CQC – Segregation may be breaching human rights
The CQC recently published interim findings about the segregation in mental health wards of young people and people with a learning disability or autism. The report focuses on the care provided to 39 individuals, 16 of whom had been in segregation for a year or more. There have been longstanding concerns regarding hospital care for those with a learning disability or autism and despite focus from the commencement of the Transforming Care Programme, there remain very serious concerns.
Matt Hancock, commissioner of the work, commented that he was appalled by stories of people with autism and learning disabilities spending prolonged periods in isolation in mental health units, and has vowed to improve their treatment.
What the CQC found
The CQC visited 39 people who were in segregation. They found:
- A high proportion of people in segregation had autism.
- Typically, those in segregation had communicated their needs in a way that others found challenging. Moves between different residential settings were often triggered by a break down in relationships and admission to hospital was seen as the only option.
- Some wards did not have a built environment that was suitable for people with autism.
- Many staff lacked necessary training skills to work with people with autism and many were unqualified. When commenting upon what good care looks like the CQC highlights the importance of support alongside training for staff in order to maintain a positive attitude, noting the physical and emotional impact that working with people with severe challenging behaviours may have on staff.
- Several people were not receiving high quality care and treatment.
- In the case of 26 of the 39 people, staff had stopped attempting to re-integrate them back onto the main ward environment, usually because of concerns about violence and aggression.
- 13 people experienced delayed discharge due to there being no suitable package of care available in a non-hospital setting.
The CQC concludes that the current system of care has failed those who have ended up in segregation in a hospital and that the current system is not fit for purpose.
- There should be an independent review of the care provided to and discharge plan for each person who is in segregation.
- An expert group should be convened to consider the key features of a better system of care for this group of people.
- Urgent consideration should be given to how safeguards can be strengthened.
- All parties involved in providing, commissioning or assuring quality of care of people in segregation should explicitly consider the implications for the person’s human rights.
- The CQC to review approach to monitoring hospitals that use segregation.
Segregation, Human Rights and Equality
The CQC highlights that a decision to place a person in segregation without the necessary process being followed may amount to a breach of a person’s right to liberty and security.
It is noted that even if a decision to place someone into segregation is lawful, there could be breaches of a person’s right to private and family life as regards the conditions that they are experiencing. The CQC provides access to outside space, possessions or to family and friends as areas which ought to be carefully considered as regards their lawfulness, legitimacy and necessity. Routine use of force may also breach the right to private and family life if such actions are not proportionate to the level of risk.
The CQC notes that practices and interventions which cause significant distress may also amount to a breach of a person’s right to be free from inhuman and degrading treatment.
Providers also have a duty under the Equality Act 2010 to make reasonable adjustments for a disabled person using their service, which includes those with autism. This could include making changes to the physical environment or meeting specific communication needs. The CQC confirms segregation is a human rights issue and that this will be considered further as part of their ongoing review.
The CQC emphasises that Providers must only impose restrictions on people after careful consideration, these restrictions must be reviewed regularly to ensure they remain necessary and proportionate to the level of assessed risk.
Phase two will explore restrictive practices in a wider group of settings. Provider information returns have been sent to 116 low secure mental health wards and to 4,335 adult social care services. The final report and recommendations are due to be published in spring 2020.
To ensure that care plans for LTS are appropriate, we advise that these should be reviewed by your medical director or your legal team for a second opinion.
This briefing is for guidance purposes only. RadcliffesLeBrasseur LLP accepts no responsibility or liability whatsoever for any action taken or not taken in relation to this note and recommends that appropriate legal advice be taken having regard to a client's own particular circumstances.