Readers may have seen that the High Court has recently approved a damages settlement declaring that the human rights of a man with learning disabilities, and those of his mother, were breached when he was living under a s117 aftercare package, at a care home called Veilstone, between May 2010 and October 2011 – that is, 13 years ago.
The man, who is called Ben, was so badly treated that it was alleged that it amounted to a breach of his Article 3 human right (torture, inhuman or degrading treatment) and the right under Article 8 (respect for family and private life). The general standard of care at Veilstone was wholly unacceptable and amounted to systemic neglect and cruelty.
Ben survived a regime of cruel and inhumane treatment at Veilstone, including excessive restraint, denial of family contact, and the repeated use of a “quiet room” against him, as punishment. 12 staff were eventually convicted of mistreating residents, including Ben at Bristol Crown Court (although one conviction had been overturned on appeal).
Ben lived under a regime of both punishment and unscrutinised control at Veilstone, as well as neglect with regard to insufficient food and water. His toys and clothes were confiscated from him because they were not regarded as “age appropriate’. He was made to complete chores and cleaning in the home before he was allowed trips out or phone calls with his family.
He was regularly (and sometimes overnight) sent to a small, locked room without natural light, a bed or toilet facilities – in which state of confinement, he would often scream and self-harm, without staff intervening or releasing him from the room.
One cannot be sure whether Ben lacked capacity, or was believed to have lost the presumption after proper assessment. It is not clear whether there was ever any DoLS paperwork put in in place in what was a care home, or whether the rest of the regime did amount to deprivation of liberty. However, even if there was, the means used to manage Ben was still so very disproportionate and inappropriate as to justify an assertion that it was a breach of Article 3 rights – which do not depend on a person’s incapacity.
We think that this form of management would never have withstood the scrutiny of the Court of Protection on a DoLS challenge. One can infer from the decision to settle the case that the commissioners at least acknowledged that the s5 cloak of legal protection could not be hoped to cover the situation in Ben’s case, with regard to presenting the measures uses as mere restriction, presumably because no thought process adequate for s6 purposes, on top of a belief in his incapacity, ever occurred.
We are not saying that deprivation of liberty cannot be lawful, of course – just that is has to be proportionate and necessary in relation to the harm to the person it is supposed to prevent, and that they must lack capacity. The allegation here was that there was unnecessary and disproportionate use of physical restraint against Ben, and a damages claim for false imprisonment. He must have lacked capacity, we think, because ANY physical restraint against a person WITH capacity would amount to an assault in civil as well as criminal terms – unless it was always to stop him from harming someone else, which makes it justifiable at common law.
The Secretary of State for Health inherited legal responsibility for the claim as the original NHS commissioner no longer exists as a legal entity. The claim under the Human Rights Act was brought against the local authority and NHS commissioners of Ben’s placement at Veilstone namely Devon County Council and the NHS Devon and Plymouth & Torbay Primary Care Trust. The settlement although it came with an apology, means that there is no public holding to account of the public bodies concerned with regard to how it ever came about that they were commissioning a service that was this bad, and doing nothing about it. The commissioner’s letter said this: “In our ongoing role as commissioners, we are committed to learning lessons as a result of the abuse that occurred at Veilstone.”
Staff pursued a policy of limiting and controlling Ben’s contact with his family, as part of Veilstone’s behaviour management regime, supposedly. The mother and son were used to seeing each other regularly and speaking often. Claire’s visits were often cancelled by staff at the last moment. At one point, towards the end of Ben’s placement, Claire was not allowed to see or speak to Ben for 42 days, causing her huge distress. Visits were sometimes shadowed. Ben was denied regular and private unmonitored communication with his family. His phone calls were listened to and recorded by staff. Ben’s records show that he would repeatedly ask to see or speak to his family and that, at times, he would call out for his mum when he was in the quiet room. The violation of the mother’s own right to respect for her family life affected her and her relationship with her son, to a significant extent.
Ben’s family contacted the commissioners and the psychiatrist about the closed culture at Veilstone, and were ignored. That is to say, despite owing human rights compliance as part and parcel of being the commissioning public body, and despite being bound by positive obligations, it did nothing to get the matter to the Court of Protection itself.
A CQC inspection eventually revealed the quiet room and unlawful deprivation of liberty of residents at Veilstone and he was removed.
A psychologist diagnosed him with Post Traumatic Stress Disorder as a result of the abuse he suffered at Veilstone. The Defendant commissioners accepted that Ben had been caused psychiatric harm and that he remained affected by the abuse to this day.
The Court approved a settlement which included the payment of a confidential amount of compensation to Ben and Claire (reportedly £10K for Claire).
This outcome should be absorbed by relatives and supporters of people detained in psychiatric services who remain to be convinced that any good at all has come out of the Hollins thematic review of the conditions within such hospitals.
The remedies which exist, include the following:
- Complaint to the commissioner (an NHS complaint or a council complaint if the issue is in a care home) – IMHAs can be used to take these forward if someone is still in hospital; and there is a right to one for an NHS complaint.
- A Safeguarding referral to the local council in the area plus judicial review for failing to follow through on the findings
- A regulatory referral to CQC if the care home or hospital is primarily to blame, rather than the commissioner and in particular a referral to CQC regarding the Mental Health Units Use of Force Act;
- Parliamentary Ombudsman/Joint team local government ombudsman complaint
- Mediation with a systemic theory specialist
- A discrimination claim using both the goods and services part of the Equality Act 2010 and the public sector equality duty in the County Court or High Court
- A public law claim in the Administrative Court (with or without a damages claim for breach of human rights) for meeting needs with an inadequate and inappropriate standard of care planning or contract monitoring,
- A personal injury action in the High Court for damages – and an application for permission under s139 MHA if the incident occurred in hospital
- A corporate manslaughter prosecution, potentially.
In conclusion, whilst it can be seen that it is not the case that there NO remedies available in the legal system, it takes super-human reserves of resilience and courage to go the distance.