by Terry McClatchey
What action was taken over reported abuses of the Mental Health Act in the Winterbourne View learning disability scandal?
I’ve been trying, alongside colleagues from the British Association of Social Workers’ mental health group, to get answers on that question for a number of years. So far we’ve had little success.
The Serious Case Review (SCR) found that patients at Winterbourne had informal hospital stays inappropriately converted into formal detentions. It also found that section 37 hospital orders – normally used for offenders who are mentally ill at the time of their offence – were used casually and without proper authority.
There has of course been action taken over the Winterbourne scandal. In 2012, six of 11 care staff were jailed for abuse and neglect of patients.
But, five years on from the BBC Panorama programme that exposed abuse of patients at Winterbourne, questions over the misuse of the Mental Health Act at the hospital remain.
Why? Because the care staff jailed would not have been qualified to sign off MHA decisions. Instead psychiatrists, Approved Mental Health Professionals (mostly social workers) and, in the case of section 37 orders, the higher courts, would have been involved.
A wall of silence
Soon after the SCR was published I wrote an article asking about this anomaly, and whether any action had been taken over the Mental Health Act findings.
I gave South Gloucestershire council, and the SCR report authors, an opportunity to comment in advance but they declined to say what action, if any, had been taken.
Faced with a wall of silence, I made a request under the Freedom of Information Act for correspondence relating to the Winterbourne View SCR. My request was rejected by the council.
I appealed to the Information Commissioner. My appeal was rejected in 2014. The commissioner backed the council’s argument that, while it possessed information about the Winterbourne View SCR, it did not have to respond to my request because the legal owner of the information was the local Safeguarding Adults Board, not the council.
The commissioner found the Safeguarding Adults Board (SAB) did not have to respond either as they were not listed as a public body under the relevant schedule to the Act and said the same applied to Local Safeguarding Children’s Boards (LSCBs). The IC’s 2014 decision left any matters under the remit of SABs or LSCBs as effectively exempt from FOI.
I appealed to a tribunal arguing that the IC’s decision was perverse and clearly outside the spirit of the “No Secrets” and “Working Together” guidance. I made the case that successive governments had clearly not intended to create an anomaly under which no public body was accountable for shared information.
The Information Commissioner’s case collapsed when the local authority had to admit that it was indeed the owner of the relevant material. South Gloucestershire Council had published the SCR report, had claimed ownership and copyright on the title page and had employed under contract the SRC chair and lead author.
The IC abandoned his case. The tribunal ruling replaced the IC’s original decision and made clear that where co-operative bodies such as SABs and LSCBs have no real legal personality of their own; the public authority that has leadership or co-ordinating responsibility for that body (in this case the local authority) retains accountability for freedom of information.
It was an important victory for transparency around adult and child safeguarding responses. Yet the question of the Mental Health Act misuse at Winterbourne View remained unanswered.
The council provided a ‘closed bundle’ of information to the tribunal. That meant judges and panel members could see it, but I couldn’t. Within the bundle, there was no information relevant to my requests about use of the Mental Health Act. As a result it was concluded that the council held no such information.
The case I have made all along is that the council should have such material or records – or very good reasons why they don’t. This does after all relate to the use, and misuse, of statutory legislation with a vulnerable group.
Terry McClatchey is a registered social worker