A cross-party group of politicians has condemned the ‘horrific reality’ of young people with autism or learning disabilities being inappropriately detained in mental health hospitals. In a new report, Parliament’s joint committee on human rights endorsed a 2018 proposal to tighten criteria for detention to circumstances where treatment was ‘the last and only resort’.
The enquiry was launched at the start of the year to evaluate the success of the Government’s Transforming Care programme which aimed to significantly reduce the numbers of those detained inappropriately.
‘This inquiry has shown with stark clarity the urgent change that is needed and we’ve set out simple proposals for exactly that. They must now be driven forward, urgently,’ commented Harriet Harman QC, chair of the Committee.
‘It has been left to the media and desperate, anguished parents to expose the brutal reality of our system of detention of people with learning disabilities or autism. We must not look away. The horrific reality is of whole lives needlessly blighted, and families in despair.’
The MPs and peers reported that they had ‘no confidence’ that the target to reduce the numbers of people set out in the NHS Long Term plan would be met and that detention of young autistic people was often inappropriate causing ‘suffering and… long term damage’. They also found that the right housing, social care and health services needed to prevent people being detained inappropriately were ‘simply not being commissioned’. ‘Too often families of young people, who may be desperately trying advocate on behalf of their children are considered to be the problem, when they can and should to be the solution,’ it said.
The joint committee also called for the establishment of a Number 10 unit to urgently drive reform to minimise the number of those with learning disabilities and/or autism who are detained and to safeguard their human rights. As a minimum, the report said the government should introduce legal duties on local authorities and clinical commissioning groups both to ensure the availability of sufficient community-based services and to pool budgets for care services.
The right to liberty guaranteed under article 5 of the European Convention provides procedural safeguards for persons deprived of their liberty on the ground of ‘unsound mind’ including the provision of objective medical evidence to justify compulsory confinement. Domestic law provides for the detention of individuals on grounds of mental ill-health or mental incapacity in three main ways:
The Mental Health Act 1983
First, there is the Mental Health Act 1983 (MHA), under which the majority of detentions for inpatient treatment for mental disorder are authorised. Section 2 states that individuals may be admitted and detained if suffering a mental disorder that warrants detention for assessment, and if they ‘ought to be’ detained for their own health/safety or the protection of others, for a period not exceeding 28 days.
Section 3 states that individuals may be admitted and detained if detention is necessary for the purpose of assessment for treatment. This would only apply to individuals with a learning disability if associated with ‘abnormally aggressive or seriously irresponsible conduct’. By contrast, there is no such additional requirement for those with autism. Indeed, autism is currently defined as a ‘mental disorder’ under the MHA, which means that autistic people can be sectioned without having a treatable mental health condition.
Section 3 conditions the permissibility of detention on the availability of ‘appropriate medical treatment’. The Joint Committee expressed concern, however, that a ‘very broad approach’ has been taken to this requirement, to that extent that the most basic provision of care satisfies this test. Citing evidence from organisations such as Rightful Lives and the Centre for Welfare Reform, the report said: mental health hospitals were ‘not providing young people with learning disabilities and/or autism with treatment which is individualised and therapeutic. On the contrary, the evidence points in a number of cases to a worsening of conditions and further traumatisation of the detained young people.’
The Mental Capacity Act 2005
Second, individuals who lack mental capacity may be detained under the Mental Capacity Act 2005 (MCA). Detentions under the MCA are far fewer in number. These two regimes interact when authorising the deprivation of a person’s liberty in hospital arises from their care and treatment for a mental disorder. There are weaker legal safeguards for individuals detained under the MCA compared to the MHA. For example, when a person is detained for treatment under the MHA, their ‘nearest relative’ can exercise powers of discharge, or they can object to an application for admission for treatment.
As Dr Lucy Series of Cardiff University told the inquiry, because of the restrictions on the use of detention for people with learning disabilities under Section 3 MHA, ‘the MCA [is] used even if the person is objecting. In effect, this means that people with learning disabilities, far from being better protected against arbitrary detention in Assessment and Treatment Units, are more at risk’.
Deprivation of liberty on a ‘voluntary’ basis
Third, individuals may be detained on a voluntary basis. If detained as a ‘voluntary’ patient, an individual does not have the legal safeguards provided under the MHA or MCA. The inquiry heard evidence of patients being threatened with the prospect of being sectioned rendering their admissions effectively involuntary.
In spite of the safeguards contained within the MHA and MCA, the default position was to continue to detain. Current legislation was therefore failing to protect the Article 5 rights of those with learning disabilities and/or autism.
In some cases, detention may even reach the threshold of degrading treatment contrary to Article 3 where it becomes ‘humiliating and debasing’. These conclusions were informed by the January 2019 case of Rooman v Belgium, in which the Grand Chamber of the European Court of Human Rights clarified the obligations on states to provide treatment to persons in detention. The case concerned a sex offender receiving psychiatric treatment.
The Court held there was a ‘close link between the lawfulness of the detention of persons suffering from mental disorders and the appropriateness of the treatment provided for their mental condition’. Any detention of mentally ill persons, moreover, must have a ‘therapeutic purpose’. The mere ‘provision of medication does not suffice for a treatment to be considered appropriate and thus satisfactory under Article 5’. The Court highlighted ‘there exists an obligation on the authorities to ensure appropriate and individualised therapy’. In addition, by failing to substantively review the conditions of a patient’s detention, their Article 3 right to dignified treatment could be breached.
The Joint Committee proposed to remedy this problem by narrowing the criteria for detention under the MHA. This follows the recommendation of the 2018 independent review into modernising the legislation commissioned by the Department of Health and Social Care.
The new test for detaining those with disabilities and/or autism would have four limbs:
- treatment is necessary;
- treatment is not available in the community and only available in detention (i.e. the last and only resort);
- treatment is of benefit to the individual and does not worsen their condition; and
- without the treatment, there is a significant risk of harm to the individual or others.
While the report acknowledged such reform might increase the number of detentions under the Mental Capacity Act 2005, with its weaker safeguards, it submitted the European guidelines would apply to both regimes.
The Joint Committee’s recommendations may be considered in the context of a wider debate about the scope of mental health regulation. In the British Journal of Psychiatry, Baroness Hollins has argued for the complete removal of intellectual disability and autism as named disorders from the MHA. This echoes the National Autistic Society’s call for an independent review into the meaning of mental disorder. Hollins observed the criterion of ‘abnormally aggressive or seriously irresponsible conduct’ has no fixed definition under the MHA code of practice. The inclusion of these conditions is also discriminatory: ‘Why does a person with an intellectual disability have an extra reason to be detained under the Act that does not apply to anyone else in society?’
Such reform, Hollins argued, would better enable the conversation surrounding mental disability to transition from the medical realm towards understanding behaviour as a communication that can only be addressed in the person’s home environment.
The role of families as human rights defenders
The Joint Committee heard evidence as to how the families of detained young persons were often seen as ‘hostile’ and excluded from treatment reviews. In the Committee’s view, families should, unless there are exceptional circumstances, be given new legal rights to attend care, education and treatment reviews. The Committee also recommended that public bodies seeking injunctions against the families of those with learning disabilities and/or autism must obtain the specific approval for such an application from the Secretary of State for Health and Social Care. This would better safeguard rights protection.
Conditions in places of detention
While the Joint Committee was clear that the best way to prevent human rights abuses is to stop people with learning disabilities and/or autism being inappropriately detained, for as long as people are detained, the conditions of their detention must be human rights compliant. Separation and restraint policies must be strictly regulated through the collection and reporting of precise data on the use of such practices to the responsible minister and the Care Quality Commission. On every occasion that anyone is restrained or kept in conditions amounting to solitary confinement, their families must be automatically informed. In order to uphold the article 8 right to family life, families must be given the financial support they need to be able to visit their loved ones.
Following its failure to detect violations at Whorlton Hall and other hospitals, the report states the Care Quality Commission should be given enhanced powers of inspection. This is to enhance the regulatory mechanisms for human rights protection.