Where were the watchdogs? Where were the safeguards? These questions have been bothering me ever since I read about Lisa in a report by the CQC and the death of Stephanie Bincliffe, which was reported over the weekend. Both women had learning disabilities, both appear to have been detained under the Mental Health Act 1983 (MHA) in assessment and treatment units, and both appear to have been subjected to seclusion for several years. This is Lisa’s story as it appears in the CQC report:
During the two-day inspection of the assessment and treatment unit, no one set eyes on Lisa – the [Challenging Behaviour Foundation] Expert by Experience was concerned because she was told that Lisa lived in a locked area at the end of a male ward. She did not come out and no one went in. The CBF raised concerns through the usual channels and was “reassured” that Lisa was “well-known”, had an advocate, that there were regular review meetings, and that she was very complex and challenging. CBF insisted on pursuing her case and discovered that she was kept in a locked area, slept on a beanbag, never went out and staff interacted with her through a small letterbox style “hatch”. For example, her food was passed to her through this hatch, and her hair was brushed through this hatch. She lived like this for nine years detained under the Mental Health Act. There was no therapeutic input – it was containment, and it cost an average of £1,800 per day, over £12,600 per week. No one raised concerns about this arrangement until CBF did. Lisa has now moved to a new service and is doing well, but there is considerable work to do to undo the damage caused by living in solitary confinement for so long.’
As Sara Ryan comments, Stephanie Bincliffe is said to have been secluded for a period of seven years. During this time she put on ten stone in weight, and she died of sleep apnoea. An inquest into her death is underway.
I find these cases so harrowing and appalling that I have been struggling to know what to write about it here. What keeps going through my mind is how could this happen, how could the professionals working with these women have thought it was an appropriate way to treat a fellow human being? What beliefs must they have held about these women, about people with learning disabilities, to think that this was remotely acceptable?
In conversation with lawyers about these cases, inevitably, we pick apart the safeguards that should have been available to them, and wonder whether we need more law, more safeguards, to prevent this type of thing. I would not want to conclude that there are no legal changes that we should be looking at, but I just keep thinking: these women were detained under the MHA, the ‘gold standard’ of procedural safeguards, and yet this still happened. They would have had multiple professional assessments – including psychiatric assessments and assessments by Approved Mental Health Professionals. Lisa is said to have had an advocate. There should, if the MHA Code of Practice guidance on seclusion and ‘longer term segregation’ were followed, have been regular multi-disciplinary meetings (although, we don’t know if this actually happened). They would have had reviews by the hospital managers. Because these women were detained for so long under the MHA, they would almost certainly have had tribunals, because they would have been automatically referred to them (even if they did not exercise rights of ‘appeal’). This means that they would almost certainly have had solicitors, who presumably must have known that they were being secluded in these conditions. This means that tribunal members – including a medical member, a legal member and a lay member – must have considered their detention and may have had at least some awareness of the conditions of their detention. It is true that the Tribunal do not have powers to consider the conditions of detention or make requirements therein (unlike, interestingly, the powers of BIA’s and the Court of Protection under the Mental Capacity Act 2005 deprivation of liberty safeguards). But the point is, a very large number of professionals – medical, social work, and legal – must have known about this, and either endorsed it or else failed to take sufficient action to bring this treatment to an end.
What about the monitoring bodies? Until 2009 the Mental Health Act Commission (MHAC) carried out independent monitoring and visitation of patients detained under the MHA to ensure their rights are being protected. These functions are now carried out by the Care Quality Commission (CQC). As well as having a long history in England and Wales, this is part of our international treaty obligations under the United Nations Optional Protocol on the Convention Against Torture (OPCAT). The very point of such visitation is to ensure that those who are detained are not subject to torture or inhuman and degrading treatment. If locking a person in a room for many years, leaving them with only a beanbag to sleep on, and feeding them through a hatch does not amount to ‘inhuman and degrading treatment’, if it does not arouse ‘feelings of fear, anguish and inferiority capable of humiliating and debasing them and possibly breaking their physical or moral resistance’ (Ireland v UK, 1978), then I do not know what does. And yet, the monitoring bodies appear not to have brought to an end the treatment of Stephanie Bincliffe, and only brought to an end Lisa’s treatment after several years. There are so many unanswered questions here: did they know about this – and if not, how was it missed? Did they endorse it at any point? Did they raise any concerns?
These women had ‘safeguards’ coming out of their ears, and none of them worked, or they worked far too late. ‘Legalism’ (procedural safeguards) is based on the idea that if we inject enough additional layers of independent scrutiny, of review and appeals, then those responsible for these safeguards will restrain any abuses of power. The idea is that a fresh set of eyes will help to ensure that any problems are picked up on and addressed. But here, this did not happen until an expert by experience discovered Lisa, and it appears that nobody picked up on what was happening to Stephanie Bincliffe until it was too late. All those eyes on those women, all those watchdogs, and none of them barked.
When we encounter horrendous abuses of this nature, we typically have two prescriptions: we need more money, or we need more law. What is so troubling about these cases is that there was certainly no want of money – Lisa’s detention is said to have cost an astronomical £12,600 a week. As Sara Ryan points out, you could rent a luxury suite at the Ritz for that much. And as I’ve already pointed out, there were numerous legal safeguards that were theoretically in place here. The idea that creating additional layers of scrutiny will fix this seems to miss the essential point here, which is that numerous professionals (including legal professionals and advocates) must have been complit with this. This is not a case of a few rotten apples being missed because they hid their abusive actions from view. This was happening in plain sight. It is hard to avoid agreeing with Norman Lamb that these cases are indicative of ‘a deeply embedded and rotten culture where people with learning disabilities are treated as second class citizens’. How do you fix a rotten culture?