Human rights watchdog issues legal challenge to Hancock on failed learning disability target

Equality and Human Rights Commission says government has breached rights of people with learning disabilities and autism due to failure to meet target to move them out of hospital

The UK human rights watchdog has mounted legal action against health and social care secretary Matt Hancock for failing to meet a target to reduce inpatient provision for people with learning disabilities and autism.

The Equality and Human Rights Commission’s (EHRC) action relates to the failure to meet the target, under the Transforming Care programme, to reduce inpatient provision for this group by 35% to 50% from 2015-2018, from 2,600  to 1,300-1,700.

As of December 2019, there were 2,185 people with learning disabilities or autism in inpatient provision, according to the latest figures published by NHS Digital.

The EHRC argues that by failing to meet the target, the Department of Health and Social Care had violated their rights to private and family life (Article 8) and to live free from inhuman or degrading treatment under the European Convention on Human Rights (ECHR).

The watchdog also said, that following discussions with the DHSC and NHS England, it was not satisfied a new target set out in last year’s NHS Long Term Plan, to reduce inpatient provision to half of 2015 levels by 2023-24, would be met.

Failed targets

The failure to meet the Transforming Care target followed government and sector leaders’ failure to deliver on a previous target set in 2012, following the Winterbourne View hospital scandal, in which a BBC Panorama investigation uncovered abuse by staff towards patients. That target was to eliminate the inappropriate use of hospital provision for people with learning disabilities and/or autism by June 2014.

Transforming Care has been designed to support people with learning disabilities or autism live ordinary lives out of hospital, through regional partnerships of NHS commissioners and local authorities investing in community-based accommodation and support that provided sustainable alternatives to inpatient care.

Multiple abuses

It has been a response to multiple reports of abuse by staff in inpatient settings – from Winterbourne View to last year’s exposure of mistreatment by BBC Panorama at Whorlton Hall hospital in Durham – as well as the widespread use of restraint, segregation and seclusion, which the Care Quality Commission is currently investigation on behalf of the DHSC.

Launching the action this week, EHRC chief executive Rebecca Hilsenrath said that “we cannot afford to miss more deadlines”.

“We cannot afford any more Winterbourne Views or Whorlton Halls, we cannot afford to risk further abuse being inflicted on even a single more person at the distressing and horrific levels we have seen.

“These are people who deserve our support and compassion, not abuse and brutality. Inhumane and degrading treatment in place of adequate healthcare cannot be the hallmark of our society, one scandal should have been one too many,” she said.

What happens next?

The EHRC has sent the DHSC a pre-action letter, to which it has 14 days to respond, though the watchdog has offered to suspend the process for three months if the department agrees to produce a timetabled action plan for achieving the target, including how it will overcome housing and workforce shortages.

It has also called for the immediate implementation of recommendations made on the issue by Parliament’s joint committee on human rights and an eight-point plan developed by campaign group Rightful Lives.

Rightful Lives eight-point plan

A review of every person with autism or learning disabilities in inpatient settings within 12 months with an agreed human-rights focused discharge plan.
The setting up of an independent body, led by people with learning disabilities or autism and their families and experts, which would have the power to drive the process of people moving from hospital to community.
Ring-fenced money for local authorities and the double funding of existing and new services if required.
Extra rights for families at all stages of the process, including an end to bans on visits.
Total transparency on costs and services, with the independent body issuing annual reports on this broken down by local authority.
Regional hit squads, made up families, lawyers and advisers, to assist people where there is the possibility of sectioning, to avoid this where possible.
Government to back legislation proposed by families to make community-based care the default for people with learning disabilities or autism.
An immediate end to the use of prone restraint and the adoption in NHS and private practice of the STOMP (stop the overmedication of people with learning disabilities) principles
A DHSC spokesperson said the department had received the pre-action letter from the EHRC and “will respond in due course”.

“We are committed to protecting the rights of everyone with a learning disability or autism, and are determined to continue reducing the number of people with these conditions in mental health hospitals.

“Abuse of any kind against patients in care is abhorrent and we take any allegations very seriously,” the spokesperson added.

‘Mismanaged and poorly-staffed institutions’
The British Association of Social Workers (BASW) said it agreed with the commission in that “there can never be another Winterbourne View or Whorlton Hall”.

“It is BASW’s position that people with complex needs will continue to be at risk in mismanaged and poorly staffed institutions until personalised alternatives are commissioned and provided within communities,” a spokesperson added.

Beverley Latania, co-chair of the Adult Principal Social Worker Network, said the Transforming Care programme was all about improving health and care services so that more individuals could live in the community, with the right support and close to home.

“However, it appears from recent high-profile cases that the support on offer is not good enough or inappropriate at times,” she said.

“The Adult PSW network welcomes action [that] ensures the rights of disabled individuals are upheld and that challenge is given to statutory services to improve how we deliver care, support, services to those in need, ensuring individuals wishes are taken into account at all times and that the right support is available at the right time with no delay.”

Human rights watchdog issues legal challenge to Hancock on failed learning disability target