The Equality and Human Rights Commission (EHRC) has launched a legal challenge against the Secretary of State for Health and Social Care over the repeated failure to move people with learning disabilities and autism into appropriate accommodation.

"We cannot afford to risk further abuse being inflicted on even a single more person at the distressing and horrific levels we have seen. We need the DHSC to act now."

The EHRC is the regulatory body responsible for enforcing the Equality Act 2010. It has longstanding concerns about the rights of more than 2,000 people with learning disabilities and autism being detained in secure hospitals, often far away from home and for many years. These concerns increased significantly following the BBC’s exposure of the violation of patients’ human rights at Whorlton Hall, where patients suffered horrific physical and psychological abuse.

The human rights body has now sent a pre-action letter to the Secretary of State for Health and Social Care Matt Hancock, arguing that the Department of Health and Social Care has breached the European Convention of Human Rights (ECHR) for failing to meet the targets set in the Transforming Care programme and Building the Right Support programme.

These targets included moving patients from inappropriate inpatient care to community-based settings, and reducing the reliance on inpatient care for people with learning disabilities and autism.

Following discussions with the DHSC and NHS England, the EHRC is also not satisfied that new deadlines set in the NHS Long Term Plan and Planning Guidance, will be met. This suggests a systemic failure to protect the right to a private and family life, and right to live free from inhuman or degrading treatment or punishment.

The Planning Guidance targets are:

  • Reduction in reliance on inpatient care for people with a learning disability and/or autism (CCG-funded) to 18.5 inpatients per million adult population by March 2020.
  • Reduction in reliance on inpatient care for people with a learning disability and/or autism (NHS-England funded) to 18.5 inpatients per million adult population by March 2020.

Response

Rebecca Hilsenrath, Chief Executive of the Equality and Human Rights Commission, said: "We cannot afford to miss more deadlines. We cannot afford any more Winterbourne Views or Whorlton Halls. We cannot afford to risk further abuse being inflicted on even a single more person at the distressing and horrific levels we have seen. We need the DHSC to act now."

"These are people who deserve our support and compassion, not abuse and brutality. Inhumane and degrading treatment in place of adequate healthcare cannot be the hallmark of our society. One scandal should have been one too many."

The DHSC has 14 days to respond to the EHRC’s pre-action letter.

Alternatively, the EHRC has offered to suspend the legal process for three months if DHSC agrees to produce a timetabled action plan detailing how it will address issues such as housing and workforce shortages at both national and regional levels. The EHRC is also calling for the immediate implementation of recommendations made by the Joint Committee on Human Rights and Rightful Lives 8 point plan.

Alongside its discussions with DHSC, CQC and NHS England, the EHRC has been calling for an enforceable right to independent living and has developed a legal model to incorporate it into domestic law. The Commission say this would protect the right of disabled people to live independently and as part of the community, and it would also strengthen the law that put a presumption in favour of living in the community and the views of individuals at the heart of decision-making.

A Department for Health and Social Care spokesperson told Learning Disability Today: "We are committed to protecting the rights of everyone with a learning disability or autism, and are determined to continue reducing the number of people with these conditions in mental health hospitals."

"Abuse of any kind against patients in care is abhorrent and we take any allegations very seriously. We have received the pre-action letter from the ECHR [on Tuesday] and will respond in due course."

Dan Scorer, head of policy and public affairs at the learning disability charity Mencap, said: "This domestic human rights scandal has been allowed to continue for far too long. Over 2000 people with a learning disability and/or autism continue to be locked away in these ‘modern day asylums’, often hundreds of miles away from their family, where they are at increased risk of abuse and neglect."

"The repeated failure of Government and NHS England to get people out of these units and address the huge regional variations in access to the right community support is simply unacceptable. That’s why we welcome the Equality and Human Rights Commission’s legal intervention to challenge the Department of Health and Social Care’s repeated failure to stop this scandal."

"People with a learning disability and/or autism deserve to live in homes, not hospitals. We welcome the EHRC’s call to enshrine in domestic law the right of disabled people to access the right community support to live independent and fulfilled lives."

When does the EHRC intervene?

The EHRC says it uses its legal or enforcement powers when "it is the best way to achieve change", such as:

  • to clarify the law, so people and organisations have a clearer understanding of their rights and duties
  • to highlight priority issues and force these back to the top of the agenda
  • to challenge policies or practices that cause significant disadvantage, sometimes across a whole industry or sector