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Safeguarding Adults with mental health problems and Learning Disabilities
What would we do if we were being abused or ill-treated in hospital or in a care setting? We would tell someone else and hope they would act to stop it happening. Tragically the Panorama programme on the systematic abuse at Winterbourne View(1) showed vulnerable adults with learning disabilities crying out with no one to hear them. Even worse, when an employee reported their distress his concerns were not acted on. So how does law and practice protect adults at risk? First it is important to identify what we mean by risk. Risk for people with mental health problems and learning disabilities includes risk of harm to others, harm to oneself, risk of harm from others, and most shockingly the risk of harm from services that are supposed to be there to protect them.
No Secrets **Update 01/04/2015 - No Secrets has been replaced by the Care Act**
The law and practice around safeguarding vulnerable adults is extensive, but at the same time very complex. Indeed the framework for reporting and acting on safeguarding concerns is not even law itself. The No Secrets document 2000 gives guidance to local authorities and others on how they should respond to concerns about abuse of at risk adults. What No Secrets does is to set out multi-agency procedures to be followed when a vulnerable adult is reported as suffering abuse. It defined a vulnerable person as someone who is or may be ‘in need of community care services by reason of mental or other disability, age or illness’.(2) No Secrets goes on to describe a framework of agencies working together to investigate and manage reports of abuse. No Secrets lays great stress on the importance of awareness training of all staff involved with vulnerable people. One can only wonder at the training that was provided for staff at Winterbourne. However No Secrets is only guidance not law. Health and social care commentators have been describing this as a weakness for sometime now. Lord Justice Munby has commented on the ‘remarkable fact that the formal “safeguarding agenda” in relation to vulnerable adults rests entirely upon Ministerial Guidance’ (3). No Secrets guidance says that when local authorities are alerted to adult abuse, there should be a multi-agency response to investigate the allegations. In the case of Winterbourne View investigations were not instigated when an employee raised concerns in October 2010. Castlebeck (who manage Winterbourne View) said in their response to the Panorama programme that their own policy to report abuse to the local authority was not followed (4).
Health and Social Care Act 2008 (updated 2012)
The Care Quality Commission (CQC) has been under the spotlight for not following up on complaints. The CQC is a regulatory body that was created by the Health and Social Care Act 2008 (updated 2012). It replaced a number of other inspection bodies and was given extensive powers to regulate the operation of health and social care homes. The Care Quality Commission is supposed to check that care providers are meeting certain standards. Those standards include that ‘people are safeguarded from abuse, or the risk of abuse, and their human rights are respected and upheld’ (5). The CQC have now announced they will undertake unannounced inspections to a number of homes providing services for people with learning disabilities. Another important change brought about by the Health and Social Care Act 2008 (updated 2012) was recognition that people placed in care homes by local authorities were subject to the Human Rights Act 1998 in the same way as anywhere else where a public authority has a duty to people. The Human Rights Act has been influential in directing legislation and guidance in the field of mental health and learning disabilities in recent years. Clearly what was happening at Winterbourne View was a denial of people’s rights not to be subjected to torture or inhuman or degrading treatment. (6)
Mental Health Law
Can mental health law help protect people with mental health problems or learning disabilities from abuse? A number of the employees at Winterbourne View have now been arrested under the Mental Capacity Act 2005 which includes an offence of ill-treatment of a person who lacks capacity. The Mental Capacity Act is based on five principles that say acts done for or on behalf of someone who lacks capacity should be done in their best interests. The Mental Capacity Act includes an important principle that we should not assume people lack capacity, and that includes people with mental health problems or learning disabilities. The Mental Capacity Act also gives powers to the Court of Protection to manage the care and welfare of vulnerable people in the most complex cases. So if a vulnerable adult has capacity, where is their legal protection? The Mental Health Act 1983 (Winterbourne View was registered as a hospital that can detain patients under the Act) includes an offence of ill-treatment and neglect of someone with a mental disorder. Both the Mental Capacity Act and the Mental Health Act introduced independent advocacy services (Independent Mental Capacity Advocates and Independent Mental Health Advocates). These advocates have powers to provide additional safeguards for people whose ability to speak up for themselves is limited.
So if guidance on law has failed to protect residents at Winterbourne View up until now, what will the response be to these failures? Paul Burstow the Government Care Minister has said (7) that ‘the law on the care of adults was out of step with that for children and will be “strengthened” in legislation’. The Law Commission (8) has recently reported on social care law in England and Wales and has recommended that there should be ‘a specific duty on social services authorities to investigate, or cause an investigation to take place’ where abuse or neglect of vulnerable adults is suspected.
Many viewers of the Panorama programme will be bewildered as to how the workers portrayed were ever given jobs in the first place. The Safeguarding Vulnerable Groups Act 2006 was introduced in the wake of the Soham murders of two young schoolgirls. It introduced a single agency who could vet potential employees working with vulnerable groups. Clearly these safeguards can only stop someone where there is evidence of previous unsuitability for working in the care sector.
We should not miss out on the fact that all of us, whether vulnerable or not, should have the protection of the criminal law if we are assaulted or abused, and there are measures in place to protect and assist vulnerable witnesses. (Achieving Best Evidence in Criminal Proceedings Ministry of Justice March 2011)
This article has identified a number of pieces of law and guidance that have a role in the protection of people with mental health problems and learning disabilities from abuse, and that is not an exhaustive list! Yet all of this has failed to protect the residents at Winterbourne View and elsewhere. We can now expect strengthening of social and health care law. The problem with any guidance or law is there is no certainty that institutional abuse will be prevented in the future. Proper care and treatment of vulnerable adults is so dependent on the staff and organisations involved in providing care. The lesson of inquiries into abuse of children and adults alike is that good and effective supervision of staff is a crucial factor in monitoring care, becoming aware of bad practice, and ensuring values of respect and dignity for all.
- BBC1 Panorama broadcast 31.5.2011
- No Secrets Department of Health 2000
- Taking Stock Lord Justice Munby Cardiff Law School Conference 15.10.2010
- Castlebeck comments on BBC Panorama May 31 2011 at http://www.castlebeck.com/panorama.php
- CQC statement on Panorama’s investigation at http://www.cqc.org.uk
- Human Rights Act 1998 Article 5
- Independent on Sunday 5.6.2011
- Adult Social Care The Law Commission Report 326 May 2011