Winterbourne View

Citation

Dale, C. (2012), "Winterbourne View", Journal of Learning Disabilities and Offending Behaviour, Vol. 3 No. 2. https://doi.org/10.1108/jldob.2012.55403baa.001

Winterbourne View

Article Type: Editorial From: Journal of Learning Disabilities and Offending Behaviour, Volume 3, Issue 2

The damning verdict of the serious case review (Flynn, 2012) into the Winterbourne View scandal was that it was “a case study in institutional abuse”, which went unchallenged because of substantial failings by managers, commissioners, regulators and safeguarding agencies.

The review called for hospital placements for people with learning disabilities (LD) and autism to be radically reduced and to be subjected to much greater levels of scrutiny.

The finding that “The apparatus of oversight across sectors was unequal to the task of uncovering the fact and extent of abuses and crimes at the hospital”, comes as no surprise and somewhat states the obvious.

The findings give an uncomfortable resonance on the myriad of similar scandals which preceded it: the use of restraint by untrained staff; a lack of professional input or patient advocacy; the limited ways in which staff worked with patients; the service being led by its biggest staff group, the unregulated support workers; training skewed towards restraint practices with nothing about working with patients.

The finding that primary care trusts (PCT) placing people at Castlebeck did not set performance targets or effectively check the progress of patients is not unique to Castlebeck but commonplace across the sector. PCT’s neither had the resources or skills to perform this function in the main and it is naïve of the reviewers to believe that this was unique in this situation.

The sad truth is that the recommendations are obvious and only what the services and regulators should have been doing anyway. The real problem here is that there is little that provides confidence that this will prevent a re-occurrence of problems in the future.

Safeguarding

The Care Quality Commission (CQC) has identified a significant issue about concerns about the lack of understanding of the operation of the Mental Capacity Act in LD services.

A recent report by the CQC (2012) recommends that the NHS needs better training and more awareness of when and how to apply the Mental Capacity Act – Deprivation of Liberty Safeguards for patients. As “managing authorities” under the Deprivation of Liberty Safeguards, hospitals must apply to their PCT, and notify the CQC if they think that a patient needs to be deprived of their liberty for treatment or care which they can establish is in their best interests. CQC points out in the report however that there is a significant under-reporting by hospitals of notifications that they are required to make.

The CQC report highlights:

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  The value of a system of safeguards.

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  A large variation in practice across the country.

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  Low levels of training of staff.

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  Lack of clarity about when the safeguards might be needed.

CQC plan to improve their approach to monitoring the safeguards by:

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  Embedding the safeguards as a routine and major part of inspectors’ practice.

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  Improving information on managing authorities’ applications and authorisations for the safeguards.

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  Developing the ability to monitor the overall safeguards system and managing authorities.

Many services have developed good practice on the use of the safeguards, especially in involving people and their families in the decision-making process, but some were confused as to when restraints or restrictions on a person amounted to a deprivation of liberty. However, between a third and a quarter of care homes had not provided their staff with training on the safeguards, and in some cases only the manager had received training.

One of the key issues here is that the Mental Capacity Act is a complex legal framework and staff simply do not understand it. The root cause of the problem may not simply lie with training staff but in the Act itself which staff avoid using if possible because of its complexity and feel more comfortable with the Mental Health Act and its familiarity and straightforward approach.

It is interesting to note that the projected use of the Mental Capacity Act calculated by the government in advance of the legislation becoming law was far in excess of what has turned out in practice. Conversely the Community Treatment Order (CTO) enacted by the 2007 amendments to the Mental Health Act has far exceeded expectations of its use in practice. When exploring with clinician’s the reasons why this should be the response is that they find the Mental Capacity Act cumbersome and complex to use whilst the CTO is clear and simple to operate.

The Queen’s Speech

The Queen’s Speech (HM the Queen, May 2012) included a draft bill to modernise adult care and support in England, setting out what support people could expect from government and what action the government would take to help people plan, prepare and make informed choices about their care.

The main benefits of the draft Bill would be:

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  Modernising care and support law to ensure local authorities fit their service around the needs, outcomes and experience of people, rather than expecting them to adapt to what is available locally.

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  Putting people in control of their care and giving them greater choice, building on progress with personal budgets.

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  Consolidating the existing law by replacing provisions in at least a dozen Acts with a single statute, supported by new regulations and statutory guidance.

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  Simplifying the system and processes, to provide the freedom and flexibility needed by local authorities and social workers to allow them to innovate and achieve better results for people.

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  Giving people a better understanding of what is on offer, to help them plan for the future and ensure they know where to go for help when they need it.

These proposals if fully embraced by local services hold the potential to make significant differences in people’s lives and provide the prospect for the challenging group of LD offenders who frequently possess unique and/or idiosyncratic needs to get tailored support.

In this issue

This issue of the journal includes an insightful contribution from The Netherlands from Hendrien Kaal and her colleagues. Their study sought to discover what differences there are in personal characteristics and functioning between juvenile offenders with IQ<70, IQ 70-85, and IQ>85, in order to be able to better fit supervision and treatment to their needs.

A total of 1,363 case files of serious juvenile offenders were scored using an instrument that encompasses over 70 characteristics relevant in risk-assessment and for measuring problem behaviour.

The analyses showed that the behavioural and mental health problems and background characteristics of juvenile offenders of various IQ-levels (IQ<70, IQ 70-85, and IQ>85) are in many respects very similar. However, differences were found in, for example, social skills and relationships, and the needs inherent with having an intellectual disability have important implications for the way treatment is offered.

Brendan M. O’Mahony provides one of the first published papers to examine the interaction between an intermediary, a vulnerable defendant and barristers and the judge in the courtroom. It highlights the complexities of the language that is still used by lawyers in the courtroom and the difficulties that this causes for the vulnerable defendant. Additionally, this paper looks at a transcript of a police suspect interview and reveals the difficulties that the police caution presents to a vulnerable police suspect. It also reveals that whilst a lawyer and an appropriate adult were present during the police interview, complex language was still used and inadequately explained.

Dr Stephen J. Macdonald’s article describes his study into how social barriers might result in people with specific learning difficulties coming in contact with the criminal justice system (CJS) in the UK. This study applies the social model of disability to conceptualise a statistical relationship between socio-economic status and key life events for people with specific learning difficulties (i.e. diagnosis, educational achievements, and employment).

The study collected quantitative and qualitative data on the life experiences of 77 people with specific learning difficulties. This paper analyses the quantitative data and discovered statistically significant relationships concerning socio-economic status, specific learning difficulties and crime.

Recently, very few studies have used the social model of disability to understand pathways into offending for people with learning difficulties. To my knowledge, this is the first study to apply a quantitative analysis to the concept of disabling barriers and criminality.

Fola Esan and his colleagues describe the experience of a secure LD service in participating in the national shared pathway pilot project in secure services.

Some background drivers to the project are explored as well as the experience of service users and staff who were involved in the pilot project. The authors feel that the shared pathway will lead to considerable changes in practice and have implications for resources. Also, the shared pathway may be useful in ensuring evidence-based outcomes are routinely used by clinicians in secure services in collaboration. Recommendations on service wide implementation of the shared pathway are made.

Nicola McNamara describes her work as a speech and language therapist (SLT) in the North West Forensic Support Service who takes referrals for individuals over 16 who have a LD and who are, or are at risk of becoming, involved with the CJS.

Nicola describes how initially the number of referrals to the SLT was quite low, despite research suggesting the need within this client group is high. In an attempt to identify those individuals who may benefit from input, a communication screening tool was introduced which examined data from two to six month periods – pre and post the introduction of the communication screen. The results of this analysis and implications for practice are discussed as well as recommendations made for future service development.

Colin Dale