Winterbourne View – Where were the Deprivation of Liberty Safeguards?

One of the many things that have been concerning me since the Panorama programme about abuse within the Winterbourne View hospital for adults with learning disabilities was aired was the way that the safeguards implemented under the Mental Capacity Act were, or weren’t used.

Bearing in mind that a number of the patients/residents would have been formally detained under the Mental Health Act, that still leaves some that surely should/would/might have been subject to the Deprivation of Liberty Safeguards.

Law books 2

Eric E Johnson @ Flickr

On The Small Places, Lucy, in a fantastic post that breaks down a lot of the issues, writes on this matter stating

Undoubtedly everyone on that ward was deprived of their liberty, but were they detained under the provisions of the Mental Health Act, the Mental Capacity Act Deprivation of Liberty Safeguards, or just unlawfully detained?  It’s not a question that’s taken up, but from a legal perspective it’s very important.  If they were unlawfully detained, police should look at charges of false imprisonment on top of other charges relating to assaults and neglect.  If they were detained under the DoLS, who wrote the assessment that detention was in their best interests?  Did they place conditions upon the detention, and ensure they were upheld?  Was this assessment lawful, or should families be looking at issuing proceedings for unlawful detention against those who commissioned the care?

We don’t have answers to this question and I’m going to wander into the realms of supposition and guesswork with little apology, after all, I am no journalist.

I am going to presume that there was a poor use of the Deprivation of Liberty Safeguards – and I make this assumption based on the following grounds.

Firstly, there is a very poor understanding and implementation of Deprivation of Liberty Safeguards (DoLs).  I am a  practising Best Interests Assessor and a a social worker in a team that is primarily responsible for older adult. I go to a lot of residential and nursing homes. I go to a lot of hospitals. I observe and sometimes I assess. I have seen poor implementation and understanding in my own experience and can’t even begin to count the errors in the knowledge of the basic  tenets of the DoLs procedure that managing authorities (residential homes, nursing homes and hospitals) have. It’s a job to explain to colleagues as well.

This isn’t necessarily through lack of training, although sometimes it is merely about the speed of turnover – the staff that were trained are no longer in situ,  but it is also about a way that the safeguards are perceived. It’s also because all the training was done prior to the safeguards ‘going live’ to ensure the procedures were in place  but there have been changes through case law and through practice so professionals are lagging behind on the legal procedural knowledge and with training budgets cut, it can led to dangerous and unlawful practice.

Managing authorities are generally  (not exclusively) reluctant to trigger them because somehow they see it as bringing more attention to the ways the organisation operates or they see it as some kind of criticism for the way that they manage care. It may be or it may not be. If there is a deprivation of liberty there needs to be a legal framework in which it operates.

I’d venture to say that everyone at every level in every residential care facility needs to have an understanding and knowledge of the law and the way it relates to people who lack capacity to make certain decisions. I wonder what understanding those who assaulted patients in Winterbourne had of the law.

Any number of times  I have been told that a managing authority will request an authorisation after a review or when the social worker tells them to which, in itself, shows a misunderstanding of the legislation which requires immediate action and requests for assessments as soon as (or actually prior to) a deprivation of liberty takes place.

With the issue of the Deprivation of Liberty Safeguards and the Mental Capacity Act more generally come the role of advocates. Independent Mental Capacity Advocates have a statutory role within the Mental Capacity Act just as Independent Mental Health Advocates have a role under the Mental Health Act. Were there any advocates involved with the patients at Winterbourne? If so were they given the access which is allowed legally?

I genuinely believe that alongside criticism of the CQC which I will probably save for another post, it’s worth looking at the role of advocates and the potential that they could have to prevent abuse and to protect people who are vulnerable to abuse. I wonder if there should be a more robust system of advocacy in place (hint – yes, I think there should) to monitor placements from the basis of each resident. Cost? Why, yes, it would. And therein lies the rub but in any discussion of improvement, I think the role of an independent advocate looms large.

So why didn’t the Deprivation of Liberty Safeguards, safeguard the patients at Winterbourne View?

My own supposition is because they were completely ignored and not used.

What might a Best Interests Assessor have discovered that a CQC inspector couldn’t? Well, each resident affected would have had to be interviewed, as would staff members and family members. Deceptive staff members and frightened residents would still have been respectively deceptive and frightened but additional questioning and listening could have potentially led to a breakthrough. There would have been an examination of care plans and methods (although as we discussed in the office last week – any home can present a beautifully person centred care plan on paper – it’s a matter of implementation) and there would have potentially been a route in for more ‘relevant persons’ representatives’ to visit and ensure the well-being of the person being ‘deprived of their liberty’.

In a sense, I do wonder how many other ‘Winterbourne Views’ there are out there. I think while the culture of the organisations and the role of power needs to be examined, there also has to be an understanding of the law as it stands and whether safeguards were used  – if they were, why didn’t they safeguard? and if they weren’t (which is my suspicion) why weren’t they? Surely that is for the management (and the government agencies which monitor the legislation) to answer.

8 thoughts on “Winterbourne View – Where were the Deprivation of Liberty Safeguards?

  1. Unfortunatley I’m sure you are right. Many people working in care homes and hospitals have no idea about either the MCA or DoLS. What’s worse, an awful lot simply don’t want to know. They see the safeguards as another stick to beat them with when actually it’s a process that helps them not to be ‘beaten’ by laws that existed already.

    Like you I also suspect that there was no legal basis for detention in at least some cases at Winterbourne View. False imprisonment is a serious offence and I agree that this should be investigated as well.

    Panorama caters to the wider public who may well be confused if this was addressed as well in such a short programme but that doesn’t that professionals should ignore this very large ‘elephant in the room’.



  2. Another benefit to the DOLS process is that I find that sometimes care home staff don’t really know who you are as a BIA or what you are there for. I find this has been useful on occasion because I have just been there, quietly reading files in the corner and watching what goes on. It can get very interesting when staff forget you are there.

  3. Is this yet another example of existing systems and practices – this time the whole care home nursing home hospital system, which is hundreds of years old with roots in the work house, the asylum and the monastery not actually adapting to very significant changes in the law?

    The 1948 NAA allegedly abolished the Poor Law. Human Rights law allegedly enshrines rights to privacy, family life and against unlawful imprisonment.

    Maybe someone moving to the extremely insecure licence scenario of a care home and similar – and with an underlying threat as with Southern Cross that they have no rights of tenancy – is actually experiencing an implicit and de facto imprisonment because of their loss of rights and freedoms.

    It is time that we asked are our existing ways of doing things fit for purpose? CQC does not actually ask is this specific solution the correct solution, it only tests the quality of that solution – and not that well!

    Maybe the law has abolished institutionalised solutions, except with clear processes like in mental health. Maybe best practice in one area has not been generalised.

  4. I’m so glad you wrote this post – I’ve been thinking about whether a BIA or advocate might have picked up on things sooner. I think it would have created more openings, certainly.

    I’ve been re-thinking my line on false imprisonment; I’m not sure it would be a criminal thing (at least, not for the care staff – only the management, and would depend on lots of other things like their intent), but it would likely be useful in a civil case.

    I think Stuart’s hit the nail on the head about people seeing DoLS as a stick to ‘beat them with’. Although unfortunately services that don’t seek DoLS authorisation are probably pretty unlikely to get sued for it as without the safeguards it’s hard to get the case into court. Also, any sensible service would seek authorisation belatedly, once the issue was raised, rather than allow it to get to court. I don’t think there’s much real pressure on care providers or hospitals who don’t bother to comply, and there’s lots of reasons why they might not want to do so. Unless, of course, there’s a Panorama team on the case…

  5. Hello CB

    Hope you can stand some DoLS / MHA nerdery. (Made a mess of trying to post this earlier).

    First, Winterbourne View isn’t just any old care home, it is classified as a hospital that can accept patients detained under the Mental Health Act. The edge between DoLS and the MHA is ragged and the legislators failed to specify clearly where the interface lies but case law has clarified that people, including people with learning disabilities and autistic spectrum disorders, who are being compulsorily treated for mental disorders should generally be subject to the Mental Health Act. The inspection body tasked with ensuring MHA compliance is, unfortunately, the Care Quality Commission. Giving this role to the CQC seemed to close an obvious loophole, that informal patients in psychiatric hospitals weren’t subject to visitations by the predecessor Mental Health Act Commission but if the body these responsibilities have been given to is over-stretched and feeble, this clearly isn’t the case.

    I’ve read the blog The Small Places and while I really admire the author’s activist sentiments, the blog is not a reliable guide to the law as it stands and the author can blur the distinction between roles in the DoLS process and can stray into righteous finger wagging at hypothetical groups of professionals. Easy to do if you don’t have to engage with the issues day to day. The blogger generally accepts that individual practitioners can act with integrity but can get a bit aerated when considering ‘they’ and ‘them’. I genuinely wish we did have the comprehensive processes for supporting decision making for vulnerable people that the author advocates but at the moment we don’t, we have a process which only applies in limited circumstances and which has limited powers. This doesn’t mean DoLS is useless, I hope and think it’s the thin end of the wedge to which further pressure must be applied to widen the rights of service users. Blaming assessor staff for the government having produced a regime deliberately limited in scope doesn’t really help and can sound like more just more ranting at social workers. My view is: dig where you stand, do what you can and don’t throw the whole thing over because it isn’t perfect.

    To consider some of the rhetorical questions and the answers provided by the Code of Practice:

    1. If [patients] were detained under the DoLS, who wrote the assessment that detention was in their best interests?

    Obviously, producing the assessment would have been the role of the Best Interest Assessor, generally a social worker or a nurse, always appointed to this role by the so called ‘Supervisory Body’. I’d expect that for a private hospital, this was the PCT for Bristol. I’d sort of assume that any BIA recommending that the placement was in a person’s best interest would have done so in ignorance of the abuse that was taking place rather than that any assessment they produced should be seen as an endorsement of the abuse. Some DoLS Authorisations specify the expected form that the Deprivation of Liberty will take (for instance, staff refusing the person’s requests to leave, close supervision etc.) in order to ensure that the Authorisation is not taken as a blank cheque for oppressive practice by the home or hospital. For an assessment to take place, someone needs to request one. This is generally the care home or hospital responsible for looking after the person. Do you think Winterbourne View was going to do anything to invite further scrutiny? Neither do I. Third parties can also request assessments – families, social workers, lay visitors and advocates. As a psychiatric hospital, there should have been a presence from a professional advocacy organisation. Large care home groups sometimes even employ lay visitors. The documentary also showed how the abusers were managing to conceal their abuse from these other groups of people and even persuaded parents their child’s reports of abuse weren’t accurate.

    2. Did they place conditions upon the detention, and ensure they were upheld?

    Best Interest Assessors may but don’t have to suggest conditions when recommending DoLS Authorisations, the Supervisory Body signatory decides whether they will be adopted. Neither of these figures is formally responsible for ensuring that conditions which much be observed for the Standard Authorisation to be lawful are observed and indeed the assessor’s role ends after they’ve completed their assessment. The formal responsibility for inspecting DoLS compliance rests in England with the CQC (again) and in Wales, with Health Inspection Wales and the Care Standards Inspectorate. This is real a weakness with the DoLS regime in view of how thinly spread staff from these organisations are. I must say that CSSIW staff are beginning to comment on DoLS issues but can be reticent because of their lack of familiarity with what is I suppose a new set of procedures. In practice DoLS co-ordinators hope that social workers will remain in touch with clients and note any serious departures from conditions that may have been set or that families and supporters will speak up if they’re concerned. However, I think any conditions set by BIAs and (which tend to try and mitigate necessary restrictions) and attempts to measure compliance with them would have been irrelevant to the issue of such gross and malicious abuse and the largely successful attempts by the abusers and their feeble and complicit supervisers to conceal what was going on.

    People in care home and hospitals are subject to many regimes of regulation and inspection: contract monitoring, care management, Protection of Vulnerable Adult procedures, as well as DoLS and the Mental Health Act. Any of these regimes could in theory have picked up these concerns. In long and short, there has been a comprehensive failure of all of these review and inspection regimes. Picking on one or other of them and suggesting that they have failed more than the others does not help. I suppose we could call this approach to blame management, ‘the Shoesmith shuffle’.

    What would help prevent situations like this occurring would be increased footfall from outsiders in care homes and hospitals and more participation in life outside by their residents, the more open an institution is, the less it can behave like a secretive ‘total institution’ and the fewer opportunities bullies have to refine their arts unobserved. These are simple suggestions but they might actually require large changes in our culture and the structure of services to accomplish.

  6. I think one of the questions that needs to be asked is; how many advocates are there at the moment? When the Mental Capacity bill was going through Parliament a huge fight broke out over the issue of funding for advocates. I can’t remember the exact amount, but it was pretty measley and Mencap and others complained vociferously about it. There’s no point having laws if there’s noone to chase them up. I’ll look it up.

  7. Thanks all for your great contributions about this. It will linger on in my mind for a while and hopefully some more answers will come out in time.

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