaired capacity who are deprived of their liberty, may yet have to fully sink in for some public authorities responsible for supporting and assisting them in their lives – but we can rest assured that it has been very well understood by the judiciary in the Court of Protection.  Mr Justice Peter Jacksons’ ruling was a far cry from deference of the House of Lords’ in Bournewood to professional opinion, the message was loud and clear: the tokenistic application of the safeguards by supervisory bodies is insufficient in and of itself, the court will scrutinise your every step to ensure you have understood and acted upon their spirit.

Steven Neary's detention ruled unlawful

I haven't had a chance to read the judgment in full yet, but Jerome Taylor at the Independent was kind enough to send me a link.  You can read the ruling here:

http://www.judiciary.gov.uk/Resources/JCO/Documents/Judgments/neary-judgment-09062011.pdf

Hillingdon also tweeted me a link to their statement, which is here:

http://www.hillingdon.gov.uk/index.jsp?articleid=23254

More thoughts to follow...  In the meantime, here's my wishlist for accurate media reporting on the case!

Court of Protection Case Summaries

Judge Denzil Lush is the Senior Judge of the Court of Protection.  Earlier this year the Court were kind enough to share with me some case summaries he had written on Court of Protection cases.  I asked if he would mind me sharing them more widely, as I think many legal and social care practitioners might find them interesting or useful.  He has very kindly agreed, and I've put them up through Google Documents here (if you have any problems downloading the document, drop me an email and I'll send it to you).  Some of the cases have been reported elsewhere, but some look as if they have not.  They range across all kinds of issues.  It's a really handy and well written resource, I'm very grateful to the Court for sharing it.  Adam Wagner at the UK Human Rights Blog has previously discussed the benefits of short judgment summaries, like those produced by the Supreme Court, for ensuring better legal reporting and awareness.  Judges in the under-resourced Court of Protection won't have time for this in most cases, but it's nice to see accessibly written summaries of important cases - particularly for people who don't have subscriptions to services like Westlaw or Lexis.

In other news, a new series of Court of Protection Law Reports is being set up.  39 Essex Street barristers, and Court of Protection Newsletter authors, Alex Ruck-Keene and Victoria Butler-Cole are on the Editorial Board. The first volume will be a 'catch-up' volume of important cases to date.  I just hope that they will continue to publish their much-read and appreciated Newsletter...  If you want to find back-issues of the Newsletter, Jonathan Wilson has put them up here at Mental Health Law Online.  He's also recently posted a book by Judge Eldergill on Mental Health Review Tribunals.  The book was written in 1997, he is reproducing it on the blog 'for historical and academic interest only.'

One of these days, I really must get around to putting up a resources page...  I noticed the Essex Autonomy Project have got one on case studies and one on web resources, that might be useful to anyone with an interest in philosophical issues relating to mental capacity.

What is mental capacity?

Today I’ve decided to just put up some notes I’ve been making on “mental capacity” as a legal concept.  They weren’t really written to be a blog post, but I don’t think there’s any harm in sharing them.  It’s not going to contain any great revelations, but I found it interesting to chart how the concept has unfolded from the time of the Law Commissions’ first reports on mental capacity (available under ‘M’ on Bailii).  I’m not a philosopher, but I do find some concepts from philosophy helpful to unpick the ways in which the concept has been used.  If this kind of “abstract” piece isn’t not your cup of tea, maybe come back later in the week for comment on the Neary ruling when it’s out.

Different tests of capacity

The Law Commission discussed different ‘mental capacity’ type concepts in other jurisdictions.  ‘Status’, or ‘category’, approaches make global (or near-global) attributions of decisional capacity on the basis of membership of a particular diagnostic category or legally defined group.  For instance, a status approach might say that anyone within a particular age bracket, or with a particular medical diagnosis, lacks capacity in all matters.   They also noted that the legal status of being a ‘patient’ of the Court of Protection (in its pre-MCA incarnation) effectively deprived them of all contractual capacity ‘whether or not as a matter of fact the patient actually had such capacity’ [3.3]. They rejected status approaches on the basis that they oversimplify the question of whether a person has decisional capacity and they ‘tend to undermine respect for individual rights’ [2.43].  Certain kinds of status approaches are explicitly precluded by s2(3) Mental Capacity Act 2005 (MCA).

Outcome based approaches attribute capacity on the basis of the outcome of a particular decision.  The Law Commission gave this pretty short shrift, saying:

‘A decision which is inconsistent with the views and values of the assessor, or rejects conventional wisdom is by definition incompetently made’

and

‘This penalises individuality and demands conformity at the expense of personal autonomy’ [3.4]. 

They reported, however, that many respondents felt that doctors were applying an ‘outcome’ approach, whereby a person was taken to lack capacity if they rejected a course of treatment which the doctor advised.  Section 1(4) MCA can be seen as a caution against ‘outcome’ based approaches.  I'll consider below whether the MCA formulation allows 'outcome based' approaches in by the back door.

In the event, the Law Commission proposed what they called a ‘functional’ approach, on the basis that it was the most strongly supported by respondents to their consultation, and had ‘the merit of being the approach adopted by most of the established tests in English law’ [3.5].  This ‘functional approach’ was combined with a diagnostic threshold, giving rise to what is referred to in the code of practice as the ‘two-stage test of capacity’ (p41). Unlike status or category approaches, a functional approach is ‘decision specific’ – a person’s mental capacity can only be determined by reference to their ability to make the decision in hand. 

The first stage of capacity assessment: Invoking a diagnostic threshold

Section 2(1) MCA states that a person lacks capacity if they are unable to make a decision ‘because of an impairment of, or a disturbance in the functioning of, the mind or brain.’  The Law Commission considered arguments for and against including a diagnostic threshold [3.10-3.14].  Arguments against included that it might encourage a purely ‘status’ approach to capacity, that it was stigmatising, and that a medical label was in any case superfluous to the legal and moral issues at stake.  The Law Commission felt that the second ‘functional’ stage of the test would discourage a status-only approach, meanwhile, they felt, not having a diagnostic threshold would ‘places too heavy a burden on the functional test... this test is not easy to define or to apply, particularly as to the degree of incapacity which is required’.  They regarded one benefit of the diagnostic threshold as increasing:

...the involvement of people with suitable specialist qualifications in the determination of whether intervention is necessary in an individual case, and what kind of intervention is most appropriate. [3.11]

The formulation quite deliberately reinforces the status of medical and health professional evidence in these matters.  The Law Commission felt a diagnostic test had a role to play ‘in ensuring that the test is stringent enough not to catch large numbers of people who make unusual or unwise decisions’ [3.8]; thus it is medical and health professionals who are charged in law with demarcating the boundaries of madness, non-pathological deviance and eccentricity.  There’s probably a lot that could be said about this decision from governmentality and critical psychiatry perspectives, but I won’t get into that here.  The diagnostic threshold has an influence on the way individuals are described in cases: almost always the first thing we learn about them is their diagnosis, and very often for people with learning disabilities that rather dubious concept – their mental age.  I always wonder how far 'mental age' as a construct has achieved such prominence in case law  because it seems to tacitly sanction paternalistic interventions that we would regard as acceptable in the lives of children, but generally not adults.

The second stage of capacity assessment: The ‘functional test’

The ‘functional test’ of capacity is set out in s3 MCA.  I noticed that in at least one of the Law Commission reports they refer to this as a ‘cognitive’ test.  I am glad they have dropped this terminology. I doubt many psychologists who use the term ‘cognitive’ would mean it in this way, and I share many of the reservations about ‘cognitive’ approaches to clinical psychology expressed by discursive psychologists.  Cognitive approaches can pay insufficient attention to someone's embodied and social context, and offer false claims of neutrality regarding the cultural and political content of the issue under discussion.  By contrast, discursive psychologists acknowledge the 'constructed' nature of psychological concepts, and emphasise that in understanding concepts like 'mental capacity' we should explore what these concepts enable us to do.

There have been attempts to look for ‘cognitive correlates’ of mental capacity by researchers (e.g. Palmer, 2004), but I personally doubt whether these are well founded in principle.  No doubt soon enough we shall see neuroscientists claim to have found the areas of the brain that light up when a person “has capacity”; I hope these claims are treated with the critical caution they deserve.  A key problem with such reductionistic approaches, as we shall see, is that the concept of mental capacity may take into account many features of a person’s circumstances, and many background normative orientations, that would not be picked up in the kinds of tests and scales favoured in neuropsychology.

So, the functional test says that a person is to be regarded as unable to make a decision if they are unable to understand, retain or use or weigh the information relevant to the decision.  It also includes a fourth criterion: the ability to communicate a decision; this was explicitly intended to ensure the MCA covered cases of locked-in syndrome, but may also be important conceptually and legally for people who have limited communication abilities.  Section 3(2) MCA reiterates the message of s1(3), that the most appropriate means to impart the information relevant to a decision should be sought, and a person should be supported in taking the decision for themselves as far as is practicable.  Section 4(3) MCA acknowledges that the capacity to take a particular decision can develop or fluctuate, and requires assessors to consider whether the decision could be taken at a later point when a person may have gained, or regained, capacity.

Epistemic and value commitments in understanding, using and weighing information

In some respects the MCA appears to be a paragon of liberal tolerance of any eccentric or minority views which might inform decisions, but the picture may be more complex than that.  The capacity assessor will need to elucidate exactly what ‘information relevant to the decision’ needs to be understood, retained and weighed in order to make it.  Section 3(4) MCA says that this information ‘includes information about the reasonably foreseeable consequences of (a)deciding one way or another, or (b)failing to make the decision’.  It is hard to see how this aspect of the test could avoid incorporating some subjective judgments as to what information is relevant, and some epistemic commitments about what information is ‘true’ and what consequences are reasonably foreseeable.  The recent debates around capacity to consent to sex illustrate the subjective nature of the 'relevance' point nicely; in D Borough Council v AB the doctor held it to be important that a person understands the nature of consent itself, and the emotional consequences of sex – Mostyn J, deciding, did not.

The epistemic commitments required by a test of capacity to make a particular decision may also be contentious.  Neil Allen has written a great article on this topic, called Is Capacity “In Sight”? (pdf).  He discusses a quote by Munby J in Local Authority X v MM & Anor (No. 1) [2007]:

If one does not “believe” a particular piece of information then one does not, in truth, “comprehend” or “understand” it, nor can it be said that one is able to “use” or “weigh” it. In other words, the specific requirement of belief is subsumed in the more general requirements of understanding and of ability to use and weigh information.”32' [81]

The belief criterion may at times be contentious, particularly if a person is required to have ‘insight’ into having a particular medical diagnosis in order to demonstrate that they have the capacity to refuse treatment for it.  A person may likewise have to concur with treating professionals that a particular treatment would be beneficial, if they are to be regarded as ‘understanding’ the information sufficiently to reject it.  I can also imagine circumstances where a person could be expected to reject certain beliefs of their own to demonstrate understanding, for instance, that homeopathy will not cure cancer.  Allen discusses some interesting examples, including the famous case of Re C (Adult: Refusal of Medical Treatment) [1994] 1 All E.R. 819 (which I can’t find a free copy of online, any links gratefully accepted).  The case Re C concerned a man with a diagnosis of schizophrenia who was under the delusion that he was a great doctor.  He believed that God would cure his gangrenous foot and that medical treatments were calculated to destroy his body, although the doctors believed amputation was the only way to save his life.  The judge found that despite C’s beliefs, he had capacity as there was no evidence of ‘any direct link between C's refusal and his persecutory delusions’.  I heard through word of mouth, although I am not sure if it is correct, that C did in fact go on to survive even without the surgery.

I saw a great talk by Jules Holroyd at a CRASSH event where she discussed possible value commitments underpinning the requirement to ‘weigh’ information; in particular whether anorexic patients might be considered to lack the capacity to refuse treatment if they did not weigh the risk of death or disability sufficiently highly.  Of course some beliefs and values that are not shared by the majority, or by “experts” in a particular field, may nevertheless be accorded respect in law.  This is especially true if they are religious or culturally held by a recognised group.  The legal issue is not whether a person bases their decision on ‘incorrect’ or disputed information, or that they value something in an unusual way, rather the reason for their doing so.  If it is felt to be firmly grounded in a religious or cultural conviction, it will not pass the diagnostic criterion that the failure to believe a piece of information that the capacity assessor holds relevant is caused by an impairment of the mind or brain.  Of course, danger may lurk when 'denialism' or a religious belief are treated as symptomatic of a mental disorder in themselves.

Mental capacity is relational and contextual

“Mental capacity” sounds like a state of affairs in somebody’s head, but it is clear from the case law that the approach taken by judges in the Court of Protection places considerable emphasis on a person’s context and relationships in determining capacity.  A person’s relationships with others may be seen to either improve, or impair, their mental capacity.  The recent case of V v R (2011) is a good example of where relationships and situation have been held to increase mental capacity.  The case concerned a young woman, V, who had suffered a traumatic brain injury.  She was pursuing a compensation claim against the insurers of a vehicle that had knocked her down; her mother had expressed concerns that V lacked litigation capacity, and it was decided prudent by V’s own counsel to settle the matter in case the issue came up later on in proceedings.  According to the testimony of V’s mother, V lacked the concentration required to read legal documents, was prone to making impulsive decisions, and any decisions she did take she took on the advice of her mother.  “The reality” according to V’s mother's testimony “was that she and not the claimant would make any material decision.” [29].  The experts were divided in their views.  In the end, the judge concluded that the difficulties that V might have in making decisions ‘are capable of being ameliorated, if not entirely overcome, by the careful and structured support that the statute contemplates’, and thus V was held to have capacity.  The finding that V had capacity was thus not based on what V could achieve in isolation, but on the practical reality that she went through all major decisions with her mother and based them upon her advice, that her mother conducted the day to day running of the case, and that this support was likely to continue in the future.  Thus V’s relationships and the context within which the decisions were taken were central to her having ‘mental capacity’, even though on one view the decisions are “actually” being taken by her mother.

In stark contrast to cases like V v R, are cases where a person is found to lack capacity in part as a result of the coercive influence of others upon their decision making.  Perhaps the best known case of this variety is Re T (1992), where a pregnant woman who was Jehovah’s Witness refused a blood transfusion following a road traffic accident.  The court held that T’s refusal of treatment was not valid, in part because she had not been properly informed of the risks, but also because it was felt that her decision arose more from the undue influence of her mother than her own religious convictions.  The case precedes the MCA, and a better example in the light of the Act might be A Primary Care Trust v P (2009).  The case concerned whether P should move out of his mother’s care, as there were concerns about her overbearing influence and disputes arising out of his epilepsy medication.  The judge commented:

It is utterly clear that they have been deeply and, as I find, unhealthily enmeshed in one another, so much so that when speaking to either about themselves or about the other, it is quite impossible to discern whose voice is actually being heard.  [25]

The reasons that I am persuaded that he lacks that capacity are the cumulative force of the following: a) his epilepsy and its impact on his functioning, b) his learning disability which is at the lower end of mild, c) the enmeshed relationship that he has with AH which severely restricts his perspective in terms of being able to think about his future, d) his inability, frequently articulated by him to those who have interviewed him, to visualise any prospect of having a different view to his mother on any subject that matters and his inability to understand what the other aspects of the argument may be in relation to his expressed wishes simply to return and live undisturbed with his mother.  [37]

In both cases the relevant person’s decisions were strongly influenced by the views of their mother, but in one case this was regarded as enhancing their capacity and in the other it was seen as diminishing it.  It is hard to see how this distinction can be maintained without regard to a wider normative framework over whether the mother’s decisions are ultimately beneficial to the relevant person or not.  Both cases may be quite sensible, practical, outcomes but – to me at least – there is something distinctly unsatisfactory about them when considered side by side.  The wisdom of the outcome of the decision is not supposed to affect whether a person has capacity or not, and yet here the substantive distinction seems to be that the support in one case leads to wise decisions, and support in the other is not regarded as doing so by the court.

The legal issue finds a parallel in some philosophy I have been reading.  Whereas traditionally ‘autonomy’ – the ability to govern oneself and one’s actions – has been regarded as centred within an individual, some new approaches stress the relationality of autonomy.  The Stanford Encyclopedia entry on autonomy in political and moral philosophy has a useful summary and references on this approach.  Writings on relational autonomy tend to focus on issues of oppression, but I read an interesting paper by Francis and Silvers exploring how the autonomy of people with cognitive disabilities could be enhanced through relationships with people they called ‘trustees’ who could assist them with reflection and reasoning (the paper is published in this book, or in a special issue of the journal Metaphilosophy).  Francis and Silvers liken the role of a ‘trustee’ to that of a prosthetic limb for an athlete, and they emphasise that all of us are dependent on others and society more generally to help select and refine the information and values upon which we base our decisions.  I have no difficulty accepting the latter point, but I think I do – on reflection – reject the prosthetic parallel.  The problem is that whilst one’s prosthetic may of course enable a person to run, it is unlikely to be said, itself, to do the running.  It is never likely to be attributed with exercising control over a person in the same was that a ‘trustee’ who helps a person to make decisions could be.  It is a tool that is manipulated by the wearer; it does not have the potential to manipulate.

This seems to me to bring us back full circle to the legal problem; we cannot distinguish between a controlling or a supportive influence without reference to both the outcome of the decision made and an extrinsic normative framework about the value of that outcome.  I may be understanding an interesting essay by Jules Holroyd incorrectly, but I wonder if this is related to a point she makes regarding relational autonomy:

...any account [of autonomy that relies upon S standing in a certain social relation] cannot play one of autonomy’s key normative roles: identifying those agents who ought to be protected from (hard) paternalistic intervention. I argue, against objections from Oshana, that there are good reasons for maintaining the notion of autonomy in this role, and thus that such relational conceptions should not be accepted.

This short extract doesn't do justice to Holroyd’s careful article, but I hope my point is at least congruent with hers.  As is illustrated in the case of V v R, what we may want to call relational autonomy can clearly bring very beneficial consequences, but the danger (metaphysical, legal and real) lurks in how we separate off those cases from those of undue influence.

Capacity is experience based

The case law has developed a clear role for experience and learning in capacity.  In D Borough Council v AB Mostyn J found that ‘Alan’ lacked the capacity to consent to sexual relations, but the court directed that attempts should be made to remedy this situation by providing him with sex education, so that he might attain capacity.  For some issues, a lack of life experience might impair someone’s ability to make a decision because the only way to understand the information is through experience.  For example, in A PCT v P (2009) Hedley J says:

...until P has experienced something other than the care of his mother, then he has no opportunity to make true choices about what he wants for himself.  In the circumstances of this case, it is said this can only be achieved by prising him out of his current relationship, significantly curtailing contact and thereby allowing space for the development of a new experience.  Some believe, and leading amongst those is Dr Milnes, his treating psychiatrist, that this will lead to his regaining capacity and it is recognised that should he do so, that may result in a choice to return to AH.  [57]

Clearly it is rather a drastic step to remove someone, involuntarily, from the care of a parent to enhance their mental capacity, and to do so could not be justified by s1(3) MCA alone.  In this case it required the use of the deprivation of liberty provisions of the MCA.  The Law Commission acknowledged in their earliest paper on mental capacity that:

Maximising freedom or providing equality of opportunity goes beyond mere non-interference. It can, for example, imply a need actively to encourage people to take risks. Even if this has adverse short term consequences , there may be long term benefits which cannot be acquired in any other way. Nearly everyone can learn by experience, however slowly. If harm is taken to include under-achievement and lack of fulfillment, are mentally incapacitated people put at greater risk of harm by receiving too much care and protection, or too little?" [1.12]

So capacity can fluctuate not merely according to one’s physiological state, but also according to the opportunities and learning experiences available to a person.  And opportunities to learn and develop may entail taking risks, which need to be balanced against the overall benefits of increased personal autonomy and fulfilment.

Assessment of capacity

I’ll bring these comments to an end now, although this far from exhausts the matter.  I hope I’ve given some convincing reasons to doubt that mental capacity could be determined solely by reference to performance in some laboratory tests or a brain scan!  I just wanted to offer some passing thoughts on the assessment of capacity itself.  We have seen that the case law acknowledges that mental capacity may be contingent on a person’s relationships with those in their immediate circle, their life experience, and their current context, but I think it’s also important to note that it may depend on their relationship with the capacity assessor themselves.  The context of capacity assessment, and the relationship a person has with the person assessing their capacity, may impact on the outcome of the test.  The ability a capacity assessor has to communicate with the relevant person will affect the outcome directly – through MCA s3(1)(d), but also indirectly as they may be less able to communicate to the relevant person the information required for the decision.  This means, for instance, that the level of staff training in communication techniques like Makaton, or even staff turnover, may have a direct effect on the ‘mental capacity’ of people within a particular service.  If a person does not like or trust a particular member of staff or professional, they may not engage in full enough communication to evidence their capacity.  The quality of the relationship may be paramount; we should be concerned, therefore, about the effect of services that do not provide good continuity of care upon a person’s ability to exercise what autonomy they are potentially capable of.

Another issue around capacity assessment that troubles me, particularly where assessments are very formal and undertaken for the purposes of writing a report, is that the assessment process itself may be experienced as an invasion of someone’s privacy.  Even if a person is found to have capacity, the experience of being assessed, having to give reasons for one’s decision, demonstrate that one understands and can weigh certain pieces of information, could potentially be quite intrusive.  It certainly has the potential to place a person in a position of felt inferiority to the person doing the assessing.  I sometimes wonder whether professionals undertaking these kinds of assessment seek the consent of the relevant person first, and of course, whether that assessed person has the capacity to give that consent.  Directions from the court might dispense with the need for that consent, but I do sometimes wonder what happens about capacity assessments that precede court hearings where a person refuses to co-operate with the process.  I heard recently about a case where a person was thought by their solicitor to lack litigation capacity, so the solicitor wrote off to their GP who replied that in their view they lacked it.  I have no idea about the veracity of the claim, but it would trouble me if the relevant person had not consented to that information being disclosed.

It is a wider problem in Court of Protection cases, that I have commented on before in relation to the case D Borough Council v AB, that in striving to ensure people’s rights are upheld, there are dangers that the legal processes themselves may entail other harms which will need to be balanced.  I can see no obvious way around this; I support the principle that people should be protected against harmful decisions they lack the capacity to make, but the very act of assessment that this principle entails may be experienced as oppressive or demeaning by some.  We should approach capacity assessment, therefore, respectfully and with caution, and be careful not to forget s1(2) MCA: the starting point is the presumption that all people, regardless of appearances, have capacity. 

Quick update - legal aid for s21A appeals

A while back I wrote a post about the low numbers of s21A appeals under the deprivation of liberty safeguards (DoLS).  I noted that according to data the Court of Protection shared with me, 8 appeals were by litigants in person.  I'm afraid I forget who it was, but someone suggested this might be because the Legal Services Commission were refusing some would-be claimants legal aid on a merits test, perhaps on the basis that their appeal against detention was unlikely to succeed.  I looked into this further by writing to the LSC, who confirmed today that between April 2009 and December 2010 there were 67 requests for legal aid for s21A appeals, none of which were refused.  So it seems the LSC, like the Court of Protection, take the view that all appeals against detention should be heard and treated seriously - and the court should never just 'rubber stamp' an authorisation under the DoLS.  It is reassuring that people are not prevented from having the Court of Protection review their detention due to unavailability of public funding.

This does, however, beg the question as to why almost a third of all s21A appeals by December 2010 were litigants in person.  It would be interesting to know whether these litigants were appointed as representatives of the detainee.  In their first report into the DoLS the Mental Health Alliance had expressed concerns that some supervisory bodies were deliberately avoiding appointing people who opposed a detention as representatives, purely on the basis of their opposition.  Thus it might be that some of these people have sought to oppose detention through the s21A appeal as a litigant in person.  There are regulations on the appointment and selection of relevant person's representatives under the DoLS, here.  One other alternative explanation is that people are struggling to find legal representation due to a shortage of specialist solicitors, or a lack of awareness of how to find them.

It would be useful if the Ministry of Justice could collect data on who is making an application to the Court of Protection under s21A, and the outcome of that application (variation, termination or continuance of the authorisation).

Last night’s Panorama – Anatomy of a scandal

Last summer I spent some time researching the abuse of adults with learning disabilities in Cornwall, to get a sense of the mechanisms that were – and weren’t – in place to pick up on this abuse and ensure it didn’t happen again. As I watched last night’s Panorama, showing institutional abuse of adults with learning disabilities in a locked ward near Bristol, I thought again about some of what I learned, and how it mapped onto what occurred in Winterbourne View.

Accountability of support staff

Whilst the program was airing, I watched some of the comments on Twitter streaming in. Charon QC, among others, expressed a hope they would face criminal prosecutions. I hope so as well. Something that shocked me about the abuse in Cornwall is that not a single person ever faced a criminal prosecution. I’m not sure the abuse there was so different to what we saw in the Panorama footage, in their investigation report the Healthcare Commission and Commission for Social Care Inspection wrote: 

...instances of poor or abusive care were recorded in personnel files, correspondence, and notes from investigations. These incidents included staff hitting, pushing, shoving, dragging, kicking, secluding, belittling, mocking and goading people who used the trust’s services, withholding food, giving cold showers, over zealous or premature use of restraint, poor attitude towards people who used services, poor atmosphere, roughness, care not being provided, a lack of dignity and respect, and no privacy. All those living on Lamorna Ward were subject to this type of behaviour but two individuals were targeted frequently.

I was interested in why no staff were ever prosecuted, so I made a Freedom of Information Act request for the police report. The request was initially refused – police reports into criminal investigations are rarely released under FOI – but I successfully appealed on the basis that the investigation concerned not just private individuals, but treatment of highly vulnerable individuals at the hands of NHS staff – agents of the state. You can read the report here. 

Looking through the report there seem to be several reasons why there were no prosecutions, many of which would not an issue in the Panorama case.  At the time of the Cornwall abuse investigation, the Mental Capacity Act 2005 had only just come into force, and so nobody could be prosecuted for the new criminal offence of ill treatment or neglect of someone who lacks capacity.  They could, however, have used s127 of the Mental Health Act in some cases.  I hope these are charges the police will look as using in relation to staff at Winterbourne View.  Primarily police in Cornwall looked at ‘ordinary’ offences like assault, which have a very short statute of limitations – 6 months.  I am not sure whether they were recorded as disability hate crimes; I hope they would be today.  When people are deprived of their liberty in care settings, when they have very profound communication problems, it may take many months, if not years, for incidents of abuse to surface, meaning prosecution within the limitation period can be much less likely.

According to the police report, the CSCI and Healthcare Commission were of very limited help in their investigations:

Obtaining the information HCC and CSCI had used in their investigation that resulted in the multi-agency report was challenging due to Data Protection issues. When eventually a small portion of information was provided, it was merely lists and very brief summaries of what had been obtained rather than copies of the documentation itself. Those lists were so heavily edited as to be virtually useless to the investigation. [7.14]

I’m no expert on the Data Protection Act, but I am surprised that Cornwall Partnership NHS Trust was able to share the documentation with the police but the regulator itself wasn’t.  The evidence the police based their investigation on came directly from the perpetrator organisation.

A second reason there were no prosecutions was a problem with the evidence obtained.  It would seem that the findings of an internal review by the trust, cited in the quote from the investigation report above, were an insufficient basis for a criminal prosecution.  In Panorama we saw staff documenting incidents; their reports bore little resemblance with the reality we had just witnessed, and yet these are the records that survive, and what inspections and investigations would be based on.  People who are subjects of abuse within the care system are usually not in a position to document or communicate what is happening to them.  Even when they are able to communicate what has happened, the accounts of people with cognitive disabilities are often discredited – even by those who love and care about them.  Simone’s parents chose to believe that her allegations of abuse must be false, because what she was alleging “wasn’t allowed”.  There is a serious danger that the police and CPS and even juries will take that attitude as well.  In a case in 2009 the CPS chose not to prosecute a serious assault on a man with mental health problems, because a psychiatric report confirmed that he could – at times – have a distorted perception of events.  The CPS failed to ask the psychiatrist to consider whether on this occasion his perception of events was distorted.  The judge found that their decision not to prosecute had been irrational, but furthermore that in itself the decision not to prosecuted had violated his Article 3 rights to protection from inhuman and degrading treatment.  To have one’s account discredited purely on the basis of your diagnosis is also a form of inhuman and degrading treatment.

I have no idea what steps Cornwall’s police and the CPS took to check whether people could offer reliable testimony.  In many cases, however, people will not be able to no matter how much support is in place.  In one particularly sad extract from the Operation Apple report, officers conclude that a man who alleges he was raped probably has been subjected to a serious assault, but they feel they can’t extract the truth from fantasy in his bizarre account of it.  Difficulty evidencing criminal acts is one reason why we should consider people who are deprived of their liberty, who have particular difficulties communicating, especially vulnerable to abuse.  Systems should be in place to ensure we are not reliant on criminal prosecutions as the only effective deterrent, because even with the best efforts of police and CPS, obtaining evidence to secure prosecutions can be extremely difficult.  In Winterbourne View, staff clearly felt entirely immune from police enquiries; at several points they taunted residents that the “police don’t care”, or they would tell the police that the residents hit them first.  I wonder, if the Panorama team had not been there, what the police would have done if somehow Simone or her parents had tried to alert them to what was happening.  How would they have weighed Simone's testimony against Wayne's?

One of the things that shocked me about the police report in Cornwall was how many acts that to the regulator were clear abuses, were not regarded as criminal acts by the police.  Just to take some examples:

The allegation in relation to (…V…) was that in 2005 he was restrained to prevent self-harm by strapping both hands to his wheelchair or his bed... Documentation relating to the care and treatment of (…V…) was researched and no criminal offences were identified. [8.9.1-2]

The bear hug technique and the lap restraint were approved methods of restraining a potentially violent person so that necessary medication could be administered... No criminal offences were identified. [8.33.4-5]

The allegation in relation to (...AA...) is on either 11 or 12 February 2006 he was given a cold shower by unknown member of staff...2 An incident list clearly shows the challenges staff have whilst attempting to care for (...AA...). He has been violent, assaulted staff and other service users, probed his own rectum causing bleeding, self harmed by hitting himself and spat out his medication... No criminal offences were identified. [8.14.1-3]

Several things stand out reading this.  The first is that the police report emphasises over and over again how ‘challenging’ the residents were to care for.  Recalling the Panorama footage, the staff there emphasised in the incident reports documenting restraint how ‘difficult’ the residents were being; it is reports like these that formed the basis of the Cornwall investigation.  The police and CPS seem to have uncritically absorbed this narrative and run with it.  The second is that they clearly fail to apply the test of s6 Mental Capacity Act 2005 of when restraint is appropriate.  The Act had only just come into force at the time, but today I hope that police realise it simply isn’t good enough to say that someone was restrained because they wouldn’t take their medication: was the act of restraint necessary and proportionate to the likelihood and severity of the harm that would have been suffered otherwise?  My fear is that police and the CPS may not be skilled and knowledgeable enough of either the MCA or social care more generally, to be able to assess what constitutes a serious risk, a proportionate response or ensuring that all other less restrictive avenues of action have been exhausted first.  I hope they take expert advice when investigating matters like this; and I hope that advice does not come from the self-same providers that they are investigating. 

It surprises me that the police and CPS in Cornwall didn’t view restraining someone for 16 hours a day in their wheelchair a form of assault, especially when care experts regarded this as unnecessary and abusive.  It surprises me they didn’t regard forcible cold showers a form of assault as well.  Last night’s Panorama, showed Simone being given a cold shower, then drenched again outside in freezing weather, then tormented in a cold shower yet again.   I found myself wondering whether the police and CPS might have reconsidered their decision that a cold shower did not constitute a criminal act if they had seen the footage.  Part of the problem is that misperceptions of what can be legitimately done of in the name of care may distort what would clearly be an assault if it happened to somebody without a disability in their own home.  Perhaps even if it is accepted staff acted unlawfully, there is a tendency to interpret events as misguided acts of care, without the mens rea for a criminal prosecution.  Many of the worst abuses in Cornwall seem to have been accepted as par for the course in a care settting by the criminal justice system.  My hope is that the availability of television footage showing the distress of residents will bring home to investigating officers in Bristol that they are humans, that they feel distress, just as anyone else would if they were subject to the same treatment.

Criminal prosecutions aren’t the only way to hold people to account, however.  My understanding is that several staff members were dismissed in relation to abuses in Cornwall, but at the time the Safeguarding Vulnerable Groups Act 2006 was not in force and so those staff were not referred to the ‘POVA register’.  They may well still be working in care.

Accountability of management

The danger with Winterbourne View, is that we regard the matter as resolved because the police have stepped in and arrested four care staff.  As Fighting Monsters wrote:

This was not about 4 rogue members of staff. This was about an environment that allowed them to abuse and for that the senior management up to the Chief Executive should be responsible.

There are several ways in which the management structure could – and should – be held accountable.  For some reason, the CPS and police in Cornwall decided not to investigate corporate neglect (see paragraph 7.31).  I'm not sure whether that could be pursued in this case.  One crime that managers almost certainly could have been prosecuted for in Cornwall was running an illegal, unregistered, care home (s11 Care Standards Act 2000).  The CPS and police left this decision up to CSCI, who – as far as I can make out from my FOI requests – never pursued a prosecution.  I’ve never got to the bottom of why they didn't, although I did manage to get them to release hundreds of pages of correspondence on this matter which I’m still working my way through (which I'm happy to share, if anyone wants a copy).

I think it unlikely that no other staff will be dismissed as a result of the Panorama footage.  I hope that nursing managers are referred to the Nursing and Midwifery Council for disciplinary action, and they will give serious consideration to whether they should be struck off.  Personally I find it hard to see how they could be permitted to manage services again – especially the night manager who stood by and watched Simone being abused by staff – but they still deserve due process, and we shouldn’t pre-empt what the standards board will find.

One senior nurse left the organisation and raised concerns, but where were all the other whistleblowers?  It’s something that bothers me in all these institutional abuse and neglect cases, from Cornwall through the Mid-Staffordshire Inquiry to the most recent revelations of doctors having to prescribe water to ensure elderly patients had enough to drink.  Why are doctors prescribing water, and not alerting the regulator?  We know that whistleblowers have a hard time being heard, and may suffer persecution for raising the alarm.  Senior nurse Terry Bryan repeatedly alerted managers and the CQC to abuse at Winterbourne View and he was ignored.  A few years ago nurse Margaret Haywood filmed neglect abuse in the Royal Sussex Hospital for another undercover Panorama episode; she was struck off by the Nursing and Midwifery Council.  Whistleblowers are meant to be protected by the Public Interest Disclosure Act 1998, but one in three nurses who have raised the alarm said it did lasting damage to their career.  Like a lot of support workers, I’ve worked in some truly awful places – albeit none as horrendous as Winterbourne View.  I once worked in a live-in care setting where I had serious concerns about the care quality and management; I and other staff who kicked up a fuss lost not only our jobs but our homes.  I worked in another service shortly after two managers had recently been suspended for very serious allegations; I asked staff why they hadn’t alerted the regulator or the press.  The regulator had only acted after years of them expressing concerns, they said, and they were too scared of the place being closed down and all of them losing their jobs to go to the press.  I have a certain amount of sympathy for staff in this position, but a part of me does wonder whether there shouldn’t be a serious attempt by professional bodies to discipline staff for failing to alert regulators and managers to abuse and neglect.  Of course, this only works if the regulatory bodies take action.

Staff Training

On Twitter and blogs, lots of people are quick to say that we need more training for staff (e.g. this piece).  Staff at Winterbourne View apparently had a week's training; that's more than most places I've worked at have provided.  Decent training is a necessary minimum, but it is just that – a minimum, and we shouldn’t regard it as sufficient.  A few days training (I know I’m being generous here by suggesting it might even be a few days) is pretty unlikely to change the practices and attitudes of the Wayne’s and Graham’s of this world.  In a research paper on training in social care, Lindsey Pike and others point out:

"Individuals on their own cannot make training effective; they need to work within systems that promote the transfer of their learning to practice through effective workforce development structures."

In the case of Wayne and Graham, what training they would have had just appeared to enable to them to cover their tracks more effectively.  It allowed them to know what discourses would mitigate their actions: what to write in incident reports, what to tell management.  They knew, perfectly well, what they were and weren’t allowed to do.  The Panorama footage was a fascinating study in the maintenance of double standards in appearance; the appearance of what they think a support worker “should” look like (no doubt gleaned from training and management speak), and the appearance of a figure of power and authority, inspiring fear in residents and other staff.

Accountability of the regulator

Training and documentation alone is not enough.  What is needed is mutual scrutiny of staff practices, and scrutiny from above, at every stage.  Opportunities for scrutiny by people equipped with the knowledge and confidence to challenge abusive and poor practice, and create a real pressure to improve.  Shortly after the Cornwall abuse scandal, the Healthcare Commission conducted a national audit of specialist services for people with learning disabilities.  They found serious abuses in another service, Sutton and Merton.  Everywhere else they found highly restrictive and institutional environments, and they called the report A Life Like No Other.  In a fascinating comment from the regulator, they complained about a lack of external scrutiny of these services, and recommended increased referrals to advocacy services.  A few years later in 2009 the CQC went back to a random sample of services; they found much the same.  Following the Panorama program, Minister for Social Care, Paul Burstow, today authorised a series of random unannounced inspections of services.  I can’t help but feel cynical about this; it feels like an exercise where we can reassure ourselves that no Cornwalls or Sutton and Merton’s are lurking, without addressing the underpinning issues causing these problems to recur every few years.  I don't think I'm the only person to wonder what will be different the third time around.

The services in Cornwall were not inspected at all, as the managers had not registered them.  Police felt that had they been registered, events might not have got as far as they did.  Notably, Winterbourne View was registered, it had been inspected within the last two years (see report).  Ian Biggs, the CQC regional director interviewed by Panorama, commented that it was difficult to pick up on warnings from talking to staff and residents, and reading documentation.  I wonder whether they spoke to residents in private, away from staff – I know many care inspectors do not, although it’s a practice the Mental Health Act Commissioners believe is very important.  I've even heard of care inspectors handing out surveys to care home management to give out to staff and residents, and collect back in again, offering ample opportunity to select the most pliant individuals and weed out critical remarks.  But even away from staff, many residents may have been unable to explain what was happening, or been too fearful of reprisals.  How can a regulatory system get around that?  Well, by speaking to staff in private perhaps.  Somewhere, among the Waynes and the Grahams there must have been someone with some kind of awareness that all was not right.  By ensuring staff are aware of the appropriate channels for expressing concerns, and then ensuring they act on them.  This requires that staff and services know and trust the inspectors, which in turn may depend on more human contact than a brief biennial inspection.

Of course, the frequency with which a service is inspected will increase the felt presence of the regulator, and the likelihood that sooner or later warning signs will not be picked up.  Places of detention can be like black holes for warning signs; if residents are detained, and visitors are not allowed in, if all channels of communication are blocked or controlled by staff – who is going to raise the alarm?  In my view, it is extremely concerning that the frequency of inspection has seriously declined over the last decade – and especially over the last year.  A recent FOI I put into the CQC showed that expenditure on care regulation in general has declined over the last five years, but beyond this, the proportion of CQC expenditure spent on inspections has itself declined.  In fact, regular inspections of places of detention is not just desirable, it is part of our treaty obligations under the UN Optional Protocol on the Convention Against Torture.  OPCAT recognises, at an international level, that preventive visitation is essential to ensure that people in places of detention like Winterbourne View are not subjected to inhuman and degrading treatment.

Regulation relies upon obtaining information and acting upon it.  In many ways the fact that shocked me most in the Panorama program was that a former nurse at Winterbourne View had alerted the CQC to the abuse there three times, and they had not acted.  In my view there can be absolutely no justification for this.  It is simply not enough to say that this was a ‘misjudgment’ on the part of the CQC.  I would like to see Paul Burstow call upon the CQC to conduct a full internal inquiry into how their supposed risk-responsive systems could have missed this.  I would like the results to be made public.  In my naivety I had believed that their new ‘responsive’ methodology would have investigated any allegations of abuse automatically, particularly for such vulnerable patients, leaving no room for 'judgment' (and hence 'misjudgment') at all.  I am disturbed to wonder how many other alerts they have ‘misjudged’ and not investigated as a matter of course.

Ordinarily in the fallout from these abuse scandals, the focus is on the individual staff members and the management of the organisation.  Some broadsheets note that the scandal was a symptom of regulatory failure, but few take this up further with any real enthusiasm (the Independent and Community Care being  exceptions).  Beyond public censure, what incentives does the CQC actually have to improve?  It’s pretty unlikely anyone could, or would, bring a successful civil action against them for failing to ensure their rights were protected.  You’d have a much greater chance of success going after the abusing organisations, and it would be much easier to show direct accountability.  My personal view is that the CQC’s failure to act on alerts from Winterbourne View staff is a major failure in its duty to uphold the Article 3 rights of residents; it is, in itself, a direct breach of their positive obligations under s6 Human Rights Act.  But who could hold them to account for this, and how?  I’m not sure, and I’m not sure how without some kind of pressure on them to improve their practices and increase inspections the overall situation of a crumbling regulatory system will improve.  And yet, ensuring that the regulator takes seriously its duty to uphold the rights of care service users, is the very keystone of the entire system.

Where was everybody else?

One last thing that bothered me, that Panorama didn’t go into, was where were all the other professionals?  Fighting Monsters raises this question as well.  People don’t just end up in places like Winterbourne View.  Someone referred them there, and someone was paying for it.  Undoubtedly everyone on that ward was deprived of their liberty, but were they detained under the provisions of the Mental Health Act, the Mental Capacity Act Deprivation of Liberty Safeguards, or just unlawfully detained?  It’s not a question that’s taken up, but from a legal perspective it’s very important.  If they were unlawfully detained, perhaps police should look at charges of false imprisonment for the management, and it should almost certainly be explored in any civil claims.  If they were detained under the DoLS, who wrote the assessment that detention was in their best interests?  Did they place conditions upon the detention, and ensure they were upheld?  Was this assessment lawful, or should families be looking at issuing proceedings for unlawful detention against those who commissioned the care? [Update 07/06/2011: Roger Hargreaves emailed Vern Pitt at Community Care with his view - which is that the likelihood is they should have been under the MHA, because of the 'primacy principle' that MHA must be used wherever possible. I had to double check, as I'd always been under the impression MHA detention required 'objections', but that was incorrect.  Paragraph 4.18 of the Mental Health Act Code of Practice suggests that DoLS should be used if a person isn't objecting, but Paragraph 4.19 says that if they would have objected, if able to do so, they should be treated as if they are objecting.  I can't imagine why anyone wouldn't object to being at Winterbourne View]

Towards the end of the program Mansell calls for locked wards like Winterbourne View to be closed down.  I don't disagree with him, but I would caution that much of the abuse in Cornwall occurred in supported living settings.  Often what distinguishes a  place of detention from true supported living is not its legal status, but the practices of staff.  This is why I have expressed concern that the courts are overly preoccupied with surface appearances of 'normality' in determining whether someone is deprived of their liberty, and that no deprivation of liberty safeguards are available in supported living.  My preference would be towards developing Article 5 so that it recognises the intrinsic vulnerability of people who are subject to high levels of supervision and control of staff, whatever the setting.

People who lack mental capacity to decide where to live, who are moved to new accommodation or detained under the DoLS, should be entitled to an Independent Mental Capacity Advocate (IMCA).  People detained under the Mental Health Act have rights to Independent Mental Health Advocates (IMHA’s).  Were these referrals made?  And if they were, were advocates aware of conditions on the ward?  In many ways advocates might have been better placed than inspectors to develop longer term relationships with patients, to gain their trust, and hear what was happening.  Unlike commissioning bodies (and arguably the regulator), independent advocates have no vested interest in painting a rosier picture of ward life than might have been the case.  They aren’t a failsafe guarantee against abuse, but certainly I would have thought they would be better placed than many to identify it and raise the alert.  And where were the social workers, and Clinical Psychologists, and psychiatrists, who we must assume were having some kind of contact with patients?  Were they really oblivious to what was happening?  I can believe quite easily that professionals had very limited contact time with patients and were unable to pick up signs, but I suppose I can’t help but feel that somehow somebody, somewhere, should have noticed something was amiss.  It rather undermines the claims of the mental health professions if doctors and psychologists cannot pick up on behaviour that is indicative of being abused.

And what about family and community? Visiting family shouldn't have been kept at bay in visiting areas, what justification is there for preventing them from seeing the place where their loved ones are living?  Many families in the Panorama program spoke of a sense of exclusion from their children's care plans.  There is something that sounds romantic and old-fashioned about emphasising the importance of involvement with family in care provision, of keeping people in places where they have connections and roots.  Yet isolation from family and distance from home communities are common ingredients of abuse of all kinds - institutional, or cases like that of Steven Hoskin.  60% of people with learning disabilities are placed 'out of area' due to a shortage of services, how can family and communities be expected to look out for them in these circumstances.  Someone once commented to me that there's something very frightening about being in a situation where your only human contacts are with people who are paid to spend time with you, and you've got no real friends watching your back.

Even an adequate regulatory structure, even advocates and detention safeguards and whistleblowing procedures that were effective and protected staff from retribution, we would only be likely to curb some of the more horrific incidents.  It would not, of itself, have remedied the overwhelming sense of boredom, hopelessness and futility of ward life.  I have no hesitation in agreeing with the filmmakers that this was a major contributory factor to both the distress and ‘challenging behaviour’ of residents, and the terror inflicted upon them by staff.  Monsters are made, not born, and whilst I don’t want to mitigate what the staff did, their behaviour was in many ways congruent with a overarching and desolate ethos of care.  Of warehousing, of containment, of people reduce to ‘bare life’.  Care expert Jim Mansell recoiled in horror from the film, commenting that the staff had failed to regard the residents as people, as human beings like themselves.  Their acts arose from a failure of recognition.  Is this so very surprising, in the context of a care system that places little value on the very qualities that make us human: friends and family relationships; meaningful work; inclusion in the community; civic engagement?  To staff, they were just beasts to be kept alive and contained.

More reading
All the major newspapers have produced coverage of the program; for some it was their headline item. The Guardian, also a commentary by Keith Smith

• The Independent
• The Daily Mail
• The Telegraph

Community Care also has some excellent in-depth coverage, including discussion of the regulatory structure, a guide to whistleblowing, and a blog piece expressing concerns that there may be other situations like it.  And if you haven't read it already, blogging social worker at Fighting Monsters gives her view here.  And Connor Kinsella writes an interesting commentary here.  I also read a great post on the topic, asking many pertinent questions, by blogger Scottish Mum, here.

You can read the CQC's response to the program here.  The BBC has an article written by Panorama's undercover reported, describing his discomfort in watching the abuse.  I have to say, whilst I recognise the importance of the footage in asking serious questions about the care system and providing police with adequate evidence for prosecutions, I do feel uncomfortable thinking about what he stood and witnessed without intervention.

UPDATE (01/06/11): Paul Burstow has announced an investigation into the CQC and the local council, South Gloucestershire, and their actions in this affair.  I was interested to note that the CQC's extended press release gives  more detailed chronology: they were alerted to concerns by a member of staff in December, but had already been contacted by the local authority themselves in November.  They local authority were the 'lead safeguarding' team, but it took until February to set up a meeting.  The CQC did not contact the whistleblowing staff member to find out about the concerns in more detail, but acknowledge that had they done they would have followed up with an inspection of the hospital.

ANOTHER UPDATE (02/06/11): The government has announced that the Department of Health will not, after all, be conducting or commissioning an independent investigation into failings by the CQC and local authority; they will rely on the findings of internal investigations carried out by CQC themselves.  This decision has been criticised by Labour as a U-turn in 24 hours.  The National Care Association have written to the Minister for Social Care, Paul Burstow, asking for an inquiry into the wider role of the CQC beyond the issues as Winterbourne View.  Meanwhile Community Care have learned that the CQC may be taking enforcement action to close Winterbourne View within weeks.