DoLS: Back to the drawing board?

Is it time to go back to the drawing board with DoLS?  This week the Mental Health Alliance (MHA) published a draft report on the DoLS (pdf) in which they declared 'The DoLS scheme  is not fit for purpose in its present form'.  The report release coincided with an excellent program by BBC Radio 4 on the DoLS, The Report, which interviewed several key players in the DoLS - including Charles J, the Official Solicitor and Roger Hargreaves who authored the MHA report.  Taken together with conflicting reactions to the Cheshire ruling, there seems to be real confusion about what the DoLS are for, and how they should be applied.  I sense a real appetite for reform, but less consensus of what those reforms should consist in.

CQC functions to prevent torture and inhumane or degrading treatment under threat?

In a report published this month by the Ministry of Justice, that is probably likely to pass under the radar of most people concerned with issues of community care, a very ominous warning was sounded:

In an organisation of CQC’s size and broad scope, there will always be a tension between the different functions it performs. In 2010–11, an internal restructuring of CQC threatens some roles dedicated to the monitoring of the MHA. A review of visits to those detained under mental health law is also underway, although this is designed to enhance effectiveness. As CQC’s overall budget comes under pressure it will be a challenge to maintain its focus on its OPCAT-related work. (p33)

Anyone concerned with the rights of people who are deprived of their liberty in psychiatric hospitals, ordinary hospitals, care homes or any other sites of care should sit up and take notice of this.  In fact, you should take out your pens and start writing and asking the CQC exactly what this comment is all about.  Essentially, the author of this section of the Ministry of Justice report is suggesting that vital functions carried out by the CQC are under threat due to austerity cuts and restructuring.  What CQC function could possibly be more important than ensuring the most vulnerable people cared for in hospitals and social care are not subjected to torture, or inhumane or degrading treatment?

What is this report all about?

In 2002 a United Nations treaty came into force called the ‘Optional Protocol to the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment’, or OPCAT for short.  The United Kingdom ratified OPCAT in 2003.  The treaty requires all signatories to establish ‘National Preventive Mechanisms’ to carry out regular inspections of any places where people are deprived of their liberty to ensure they are not being abused.  Most public and academic discussions about OPCAT concern visits to prisons, police cells, immigration detention centres etc.  However, OPCAT also covers people who are deprived of their liberty as a result of illness or disability.  OPCAT reflects, at an international level, an understanding that people who are deprived of their liberty are extremely vulnerable, and are at excessive risk of ongoing and unnoticed abuse of their most basic human rights.  Think, for instance, of the torture and abuse of prisoners in Abu Ghraib prison in Iraq.  Think, more close to home, of the abuse suffered by adults with learning disabilities in supported living services in Cornwall, uncovered by the Commission for Social Care Inspection in 2005.  I am sure you can think of other cases in the news, or perhaps in your own experience, unprompted.

CQC inspections in hospitals and care homes

Each OPCAT signatory nation can choose how they establish their own preventive mechanism.  In the UK, there were already many systems in place for inspecting most sites of detention, from Her Majesty’s Prison Inspectorate to the Independent Custody Visiting Association.  In total, 18 organisations in the UK make up our National Preventive Mechanism to ensure detainees of all kinds are protected from torture and abuse (see list of them here).  One of these is the Care Quality Commission (CQC).

Before the CQC was formed in 2008, the Mental Health Act Commission (MHAC) was charged with making unannounced inspections of psychiatric hospitals to ensure the rights of patients detained under the Mental Health Act were upheld, and they were being well treated.  The MHAC was the last in a long line of commissions dating back to the Physician Commission, established under the Madhouses Act 1774 to visit madhouses and ensure patients were not being mistreated, and were not inappropriately detained.  This essential function of visitation to ensure detainees in sites of care were not being mistreated has been carried out by a range of commissions over the centuries and its functions are now absorbed by the CQC.

The Mental Health Act Commission was particularly noted for producing excellent biennial reports into the state of care in Britain’s psychiatric detention facilities.  You can still read some of them online here (2003), here (2005), here (2008).  The reports were extremely revealing about the darker side of psychiatric detention, and most likely made uncomfortable reading for many in Whitehall and government.  They have brought to light shocking standards of care.  The 2008 report, containing a list of disturbing incidents (p19), makes gruesome reading: patients who are secluded 90% of the time; patients in overcrowded wards sleeping on the floors of doctors offices; vulnerable women housed on wards where they are sexually abused; a dying man nursed in a dining room whilst other patients eat in there. 

As was increasingly recognised following the Bournewood judgment, people are not only deprived of their liberty in psychiatric hospitals.  The deprivation of liberty safeguards were established to protect the rights of people who are detained in hospitals and care facilities without the protections of the Mental Health Act.  Reading the Ministry of Justice report this month, it was clear that as far as monitoring and rights protection goes, the deprivation of liberty safeguards are very much the poor relation of the Mental Health Act.  The CQC merely noted that their use was ‘limited’; there was no detailed discussion of the living conditions and rights of those detained under the safeguards.  There seems to me no reason to believe that standards of care are higher in these detention sites; indeed, the steady trickle of reports of abuse in care homes and supported living in the media might lead us to believe they are worse.  As has been raised in the past many times by the MHAC themselves, people who are deprived of their liberty in any setting are vulnerable; where these people are disabled or suffer from mental illness, that vulnerability is exacerbated.  The MHAC in fact once cautioned against any sites that detain people with learning disabilities being relatively free of external visitation (here, 3.33).  Since then, levels of visitation in care homes have in fact dropped, and will drop further still (read this article for a discussion of this issue).  Except in exceptional circumstances, supported living services which fall under 'domiciliary care' provision are not subject to site visits at all.  The CQC is increasingly switching over to a ‘light touch’ regulation model which relies upon self-assessment – how many people could honestly believe that incidents like those listed above would be reported this way?

I think there is a very serious question, that has not as yet been publicly addressed by the CQC, as to whether the inspection regime regarding people who are deprived of their liberty under the Mental Capacity Act complies with OPCAT.  Put bluntly: there is a serious question whether the inspection regime for these detainees would be recognised as sufficient in international law as preventing inhumane or degrading treatment.  Any failure to comply with OPCAT would cast serious doubts over the CQC's, and indeed the UK as a whole, compliance with their positive obligations under Article 3 of the European Convention on Human Rights.

Over the years the Mental Health Act Commissioners have championed the rights of all detainees, and tried to draw attention to the particular issues faced by detained women, children, black and minority ethnic groups, as well as the dearth of protection of de facto detainees like HL in the Bournewood judgment.  When the Commission was wound down to become absorbed into the CQC they wrote that they were ‘reassured’ that their functions were not to be diluted, that their ‘warnings’ about the risks that would follow the loss of such functions were heeded (final report, 2009, p12).  The comments in the Ministry of Justice report this month suggest that they breathed a sigh of relief too soon.  Is the passage quoted above the last gasp of the Mental Health Act Commission?  A signal that we may be reaching the end of the road in a long history of visitation of sites of detention to protect the most basic rights of the most vulnerable members of our society?

I can find no coverage of this issue elsewhere.  I can see nothing on the CQC’s website that reflects a possible retraction of their visiting scheme.  But this report signals clear rumblings from within the CQC that some of its most vital functions may fall under the axe of austerity.  For anyone who sees value in preventing inhumane and degrading treatment of vulnerable people deprived of their liberty in our hospitals and care homes, I suggest you pick up your pens, and ask them what this is all about.

One month before heartbreak: The human rights cost of the cuts

This blog post is dedicated to the Broken of Britain's One Month Before Heartbreak blogswarm campaign to raise awareness of the impact of the cuts on people with disabilities and their carers. The campaign invites blog posts on related topics from all members of the community; as a researcher in human rights for adults with disability and dementia this is my contribution.



Today in Parliament Maria Miller gave us her assurances that the DLA reforms would not directly violate human rights law. I confess, I haven't examined the small print and don't feel able to comment on whether these particular cuts will be found to directly infringe human rights. As a wider issue though, it seems inevitable to me that in the course of time the cumulative impact of cuts to welfare, social care and related public services will be implicated in human rights violations for some of the UK's most vulnerable citizens. Trying to spell out exactly how the austerity cuts will impact on human rights in the UK is like trying to predict the consequences of global warming: almost every informed sane individual on the planet admits they will cause devastation to thousands of lives, but it's very hard to predict exactly how and where. Loving a challenge, I'm going to try and outline some of the ways the cuts are likely to impact on human rights in social care.

1. Cuts to mobility DLA in care homes will reduce opportunities for residents to access the community; the Mencap report gives convincing evidence that local authorities will not make up this shortfall. For some individuals who lack mental capacity, whose choices and freedoms in residential care are already very limited, this loss of opportunities to access the community and keep up social contacts may tip the balance towards a deprivation of liberty. The DoLS draft code of practice explicitly stated that if people are not supported to access the community, this could lead to a deprivation of liberty. When Steve Scown from Dimensions UK writes that people may become prisoners in their own home, lawyers' ears should prick up. The European Convention on Human Rights Article 5 gives a range of reasons why it might be permissible for someone to be deprived of their liberty – because it's cheaper isn't one of them.  Article 8 rights to development of the personality may also be infringed without opportunities to be involved in the community and activities; the right to family life may also be implicated if loss of mobility DLA results in significantly impaired opportunities to visit family members.
2. As the population ages and councils face massive cuts to their central government grant, it seems inevitable that local authority funded social care will be – indeed is being – badly hit. This is likely to have a range of knock-on consequences. With the loss of the ILF and massive cuts to Supporting People grants it will be increasingly difficult for local authorities to fund expensive packages of care in the community, and these care plans may be overlooked in favour of cheaper placements in residential care. This is a retrograde step after decades of working towards improving opportunities for independent living. Families may well be ripped apart as carers are no longer given the support they need to look after their loved ones at home. Just reflect on that for a minute – what is the point of Article 8 of the Convention if not to keep families together wherever possible? Consider this case, of parents who want to bring their child home from residential care but can't do this without an adequate package of care from the local authority. How many more cases like this will see?
3. When people rely on the local authority to fund their care, the local authority has a duty to consider its resources and find the cheapest way of meeting those needs. We already saw, in a much publicised court case about ballerina Elaine McDonald, how a local authority refused to continue to provide carers to help her with getting to the toilet at night – forcing her to use incontinence pads even though she was actually continent. McDonald, understandably, found this a huge affront to her dignity, but the court found the overriding need to consider resources to be more important. McDonald stated '"I can speak up for myself, but what worries me is what's going to happen to people who can't, people who might have dementia, if they are treated like this?"
4. Sometimes residential care is a necessity, and community options are unviable. Under unprecedented financial pressure to find the most cost effective placements, local authorities may be forced to overlook issues like keeping families within reasonable travelling distance of each other. For some families this may make it extremely difficult for them to see each other at all. Particularly for those in rural areas and who are dependent on public transport (also likely to be drastically cut), it may be near to impossible to find a way to visit their loved ones. Imagine this: your husband or wife moves into residential care, and you never see them again because you can't find a way to get there. It sounds outlandish, but I promise you it does happen. Or, more commonly, you can get there but it requires you to take an entire day's travel – meaning your visits are limited to weekly or less. Even at the moment, out of county placements are not unheard of for people with very specialist needs. Not so very long ago a court forced the London Borough of Sutton to build a specialist home for a very disabled young woman themselves, so she could sustain regular essential contact with her family. I wonder if the courts would find that way today?
5. As care providers compete to provide cheaper care they will be forced to make efficiencies themselves, which in turn may result in more restrictive care practices in a variety of ways. As someone who has worked in care for many years myself I can testify that when care providers make cuts to staffing levels or staff hours it becomes increasingly difficult to provide care in a way that is respectful of people's dignity and maximises their freedom. When there aren't enough staff in a care home, for instance, people may be left for long periods of time sitting in soiled clothing, in their own waste, before staff can get to them. When I worked for a domiciliary care provider I remember social workers refusing to fund an extra emergency call for an immobile woman who had been incontinent with diarrhoea: she could wait three hours until the next visit, they said. I wonder how many more times that would occur now (in this case care staff went in their own time, on an uninsured and unpaid visit, to help her out). When service users present with 'challenging behaviour', staff under extreme time pressures are far more likely to reach for the Risperidone than try and figure out what the cause of that behaviour is and find ways to meet the service users' needs. When there aren't enough staff to man a service properly, residents may be shepherded into a single room and the garden will be out of bounds. Activities co-ordinators will probably be among the first to lose their jobs in cash strapped services. Staff training will suffer as council's scale back free courses on dementia care, person-centred planning, the Mental Capacity Act and human rights. In a thousand indirect ways, more than I can detail here, less staff and more poorly trained staff will mean less freedom and less dignity for service users.
6. As Johann Hari points out in this eloquent piece, brutal cuts to the Care Quality Commission have translated over the years into 75% fewer inspections of care homes. Serious human rights abuses are increasingly likely to be missed under this 'light touch' regime. For people with profound learning disabilities or dementia, for those whose friends and family are not able to visit, not able to recognise the signs of abuse, or not in a position to make a fuss when they do, are at increasingly extreme risk of abuse in a system that relies on the most vulnerable and least able to whistleblow, to raise the alarm themselves.
7. And finally, I could hardly end this piece without mentioning that for those individuals who do suffer abuse, who are injured or subjected to indignity or are unlawfully deprived of their liberty, cuts to the legal advice and representation they need to access justice may be the most cruel of all. Some, very limited, areas have escaped the legal aid cuts (for instance, those who are subject to the deprivation of liberty safeguards, but not those who are subject to unauthorised deprivation of liberty), but the vast majority of sources of legal help and advice have fallen under the axe. Extra-legal advice services like the Citizen's Advice Bureau has announced closures; advocacy services commissioned by local authorities are coming under threat.  The Court of Protection, already under-resourced from the moment it came into being, is likely to come under increased pressure as more packages of care collapse under the strain. The already lengthy delays to resolve these cases will grow in the face of increasing demand and diminishing resources, often at great personal cost to those involved, and no small cost to the state.

So, I hope this post have given food for thought for any austerity sceptics out there, who would have you believe the Coalition's cuts can be met by greater efficiencies and no suffering. The sad reality that will be borne out over the next few years, unless the government undergoes a radical change in direction, is that the austerity cuts may come at great cost to human rights, to human lives.