Improving Enforcement in Adult Care Homes

Another week, another consultation.  The Department for Business, Innovation and Skills (DBIS) are holding a review of regulatory enforcement in the adult social care sector.  The website says:

In this review, we are asking anyone involved or interested in the adult care home sector to let us know their views and experiences on how current enforcement of regulation in this sector is working. This is part of an initiative to drive up standards and enable providers to achieve the highest standards of care, while removing confusing bureaucratic requirements that divert carers from meeting the needs of residents.

Like water dripping on stone

Image by Hans

The CQC published its State of Care Report today.  In it, on pages 104-5, is a sneak preview of a brilliant piece of work they're doing on restrictive practices in health and social care institutions.  Restrictive practices were one of the concerns which emerged from CQC's thematic study of learning disabilities services, conducted over the last year in the wake of Winterbourne View.  In these reports CQC describe the following concerns about restrictive practices in care services:

Incapacity and tenancies - new guidance, but could there be trouble ahead?

The Court of Protection has issued some new guidance (here) on when it is advisable to make an application to the court in relation to a tenancy for a person who lacks the mental capacity to enter into a tenancy agreement.  This replaces earlier guidance issued last year.

As readers may be aware, last year a tribunal ruled that housing benefit was not payable to cover rent incurred through a tenancy agreement that was entered into on behalf of a person who lacked capacity  without the requisite authority of an LPA, deputyship or order of the Court of Protection.  The ruling in Wychavon District Council v EM [2011] caused significant consternation among housing providers, and groups involved in the care of adults with learning disabilities, as potentially it cast doubt on the viability of many supported living arrangements.  At the time of the original ruling, Neary Legal wrote an excellent post explaining why he felt the Wychavon ruling was flawed, and earlier this year the judge returned to the ruling and reversed it (see Nearly Legal's summary of this second decision here).  This turnaround must come as a huge relief to local authorities, carers, housing providers and those supported living residents whose very homes were potentially at risk as a result of the ruling.  I should expect it's something of a relief to the Court of Protection as well, who could have been flooded with emergency applications for orders for tenancy agreements!

3. DoLS v Guardianship - Summary and discussion

Update (December 2012): These posts are fairly out of date and contain some inaccuracies.  I've given them an overhaul, and you can read and download and updated and corrected version at DoLS v Guardianship - Redux.

Several knowledgeable bodies and individuals have suggested that guardianship under the Mental Health Act 1983 (MHA) might be a preferable framework for community based detention than the deprivation of liberty safeguards (DoLS). I have compared the two frameworks on a range of issues in two previous posts (Part 1, and Part 2).  For those of you who prefer a printer-friendly word document, and would rather read this in one piece, here's a pdf version of all three documents that I've prepared (very kindly hosted by Celtic Knot Solicitors, so you don't have to create a Google Acount to read it).  And, two days after writing this post here's a brand new DoLS and guardianship case, with a very interesting comment from Jackson J:

It is a truly unhappy state of affairs that the law governing the fundamental rights and welfare of incapacitated people should be so complex. As this case shows, its intricacies challenge the understanding of professionals working in the field and are completely inaccessible to those for whose benefit the legislation has been devised, including those with a relatively high level of understanding, such as Mr C. This judgment, while keeping citation from statute, regulation, codes of practice and reported cases to the necessary minimum, still remains more focused on technical issues than I would like

If you’ve skipped to the end of these three posts, here’s what you’ve missed in a nutshell: 

2. DoLS v Guardianship: Appeal and review mechanisms

This is the second post in a series of three comparing guardianship under the Mental Health Act 1983 (MHA) with the Mental Capacity Act 2005 deprivation of liberty safeguards (DoLS).  The first post explains why some people have argued that guardianship would offer better safeguards than the DoLS against arbitrary detention.  In that post I explore the criteria for entry into each regimes, the coercive powers each regime affords public bodies, and the role they give to families.  In this, the second post, I will look in detail at the appeal mechanisms, and consider whether they are compliant with Article 5(4) of the European Convention on Human Rights.  If you are short of time, I strongly recommend you skip to the third and final post, which offers a summary and some thoughts on why both regimes for community based detention will have significant difficulties in practice.

1. DoLS v Guardianship: Applications, criteria and powers

Having written my thank you card to blog readers, I thought I’d kick of 2012 with a long-promised post on the deprivation of liberty safeguards (DoLS) and Guardianship. In true Small Places style, this will be not be a short one... in fact, it’s such a monster that I’ve decided to break things up into three separate posts. The first (this one) is on the criteria and powers of DoLS and guardianship; the second is on the appeal mechanism.  These are very long, and if you're pressed for time I recommend you skip to the third and final post which provides a summary and a general discussion of the issues.  Even so, I have a horrible feeling this might be one of those posts I spend hours on, and about 3 geeks like me actually read... Still, all fodder for the thesis, and this way I can kid myself I’m working.  I'm very aware that I'm much more familiar with DoLS than I am guardianship, so please alert me to any glaring errors, and I'd also welcome any guest posts or comments on people's views on these issues.

The question: Would guardianship have been better than the DoLS? 

Monitoring detention under the MHA and the MCA

Today the CQC published their latest annual report on the Mental Health Act (MHA). As with their last report, it gives a detailed whole-system analysis of the functioning of the MHA, with particular attention to the experiences of detained patients, and how effectively their rights are being protected. In my (admittedly quite idiosyncratic) view, the CQC’s monitoring of the MHA is one of its greatest strengths. It is no exaggeration to say that its work in the field of detention monitoring for mental health is world leading, and reflects the considerable experience, knowledge and independence of the MHA commissioners at the CQC. I wanted to use this post to explore what exactly makes the CQC so strong in this field, and what we could usefully learn from this to apply to how the deprivation of liberty safeguards (DoLS) under the Mental Capacity Act 2005 (MCA) are monitored. One thing that will, I hope, become clear in this piece is that the CQC face a considerably greater challenge in monitoring the DoLS than the MHA. A lot of the infrastructure that CQC rely upon in their monitoring role simply isn’t there (yet) for DoLS to enable a whole-system analysis. To put this in perspective, the MHA is in its third decade, the DoLS are tottering into their third year, and so things may well change in the future. 

Has the CQC over-promised?

Just a quick post... I've been musing on the late evidence submitted to the Mid Staffordshire Inquiry by CQC whistleblowers Amanda Pollard (a compliance inspector) and Kay Sheldon (a member of CQC's board).  I think Pollard and Sheldon both have to be commended for their bravery; it is not easy speaking out about an organisation you are still involved in.

Loopholes in human rights protection - let's get it right this time

After two posts yesterday I had promised myself no more blogging until next week, but I wanted to offer a couple of comments on today's report on the inquity into home care (also known as domiciliary care) by the Equality and Human Rights Commission (EHRC).  I'm really glad the EHRC conducted this inquiry, and they've done a really thorough job of it.

Why doesn't the Human Rights Act 1998 apply to home care?

Why no care regulator could ‘police’ the Mental Capacity Act 2005

Last week, in my commentary on the Court of Appeal ruling in Cheshire West and Chester Council v P, I expressed my disappointment that the deprivation of liberty safeguards would no longer apply to many thousands of adults like P, who as a result of an ‘impairment of the mind or brain’ are subject to very restrictive forms of care.  One of the responses my commentary received was from Carl Gardner, a very talented legal blogger and experienced barrister and government lawyer in his own right.  Carl wrote:

The inspection frequency pendulum swings again?

As regular readers of this blog will know, I am interested in how human rights can be protected through social care regulation.  A while ago I wrote a piece which discussed how over the last decade the approach to regulation of social care had changed from a methodology that relied upon high levels of inspection to a methodology that used risk-based proportionate inspections.  I wanted to follow up on a couple of things from that piece.

Article 8 and tea without sugar

The Care Quality Commission and the Equality and Human Rights Commission  have a Memorandum of Understanding to facilitate them working together to promote a human rights approach to social care regulation.  They have issued some new guidance for CQC inspectors to help them understand and promote equality and human rights compliance in care settings.  I've just had a quick look through the guidance, and I am really impressed by the approach they are taking.  Not so long ago I was bemoaning the untapped potential of Article 8 in social care on the UK Human Rights blog.  The CQC and EHRC guidance makes clear that even the "small things" have potential human rights implications, as this example from this document (pdf) shows:

Speaking truth to power

The House of Commons Health Select Committee (HSC) have published a report (also here in pdf form) on their annual accountability hearing with the Care Quality Commission (CQC).  You may recall that earlier this year the HSC gave the CQC rather a grilling over the massive drop off in inspections (which I've discussed previously on this blog).

The report heavily criticises CQC's leadership for the fall-off in inspections, recruitment of inspectors, the 'Excellence' award, their whistleblowing procedures, over-reliance on Quality and Risk Profiles etc, but the reasons it gives for doing so are quite interesting politically.  On scanning through the report the overwhelming impression is of an organisation that was given an impossible task on impossibly tight resources.  From the one-third cut in funds when the three predecessor commissions were combined, to the government-imposed freeze on recruitment of non-front line staff (apparently inspectors are 'back office'), to being required to re-register all providers and a whole bunch of new services on these limited resources, it seems as if CQC were asked to achieve the impossible by parliament and the government.  The report acknowledges that, and yet it still slams the CQC's leadership for failings.  Why?  Because:

Round up: Personalisation, Disability Hate Crime, the role of CQC and the future of services after Winterbourne View

It's been a busy week in adult social care, and I'm struggling to keep up - so I've selected a few issues that have caught my eye and offered links and comments.

Personaliation and Resource Allocation Systems

I've been bowled over by the response to last week's blog post on personalisation and Resource Allocation Systems.  Clearly it's a topic of interest to lots of people.  Fighting Monsters has written a great post about it here, in which she describes her own experiences of working with the RAS and questions whether the personalisation dream is dying.  Mithran Samuel at Community Care has got some interesting comments from various organisations on transparency and RAS's - including the councils.  And I've also been pointed to this brilliant post by Allan Norman on the Cambridgeshire judgment.  He comments:

It seems all too easy to predict a chain in which:

• first, services are provided in cash rather than in kind;
• then, the link between the value of the care and the amount of the cash payment is obscured;
• next, that link is formally severed;
• finally, it is the service user's problem that budgets and targets drive the cash payment with no reference to need whatsoever

There's no place like home - thoughts on Rose Villa

What does it mean to call a place a home? Homes, like people, come in all shapes and sizes, and the concept of ‘home’ is almost certainly what Wittgenstein called a ‘family resemblance’ term. That is, the many instantiations of ‘home’ share a collection of overlapping similarities (like families), but there is no common ‘essence’ to pick out and say “this is what we mean by home”. Home is a relational concept: for a space to be a home it must stand in some kind of relation to a person (or people). But a building is not a home merely by virtue of a person being in it; there are behaviours we associate with homes (although they might be done in other places). Evidently there is an important emotional and psychological content to whether we experience a space as a ‘home’, rather than a place to eat or rest. I propose that there are (at least) three legally salient characteristics of home: autonomy, privacy and permanence. Without expounding a detailed ‘philosophy of home’, I want to explore two issues that come up a great deal in care: whether institutional care settings can erode a sense of ‘home’ through erosion of autonomy and privacy, and the effects and significance of the enforced closure – or move from – an institutional care setting. Both these issues are well captured in the recent fate of Rose Villa[1], a care home run by Castlebeck and heavily criticised in a recent CQC report, and which - it was announced yesterday – will now be closed. 

Is Personalisation inadvertently criminalising carers?

A while back, whilst researching the requirements for registration as a domiciliary care provider with the Care Quality Commission (CQC), I became concerned that the definition they were applying might pick up carers who employed a personal assistant on behalf of a person who lacked capacity.  This would mean that those carers would be obliged to register with CQC as domiciliary care providers, or they would be guilty of a criminal offence.  As the Personalisation agenda is rolled out, more carers may use direct payments to employ a personal assistant to provide support for someone they care for who lacks the capacity to employ them directly themselves.  Under s10 Health and Social Care Act 2008 any person who carries on a regulated activity without registration is guilty of an offence, and could be liable for a fine of up to £50,000 or sentenced to a prison term of up to twelve months.  Is it possible that Personalisation could, therefore, be criminalising carers?

Regulation, Rights and Risk

[Note: This post was updated in August 2011 and can be downloaded from here (pdf).  The updated article contains better statistics and is focussed more on the role of inspection to prevent abuse and neglect, rather than human rights per se.  I've left the original post up though for interested parties.]

I will be devoting an entire chapter of my thesis to the potential and challenges of a regulatory approach to human rights protection in social care, and there is much to discuss therein.  Whether the founding principles of the Care Quality Commission (CQC) should have been more explicitly human rights oriented, and whether they should have been able to take up individual complaints, as the Joint Committee on Human Rights had advocated.  Whether the CQC’s approach to monitoring the deprivation of liberty safeguards is adequate and compliant with the UN Optional Protocol on the Convention Against Torture (see this blog post and this for more discussion).  Whether the inspection methodology itself is ideally suited to human rights protection and promotion, and whether the care inspecting arms of CQC could perhaps learn something from the former Mental Health Act Commissioners 'visiting' methodology.

In today’s post, however, I will be limiting myself to considering a single issue: the case for a shift to a risk-based approach to inspection, justifying a significant overall reduction in inspection frequency.  I will not be discussing in any great detail specific human rights issues, but it is the potential for CQC to act as a human rights inspectorate that leads me to consider this in the first place.  I am very well aware that inspection is not a magic wand for human rights issues; it offers no cast iron guarantees against violations.  I can tell you, having worked for many care providers, that there are a huge range of things that get tidied away before the CQC’s announced visits.  There are behaviours that magically disappear when CQC inspectors are on site.  However, inspection can – and does – pick up on the more glaring problems with a care provider, and can also have an important preventive function where there is a strong likelihood of a visit from an inspector.

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.

CQC's (very slim) first monitoring report on the DoLS

The CQC has a legal duty to monitor the deprivation of liberty safeguards.  Regulations give them powers to visit hospitals and care homes, interview patients or residents, and inspect the paperwork in relation to anyone who is deprived of their liberty under the safeguards.  They are required, by law, to produce an annual report for parliament, as soon as possible after the end of the financial year  'when requested to do so by the secretary of state'.*  The safeguards came into force in April 2009.  It is now March 2011, and this is the first report we have seen by CQC (here).  There have been other reports, though not by the CQC.  The NHS Information Centre produced what is essentially a statistical report into the DoLS last year (here); the report told us that there was very low and uneven uptake of the safeguards, but offered little analysis of why that might be the case.  The Mental Health Alliance report last year (here) helped to fill that vacuum of analysis; they drew from their considerable pool of experience of their members to paint a picture of a legal framework that had ‘barely begun to function’.  Key problems identified by the Alliance included poor understanding of the safeguards by both managing authorities and supervisory bodies, and in some cases outright resistance to their application or manipulation of their provisions.  They stressed that there were many disincentives to their use – excessive bureaucracy, unwelcome additional scrutiny of care practices, empowering detainees and relatives who might object to care plans – coupled with very little real threat of litigation if they were not applied, or applied inappropriately.  Some might say that this was a situation when a regulator, who had oversight not only of the managing authorities of care homes and hospitals, but of the supervisory bodies themselves, could have a powerful impact on compliance.

The trouble with MEG

In so many ways, the case of MIG and MEG highlights problems with the Court of Protection and the deprivation of liberty safeguards.  In the first place, it’s a crucial case that significantly narrowed the parameters of what is considered to be a ‘deprivation of liberty’ in social care settings, and yet it’s not even been put on the Bailii website where lawyers find most judgments.  You can find it here, thanks to the excellent Mental Health Law Online website, but only because lawyers involved in the case have made efforts to get it there.  Given how much rests on these cases, given how practitioners in social care are crying out for more clarity about what a ‘deprivation of liberty’ is, why isn’t the Court of Protection routinely making these cases available?  I still speak to practitioners who haven’t heard of this case, but rest assured that care providers facing legal challenges are relying upon it to argue that the deprivation of liberty safeguards don’t apply to them.  Before I go on to discuss the ruling itself, I should say that the case was heard in the Court of Appeal in October 2010.  I know this, because it’s briefly mentioned in the excellent 39 Essex Street public law newsletter.  What we don’t know, even though the case is really important and it was heard three months ago, is the outcome.  In fairness to those involved, these cases can drag on if more evidence is needed, and it doesn’t help that the Court of Protection is woefully underfunded for the amount of cases it hears.  But we do know that a great deal hangs on the outcome; how the Court of Appeal rule in the case of MEG and MIG could significantly change the landscape of the deprivation of liberty safeguards.

The case of MEG and MIG concerned two sisters who both have moderate to severe learning disabilities, and who were removed from the care of their families due to ‘violence, sexual abuse of a sibling, neglect, chaos, and where her mother put her own needs and wants before her children.’ [208, 214].  MIG was 17, and lives with her foster carer, who she calls Mummy.  This is the kind of care arrangement HL in the Bournewood case enjoyed when he lived with Mr and Mrs E.  The legal and ethical issues may well be different in a foster placement, so I’m not going to talk about MIG in this post (although I will post on family and foster care another time).  MEG was 17, and lives in a care home.  It’s important to note that the deprivation of liberty safeguards could not apply to MEG, as she was not yet 18 and her care home was not ‘registered for the purposes of Schedule A1 of the Act’ [168].  This means that if she were found to be deprived of her liberty, the care provider (which is presumably a domiciliary care provider, or a children’s home, if it is not registered for the Act) would have to make a costly and lengthy application to the court for authorisation, and would have to seek periodic reviews.  Unsurprisingly, this is an eventuality that most care providers are keen to avoid if possible.  It’s one of the many inexplicable ‘holes in the DoLS’, that it doesn’t apply to many care settings where a person can be deprived of their liberty.  In the case Re RK the judge heard evidence that if children in care homes could be regarded as deprived of their liberty, the resource implications for local authorities – including compensation claims for unlawful detention – could be enormous [6-13].  Judges are usually careful to stress that concern for resources cannot influence their decision on whether someone is deprived of their liberty, but evidently local authority lawyers think it must have some sway or they wouldn’t bother to present this aspect of their cases.

So, the feature of the present case I am interested in is how the judge came to the conclusion that MEG was not deprived of her liberty.  MEG lives in a care home.  She has one-on-one, and sometimes two-to-one support [215].  For people who have not worked in care, it’s hard to convey how intense it can be working with someone one-to-one or two-to-one.  It means, in essence, that they are never left alone and are subject to ‘continuous supervision and control’.  Note the phrasing.  There are people with physical disabilities who require the constant presence of support workers to help them execute actions in their everyday lives – but they don’t require ‘continuous supervision’ exercised so as to ‘control’ them.  It seems as if the evidence heard by the court regarding physical restraint is unclear [217] – it is not referred to in the care plan, but it is mentioned in the context of controlling aggressive episodes.  Later on [233] the judge says that ‘Neither is restrained save for immediate purpose of ensuring safety, and, in the case of MEG, for her immediate protection and that of others when she has an outburst.’  This is a peculiar comment, since under s6 Mental Capacity Act restraint may only be used in these circumstances.  What the judge appears to be saying is that neither are restrained unlawfully; but surely, if restraint is relevant to whether a deprivation of liberty is occurring and needs authorisation, it must mean lawful restraint?

MEG is also prescribed Risperidone, a sedating antipsychotic.  Certainly in dementia care, Risperidone is widely regarded as a form of chemical restraint (see this report, for instance).  MEG is prescribed it to ‘help with anxiety’ [216].  ‘Anxiety’ can refer to a wide range of states.  In care homes I have worked in, people were given PRN sedatives for ‘anxiety’ when their behaviour became unmanageable.  It was never referred to as restraining them; the pathologisation of behaviours allows us to view what is in effect often an act of coercive control as ‘treatment’.  I’m not arguing that MEG shouldn’t be on Risperidone, but I think it is unfortunate that ‘No oral evidence was given about this medication and it uses at the hearing’ [216].  The judge finds the medication does not play a part in contributing to potential deprivation of liberty, because she ‘is not medicated to prevent her from leaving’ [217]. It would be highly unusual for medicine to be explicitly administered in order to prevent someone leaving a facility.  I don’t think many doctors would prescribe it for that purpose; but that could be its effect, all the same.  Even if it did not ‘prevent someone leaving’, it is a further manifestation of the 'complete and effective control' exercised over MEG’s body and mind by those who care for her.

The judge also considers whether MEG is ‘free to leave’.  She finds that if she ran away, she would be restrained and brought back [233], but elsewhere states:

Freedom to leave has to be assessed against the background that neither wants to leave their respective homes, there is no alternative home save that of their mother where neither wishes to live, and neither appears to have the capacity to conceptualise any alternative unfamiliar environment. [255]

This is a very interesting statement of a crucial issue regarding whether a person is deprived of their liberty or not.  In the view of Mrs Justice Parker, a person may not be considered to be deprived of their liberty if they have nowhere else to go, or show no desire to leave.  On the first point, whether there is an ‘alternative home’, it seems to me this cannot count against whether a deprivation of liberty is occurring.  The Convention permits, for instance for detention of vagrants (Article 5(1)(e)); they are vagrants precisely because they have nowhere else to go.  In fact, in one famous vagrancy case a lack of viable alternative residences was regarded to invalidate consent to detention, because consent could be regarded as ‘coerced’ by circumstances ("extralegal coercion").  It would also lead to the rather odd conclusion that had HL been informally detained at Bournewood, but for some reason his carers could not take him back, he would have been considered more ‘free’ than when they were fighting to get him home.

This leads me to the question of compliance.  The underlying message of the Bournewood judgment is that detention of adults who lack the mental capacity to consent to confinement is a deprivation of liberty even if they are compliant.  In a hospital setting, in fact, the 'rule' is that compliant but incapacitated patients who would be prevented from leaving if they attempted it have to be detained under the safeguards because they are ineligible for the Mental Health Act - just like HL.  It seems that in this judgment (and others) the relevance of compliance to whether a ‘deprivation of liberty’ has occurred in a care home is splintering away from the criteria applied in hospitals.  It is almost as if compliance is being treated as consent to detention, which would be illegitimate where people lack capacity.  There are arguments that noncompliance increases the intensity of the restrictions, and thus tips the balance into deprivation of liberty; but I’ve yet to see a published case in a care home where someone was compliant and content and was regarded as deprived of their liberty (suggestions in comments very welcome on this).  We are in danger of viewing compliance not as an intensity ‘factor’ but as determinative of the issue.

This case was discussed at a conference I attended recently, where the excellent Neil Allen argued the key reason why MEG was not considered to be deprived of her liberty was that the care home was her home.  This seems like an attempt to bring her situation in line with other cases where people subject to restrictive care, including ‘continuous supervision and control’, are not regarded as deprived of their liberty because it occurs in the family home. The family home issues aside, to my mind there are significant problems with arguing that the care home constitutes a ‘home’ for MEG.  Many of the features that we would naturally associate with home are simply not present in care homes.  For me, calling a place my ‘home’ is very closely bound up with my ability to exercise my autonomy and control my surroundings.  I choose where I live.  I choose who comes into my home, and retain the right to eject them from it if I desire to.  I choose who I live with.  I choose how to occupy myself within my home - there are no 'out of bounds' spaces, and I choose how to dispose of the resources within it.  A loss of control over one’s surroundings, over who one lives with, over one’s personal privacy, is in many ways what we dread about admission to a care facility.  It is true that MEG is likely to be subject to a similar level of control wherever she lives.  To my mind, this calls into question whether – unless the Reach Standards are carefully applied – any facility caring for people who are subject to this level of control can be regarded as a ‘home’.  Indeed, in the case G v E it was argued that because he did not have ‘exclusive occupation’ of the property, because care staff came and went on their choosing and not his, it was a ‘sham’ tenancy.  This issue was not pursued for other reasons, but it is likely to come up again in court.

One of the most highly criticised aspects of the judgment in this case, is that the judge held that the 'reasons for' the restrictions were relevant to whether they contributed to a deprivation of liberty.  The judge was heavily influenced by the ‘kettling’ case, Austin, where the House of Lords controversially held that protestors ‘kettled’ for hours by the police were not deprived of their liberty because the police did not intend to detain them.  The Austin case has been really heavily criticised for narrowing the scope of Article 5 of the European Convention on Human Rights; it is going to be taken to the European Court of Human Rights.  If the ruling is condemned, as many believe it will be, then cases like that of MEG may be unsound.  Barrister Paul Bowen and solicitor Ben Troke have both pointed out that this line of argument makes it very hard to see when the safeguards could, logically, ever be applied.  A key feature of the Mental Capacity Act is that restrictions on liberty must always be in someone's best interests, and a proportionate response to risks.  A key criterion of the deprivation of liberty safeguards is that deprivation of liberty may only be authorised when it is in a person’s best interests.  If parliament had felt that restrictions ‘in a person’s best interests’ didn’t count towards deprivation of liberty, it is hard to see why they would have drafted the legislation the way they did.  Lord Justice Munby put it well in the case JE v DE when he said:

The argument, if taken to its logical conclusion, would seem to lead to the absurd conclusion that a lunatic locked up indefinitely for his own good is not being deprived of his liberty.

The overall tenor of the judgment is that restrictions in the name of benevolent paternalism cannot amount to a deprivation of liberty.  To my mind that goes against the entire grain of the deprivation of liberty safeguards, and it goes against the grain of my instincts as well, having worked in plenty of places similar to where MEG is cared for.  Mrs Justice Parker enthusiastically cites Lord Hoffman’s dissenting judgment in a control order case, where he states:

Why is deprivation of liberty regarded as so quintessential a human right that it trumps even the interests of national security? In my opinion, because it amounts to a complete deprivation of human autonomy and dignity. The prisoner has no freedom of choice about anything. He cannot leave the place to which he has been assigned. He may eat only when and what his gaoler permits. The only human beings whom he may see or speak to are his gaolers and those whom they allow to visit. He is entirely subject to the will of others.

Aside from the legal quibble that it is rather bad form to rely upon a dissenting judgment that the majority of the house disagreed with (and not to even qualify it by acknowledging it was a dissenting judgment when citing it), the choice of quote seems to me rather peculiar.  The situation of MEG does share more than a passing resemblance to Lord Hoffman’s prisoner.  Do you think MEG chooses what and when and where she eats with the same autonomy as you?  Do you think she could decide to eat twelve mars bars at midnight on a picnic if she felt like it?  Could she even choose to eat a different meal to what’s ‘on the menu’ that night?  Or to eat later, or earlier, than staff decided?  And there are restrictions on who MEG can see; not only the restrictions imposed by any care home on ‘reasonable’ times for visits, but the court has previously placed restrictions on contact with her family – no doubt with good reason.  How many care homes would just let any person come in on MEG’s invitation, regardless of what they look like or whether they know them?  Because she is subject to ‘continuous supervision and control’, every decision that MEG makes is subject to potential overrule by those who care for her.  This is what is known in Republican philosophy as a ‘state of domination’; regardless of how often, in practice, one is interfered with, the ever-present possibility of interference is regarded as detrimental to liberty.

The point is, that for better or worse, MEG is ‘entirely subject to the will of others’.  This may be no bad thing if that will is exercised to protect her, and doubtless those caring for her strive to do so.  But the point about Article 5 is not that it outlaws deprivation of liberty in all circumstances, but that it recognises the inherent dangers within it and seeks to minimise them.  Dangers like being excessively vulnerable to the arbitrary, sometimes capricious, will of other persons.  The point of the safeguards is to impose external scrutiny, to ensure that coercion is kept to a minimum, that it never becomes abusive as it so easily could.  With dwindling visitation from CQC, with care staff under increasing pressure to deliver more with less, surely it seems appropriate that someone in MEG’s position – who is highly vulnerable – should have access to additional safeguards to ensure that her vulnerability is not taken advantage of?  And even if it never is, even if her care is executed to ‘least restrictive’ ‘best interests’ Mental Capacity Act perfection, it still seems uncomfortable to deny that she is not, in some way, less at liberty than you or I.  I have heard places like those that care for MEG referred to as ‘bittersweet prisons’ by those who have been confined in one.  This post by autistic blogger Amanda Baggs sets out eloquently what is wrong with the view that being subject to continuous control, even in one’s own best interests, is not experienced as a loss of liberty:

I have a recurring nightmare. I am in a beautiful building with a hushed, playful atmosphere. I have been there as long as I can remember. Everything I could possibly need is there. There are no locks on the doors. People follow me everywhere, but just out of sight, to give me the illusion of freedom. They want only the best for me. I can go outside and play in the woods, and I climb trees. And they treat me like a child. Everything is controlled perfectly. Nothing seems to be wrong, but nothing seems to be really right, either. Everyone is very sweet and very kind and very nice and very forgiving, but there is no freedom. Anywhere. This makes the apparent happiness of the place empty, shallow, and false. That, to me, is the essence of the intangible horrors I fear. Only when I wake up from this nightmare do I realize it’s a nightmare, and that in turn makes it all the more frightening.

It will be interesting to see what the Court of Appeal think.  The cynic in me wonders whether they won’t concur with this judgment.  The problem is, in many ways it suits a lot of people rather well.  No care provider wants to think of themselves as ‘depriving someone of their liberty’ (perhaps they should have stuck with 'Protective Care'?).  If she is found to be deprived of her liberty it will have major resource implications not only for care providers who have seek authorisation, but also for local authorities in similar cases who will have to apply the safeguards.  Potentially it will be a drain on the resources of the courts themselves, not to mention the Legal Services Commission.  Not only that, but apparently whether the safeguards are extended to include 'supported living' hinges on the outcome of this case.  It could be a very comfortable ruling for everyone; let’s hope it’s that comfortable for MEG and those others like her.