Tue, 01 Sep 2015
“Our starting point is that it is not acceptable in the twenty-first century for thousands of people to be living in hospitals when with the right support they could be living in the community”
(extract from the Executive Summary of “Winterbourne View – Time for Change. Transforming the Commissioning of services for people with learning disabilities and/or autism” commissioned by NHS England)
No5 Chambers has been at the forefront of protecting the rights of mental health patients before the courts and before tribunals. Its public law team has specialists practising in this field as well as defending the rights of prisoners. Both groups are particularly vulnerable to the actions and oversight of the Executive, and in a time of austerity in the finances of the State, it is important that all proper challenges are available to detainees to ensure their individual life and liberty receives the proper respect and provision that any fair and compassionate State must ensure.
The below article by Philip Rule, barrister at No5 Chambers, aims to offer a new potential for those with learning disability and/or autism, their families, and the many charities and NGOs that fight for the rights of these groups, to ensure things are improved for such individuals.
The article suggests a cause of action by judicial review that Philip Rule would wish to present on behalf of such affected individuals. Philip has a proven track record of success in challenges on behalf of prisoners challenging an inability to progress and believes he is able to use the same principles and approach to improve the situation for learning disabled and mental health detainees also. If the issues affects you or those you represent, please contact his clerk Mark Byrne at No5 Chambers by email MarkB@no5.com or telephone at 0207 420 7500 to discuss how we might be able to assist you.
The duty to make proper provision of places needed to facilitate the release or progression of mental health detainees
There are of course statutory duties imposed upon local authorities and health trusts to provide care for those who suffer mental health vulnerabilities. Challenges by judicial review may be made to the rationality of provision to an individual by the application of the ‘Wednesbury unreasonable’ test and challenging failures to comply with applicable policy or statutory provisions. However this traditional approach to the law appears to have been incapable, thus far, of ensuring that the State fully meets its duty to mentally vulnerable individuals who are detained for the safety of others, or for their own safety.
I believe the law must now recognise a stronger obligation and duty that must be performed by the Secretary of State. The law must now provide the sword desperately needed by those with learning disabilities or autism, and their families, who have had too little power or support thus far to obtain the changes to provision that are desperately needed.
In the wake of the notorious scandal exposed by the media at Winterbourne View several reports were commissioned investigating the care of learning disabled citizens. The Department of Health itself commissioned Transforming Care: a national response to Winterbourne View hospital (2012), producing a final report in December and an interim one in June of 2012. The tangible result of longstanding recognition of the need for fundamental changes is seen in the Concordat that was agreed by the Government and other organisations pledging action: Department of Health, Winterbourne View Review: Concordat: a programme of action (2012). The Concordat promised: “health and care commissioners will review all current hospital placements and support everyone inappropriately placed in hospital to move to community-based support as quickly as possible and no later than 1 June 2014”. That deadline has however been missed and the pledge remains unmet.
The recent report “Winterbourne View – Time for Change. Transforming the Commissioning of services for people with learning disabilities and/or autism” commissioned by NHS England, published at the end of 2014, provides a worrying review. The foreword summarises the report’s findings by reviewing matters in light of “the Government pledge to move all people with learning disabilities and/or autism inappropriately placed in such institutions into community care by June this year. Not only has there been a failure to achieve that movement, there are still more people being admitted to such institutions than are being discharged.”
The report notes “The Concordat was clear that currently too many people with learning disabilities and/or autism are admitted to inpatient settings when admission could have been avoided, too many stay too long, and so too many are in inpatient settings at any one time” [7.1]. Nonetheless NHS England’s figures show that between September 2013 and September 2014, 923 people were transferred out of inpatient care, whilst in the same period 1,306 people were admitted (NHS England, Quarterly ‘Assuring Transformation’ data, published at www.england.nhs.uk/ourwork/qual-clin-lead/wint-view-impr-prog/). The situation is worsening not improving.
The scale of the problem to be redressed is identified in the executive summary: “for many years too many people with learning disabilities and/or autism have been, and continue to be, in inappropriate inpatient settings – often a very long distance away from family and home”.
The way to achieve real improvement for the lives of those affected is clearly identified: “Only by a big expansion of such community provision can we achieve a move from institution to community. So we need a mandatory national commissioning framework that delivers that expansion, pooled budgets, and a focus on the individual’s needs not the system boundaries”. The problem is the system is not properly constituted and managed to ensure there is the progression to community living that individuals are entitled to.
By a very long way, this report is not the first time anyone has considered these issues, as the report itself identifies. Decades have passed since the problem was identified and described by Professor Mansell’s report in 1993. The Concordat set out the necessary key steps very clearly and has been followed by a range of further analysis and guidance. Notwithstanding knowledge of the problem, acceptance of the need to remedy it, and knowledge of the way it ought to be tackled, it persists because it is made too hard for stakeholders across the system to make change happen, and too easy to continue with the status quo. The report suggests also that thus far “we do not give enough power or support to the people most eager and best placed to make things change – starting with people with learning disabilities and/or autism themselves and their families”. That may be due to change, I would argue.
The steering committee responsible for the latest report aims to act as “a driver for change” and proposes to meet to review progress. However with budgetary constraints on departments of Government, if the prisoners’ cases are anything to be learnt from, it will take the pressure of successful court cases to really compel the necessary reforms and ensure adequate funding is available to meet the need. Such claims are not about discretionary funding decisions; they are about the need to have a system that is properly funded to be able to discharge its functions for the benefit of all those who rely on that system. The system itself must function properly and fairly in a society that takes seriously its responsibility to those with mental health disabilities.
I have been involved in four important cases that have established and obtained the right to r to progress reasonably through the system and to obtain release back to the community for prisoners detained indefinitely for preventative reasons. In principle there is no reason why such duties both in domestic public law and in the application of Article 5 of the European Convention on Human Rights 1950 should not also be owed to, and enforceable by, those who are preventatively detained for mental health reasons.
Article written by Philip Rule.
Directly-affected individuals, their families, the medical staff seeking to improve quality of life and seeking to enable progression, and the charities and groups that represent the interests of the learning disabled, ought not to feel disempowered. Families are all-too often familiar with the need to fight for the right services to be provided to the individual within the failing system. Still too many people are being sent to hospitals hundreds of miles away from home, and they are kept there for too long because there is nowhere to move them. Of course this is not only a problem for family life, frequently this location and environment of the institution will cause the individual to regress. The real problem and impediment to progress, however, is not individual allocation of resources decisions, it is the under-resourcing and mismanagement of the system to ensure sufficient provision is available for the proper care of the learning disabled and those with autism in need of that care.
Cases in which I have acted on behalf of affected prisoners have already successfully established in the course of 2013 and 2014:
1. The State is under an ancillary obligation and duty to progress prisoners detained for risk prevention purposes towards release by provision of appropriate facilities as a duty implicit in the scheme of Article 5 ECHR. That is an individual right in favour of each individual, and is not limited to public law error (10 December 2014, Supreme Court);
2. There is a public law duty to make sufficient provision of the system and resources to enable prisoners to access the rehabilitation treatment courses that are identified as necessary for completion in order to achieve a reduction in risk that is required to realistically enable a return to liberty by direction of the quasi-judicial tribunal (Parole Board) (4 December 2013, Divisional Court; and 4 November 2014, Administrative Court)
3. There is a public law duty to make sufficient provision of the system and resources to enable prisoners to have a reasonable chance to move to open conditions once they have reduced risk to the public and need the opportunity to demonstrate they will be suitable for ultimate release through a period tested in open conditions (Jarvis, Administrative Court, 11 April 2013)
In a fifth case I await judgment to a challenge to the general under-provision of places in Approved Premises (hostels) that is causing hold-ups to directions for release by the Parole Board. The above successes ought to be applicable also to the position of those detained by the State for their own or others’ protection in light of mental health issues, where with proper care provision in the community detention or placement in an institution would simply not be necessary.
The relief that a person might obtain from the courts if a breach of the ancillary duty or the public law duty is found is not limited to damages, but extends to (1) mandatory orders to compel action to be taken; and/or (2) supervision by the court to await proof from the State that it has remedied the problem and ended the breach.
The Supreme Court provides guidance that the affected person will be able “to complain and to seek mandatory orders if and when any such breach of duty occurs”. That is an important encouragement and step forward in the standard of protection available through judicial review in the circumstances of non-progression.
The Administrative Court is presently supervising the Secretary of State for Justice’s response to a finding of a breach of the domestic law duty in R (Fletcher, Young and another) v SSJ  EWHC 3586 (Admin);  All ER (D) 10 (Nov). I represent two of the claimants in that case, which was the test case for the breach of public law duty in lack of a particular sex-offender course provision. A declaration was granted for breach of the general provision public law duty. The question of mandatory relief was adjourned for the Secretary of State to show steps being taken to remedy the issue. At a remedies hearing on 12 December 2014 ( EWHC 4338 (Admin)) the Secretary of State instructed Queen’s Counsel to seek to persuade the Court to bring an end to the proceedings and accept the evidence filed indicating the steps taken to comply with the duty to make sufficient provision of the necessary resources. However the Court was persuaded to remain seized of case to ensure the Secretary of State meets his public law duty, and the Court will determine the question of further relief in July 2015. In essence the Administrative Court is performing a supervisory role to ensure that effective relief is available to bring to an end the breach of duty.
In light of the broken pledge of the Concordat, and given the continuing failure of the system in place for the care of the learning disabled, it is high-time the State was held to account for its breach of the obligations it owes to those detained in institutions. That improvement will be welcomed not only by the individuals inappropriately placed and their families, but also by the conscientious medical staff who feel let down by the system and feel they must fight against it rather than be equipped by it to make the provision that they wish to make for the individuals for whom they care. I hope I may make a valuable contribution to improvement of the situation in the way I have achieved for others who were similarly let down by the system the State controls that governs whether the person will remain detained or will be allowed their freedom, their life and their identity.
Article written by No5 Barrister Philip Rule.