I think there is a very serious question, that has not as yet been publicly addressed by the CQC, as to whether the inspection regime regarding people who are deprived of their liberty under the Mental Capacity Act complies with OPCAT. Put bluntly: there is a serious question whether the inspection regime for these detainees would be recognised as sufficient in international law as preventing inhumane or degrading treatment. Any failure to comply with OPCAT would cast serious doubts over the CQC’s, and indeed the UK as a whole, compliance with their positive obligations under Article 3 of the European Convention on Human Rights.
In a report published this month by the Ministry of Justice, that is probably likely to pass under the radar of most people concerned with issues of community care, a very ominous warning was sounded:
In an organisation of CQC’s size and broad scope, there will always be a tension between the different functions it performs. In 2010–11, an internal restructuring of CQC threatens some roles dedicated to the monitoring of the MHA. A review of visits to those detained under mental health law is also underway, although this is designed to enhance effectiveness. As CQC’s overall budget comes under pressure it will be a challenge to maintain its focus on its OPCAT-related work. (p33)
Anyone concerned with the rights of people who are deprived of their liberty in psychiatric hospitals, ordinary hospitals, care homes or any other sites of care should sit up and take notice of this. In fact, you should take out your pens and start writing and asking the CQC exactly what this comment is all about. Essentially, the author of this section of the Ministry of Justice report is suggesting that vital functions carried out by the CQC are under threat due to austerity cuts and restructuring. What CQC function could possibly be more important than ensuring the most vulnerable people cared for in hospitals and social care are not subjected to torture, or inhumane or degrading treatment?
What is this report all about?
In 2002 a United Nations treaty came into force called the ‘Optional Protocol to the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment’, or OPCAT for short. The United Kingdom ratified OPCAT in 2003. The treaty requires all signatories to establish ‘National Preventive Mechanisms’ to carry out regular inspections of any places where people are deprived of their liberty to ensure they are not being abused. Most public and academic discussions about OPCAT concern visits to prisons, police cells, immigration detention centres etc. However, OPCAT also covers people who are deprived of their liberty as a result of illness or disability. OPCAT reflects, at an international level, an understanding that people who are deprived of their liberty are extremely vulnerable, and are at excessive risk of ongoing and unnoticed abuse of their most basic human rights. Think, for instance, of the torture and abuse of prisoners in Abu Ghraib prison in Iraq. Think, more close to home, of the abuse suffered by adults with learning disabilities in supported living services in Cornwall, uncovered by the Commission for Social Care Inspection in 2005. I am sure you can think of other cases in the news, or perhaps in your own experience, unprompted.
CQC inspections in hospitals and care homes
Each OPCAT signatory nation can choose how they establish their own preventive mechanism. In the UK, there were already many systems in place for inspecting most sites of detention, from Her Majesty’s Prison Inspectorate to the Independent Custody Visiting Association. In total, 18 organisations in the UK make up our National Preventive Mechanism to ensure detainees of all kinds are protected from torture and abuse (see list of them here). One of these is the Care Quality Commission (CQC).
Before the CQC was formed in 2008, the Mental Health Act Commission (MHAC) was charged with making unannounced inspections of psychiatric hospitals to ensure the rights of patients detained under the Mental Health Act were upheld, and they were being well treated. The MHAC was the last in a long line of commissions dating back to the Physician Commission, established under the Madhouses Act 1774 to visit madhouses and ensure patients were not being mistreated, and were not inappropriately detained. This essential function of visitation to ensure detainees in sites of care were not being mistreated has been carried out by a range of commissions over the centuries and its functions are now absorbed by the CQC.
The Mental Health Act Commission was particularly noted for producing excellent biennial reports into the state of care in Britain’s psychiatric detention facilities. You can still read some of them online here (2003), here (2005), here (2008). The reports were extremely revealing about the darker side of psychiatric detention, and most likely made uncomfortable reading for many in Whitehall and government. They have brought to light shocking standards of care. The 2008 report, containing a list of disturbing incidents (p19), makes gruesome reading: patients who are secluded 90% of the time; patients in overcrowded wards sleeping on the floors of doctors offices; vulnerable women housed on wards where they are sexually abused; a dying man nursed in a dining room whilst other patients eat in there.
As was increasingly recognised following the Bournewood judgment, people are not only deprived of their liberty in psychiatric hospitals. The deprivation of liberty safeguards were established to protect the rights of people who are detained in hospitals and care facilities without the protections of the Mental Health Act. Reading the Ministry of Justice report this month, it was clear that as far as monitoring and rights protection goes, the deprivation of liberty safeguards are very much the poor relation of the Mental Health Act. The CQC merely noted that their use was ‘limited’; there was no detailed discussion of the living conditions and rights of those detained under the safeguards. There seems to me no reason to believe that standards of care are higher in these detention sites; indeed, the steady trickle of reports of abuse in care homes and supported living in the media might lead us to believe they are worse. As has been raised in the past many times by the MHAC themselves, people who are deprived of their liberty in any setting are vulnerable; where these people are disabled or suffer from mental illness, that vulnerability is exacerbated. The MHAC in fact once cautioned against any sites that detain people with learning disabilities being relatively free of external visitation (here, 3.33). Since then, levels of visitation in care homes have in fact dropped, and will drop further still (read this article for a discussion of this issue). Except in exceptional circumstances, supported living services which fall under ‘domiciliary care’ provision are not subject to site visits at all. The CQC is increasingly switching over to a ‘light touch’ regulation model which relies upon self-assessment – how many people could honestly believe that incidents like those listed above would be reported this way?
Over the years the Mental Health Act Commissioners have championed the rights of all detainees, and tried to draw attention to the particular issues faced by detained women, children, black and minority ethnic groups, as well as the dearth of protection of de facto detainees like HL in the Bournewood judgment. When the Commission was wound down to become absorbed into the CQC they wrote that they were ‘reassured’ that their functions were not to be diluted, that their ‘warnings’ about the risks that would follow the loss of such functions were heeded (final report, 2009, p12). The comments in the Ministry of Justice report this month suggest that they breathed a sigh of relief too soon. Is the passage quoted above the last gasp of the Mental Health Act Commission? A signal that we may be reaching the end of the road in a long history of visitation of sites of detention to protect the most basic rights of the most vulnerable members of our society?
I can find no coverage of this issue elsewhere. I can see nothing on the CQC’s website that reflects a possible retraction of their visiting scheme. But this report signals clear rumblings from within the CQC that some of its most vital functions may fall under the axe of austerity. For anyone who sees value in preventing inhumane and degrading treatment of vulnerable people deprived of their liberty in our hospitals and care homes, I suggest you pick up your pens, and ask them what this is all about.