Numerous legal cases and rulings have built on the Human Rights Act (1998), Mental Health Act (1983) and Mental Capacity Act (2005). In this blog, we discuss some of the most important cases, and their impact on our understanding of Mental Capacity.
Bournewood (2004)
This case was seen in the European Courts of Human Rights in 2004, following a sudden detention of Mr H under the Mental Health Act in 1997. This occurred while Mr H was travelling to a day centre from his resettlement home in the community, where he had resided for 3 years. During this journey, a change in his routine and environment caused him to become distressed, being quickly admitted back into Bournewood Hospital where he had formerly resided for over 30 years. Mr and Mrs E were refused their rights to visit Mr H, or for Mr H to return home although detained in-formerly. This was challenged in the Court of Appeal, who found in the Hospital’s favour, sectioning Mr H. It is reported that in December that year Mr H was discharged, being described by Mrs A to be “in a terrible state” showing evidence of physical abuse from blackened toe nails and scabs on his face, appearing underfed and neglected.
The following year, 1998, the House of Lords overturned the Court of Appeal’s ruling, finding that Mr H’s detention had been illegal. This led Mr and Mrs E to escalate their concerns to the Court of Human Rights, which concluded in Mr H’s favour. It was found that not only was his detention unlawful, but while within the hospital, he was subject to harmful and disproportionate restraint, as well as unacceptable levels of care.
Ultimately, this case helped lead to the introduction of the Deprivation of Liberty Safeguards (DoLs) and further investigations into the care systems.
Cheshire West (2014)
This landmark case built significantly upon the Deprivation of Liberties, clarifying clearly the definition and test to be used. In this Supreme Court case of Cheshire West, it considered three people with learning difficulties in different care settings, two of whom were sisters, all of whom were under the DoLs. As Barrister Alex Ruck Keene observes, the central question brought before the courts was to determine is the concept of liberty is different for people of different abilities, whatever their status of health and cognition.
Initially the outcome for this case ruled that ongoing supervision was the normal for anyone within a long-term health-based residence, being in their best interest and so reasoned it would not be a deprivation. However, the long-term outcome of which was accepted unilaterally by those presiding as being equal for all, emphasising the need for structures in place, such as DoLs to ensure that support is the least restrictive option and remains in their best interest, caring for the individual’s quality of life.
Within the case outcomes, it laid out the ‘Acid Test’ as the guiding tool to identify if a person is being deprived of their liberties and thus whether they should fall under the protection and frameworks of the DoLs:
- Is the individual under continuous supervision and control?
- Is the individual free to leave?
Barrister Alex Ruck Keene states within his overview of the case, that to maintain a person’s rights under DoLs and the Human Rights Act, they must be kept under independent scrutiny.
Thus, this case paves the way for the Relevant Person’s Representative, which can be family member friend, or independent paid representative. They act as the individual’s advocate, upholding their voice in any challenge and questioning level of restrictions in place surrounding their Deprivation(s). Alongside this, is the Best Interest Assessor and their colleagues within the DoLs office.
Note: these positions and their responsibilities are set to change under the new Liberty Protection Safeguards (LPS). However, at the time of writing, the introduction of the LPS has been further delayed, with no set date for implementation.
Winterbourne View (2011)
A BBC Panorama investigation revealed a culture of abuse within a care home where there was no management in place and staff members were found to provoke residents, demean and bully them, then respond with disproportionate restraint and harm. This BBC Panorama came into light after a staff nurse approached them to request an investigation. It was revealed that several former staff members had reported concerns to appropriate bodies in the past, which had resulted in Care Quality Commission (CQC) inspections. However, these inspections did not uncover the issues highlighted in the reports, leading the CQC to conclude that all was well at the time.
However, following the Panorama investigation, the home was closed, a criminal investigation was initiated alongside a serious case review. This resulted in a number of staff being suspended, with 11 criminal convictions, 6 of which went to jail and a full review of all associated services.
The government’s response to this case was to formulate a large scale reduction in the number of people within specialist hospitals, while the CQC also recognised the importance of stop checks to reduce the risk of cover-ups. Among the key findings within government reports, it was highlighted that there were a disproportionate number of restraints that were unnecessary and often provoked or mismanaged. Furthermore, that inpatient treatment was often unnecessary, that the residents could and should be supported in less restrictive environments with ready access to their family and friends under the Human Rights Act. The case also highlighted how multiple professionals and external agencies failed to recognise concerns or communicate them effectively to prevent this serious case of long-term abuse to vulnerable adults within care.
It has now been over 10 years since this horrendous abuse was revealed, with many raising ongoing concerns that changes to the systems have not been enough.
Whorlton Hall (2019)
In this case, individuals with learning disabilities were bullied and abused through seclusion, segregation, restraint, refusal of medical treatment as well as both physical and emotional abuse. Similar to Winterbourne, it took a Panorama investigation in 2019 to draw this horrific situation to light, following whistleblowing by former employees. It was reported that staff members at Whorlton Hall had become immersed in a closed culture of abusive practices and a toxic culture that purposefully covered up the truth, while also actively misleading visiting agencies.
However, during the course of investigations, it was revealed that there were also intentional cover-ups by agencies such as the NAS, who are an independent watchdog, who were aware of concerns. The CQC recognised that in their previous inspection they missed the signs for concern, and thus instigated 24-hour notice spot checks in order to reduce the risk of cover-ups in the future.
As a result of this case, Whorlton Hall was closed and its residents moved on. In total, 10 staff members were arrested, 9 of whom are being pursued for criminal offenses through the courts which they have presently denied, awaiting a full trial in 2023.
Final thoughts
In each of these cases, it is important to remember the impact of on the individual lives of the residents who suffered in these situations. The abuses have also had repercussions for families and loved ones.
These cases highlight the importance of safeguards such as the Deprivation of Liberty Safeguards, the need for outside agencies to check on services, the duty of care for all visiting healthcare professionals, and the responsibility of all to uphold high standards of practice.
While each of these cases may have started with fairly minor instances of poor practice, these poor practices soon escalated and ultimately turned into unlawful practices with serious consequences for all involved.