Was action taken over Mental Health Act misuse at Winterbourne View?

I've been trying to find out through Freedom of Information requests and more - with little success, writes Terry McClatchey

Picture: Marek/Fotolia

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

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9 Responses to Was action taken over Mental Health Act misuse at Winterbourne View?

  1. Roger Hargreaves September 19, 2016 at 11:05 am #

    In 2012-13 the Mental Health Alliance produced a report on “Learning the Lessons from Winterbourne View” and as its then lead on DoLS I also raised the question as to why the extensive safeguards provided by the Mental Health Act – so much better, in theory, than those of DoLS – appeared to have failed so completely. However, that question could have been answered only by an analysis of the 50 or so individual patients’ clinical and legal records, including those held by their solicitors or advocates, and I established that that hadn’t been done by anybody. The SCR itself had no information as the subject had been within the remit of the review carried out by NHS South of England, but that hadn’t looked at individual records. In practice it would have been difficult to do so, as by then the hospital had closed and the records would have followed the ex-patients back to their home areas; and even then, as the review had no statutory right of access this could have been only with the ex-patients’ permission, a lengthy process if they lacked capacity. In addition, Tribunal hearing records might have been available only from the Tribunal itself or the solicitors, and many of the statutory decisions (i.e the making of the original Section 3s or 37s) would have been taken before admission to Winterbourne View, meaning yet other sets of files to be tracked down and access negotiated. In view of the pressure to report quickly I can understand why the review didn’t attempt to go down that road.

    The CQC, though, under the powers inherited from the Mental Health Act Commission (MHAC), did have a statutory right of access (MHA Section 120), and also the greatest need to explain why the safeguards failed since the MHAC was set up in 1983 explicitly to ensure that, after a series of similar scandals during the 1970s, such things could never happen again. However, the October 2011 “Internal Management Review” which fed into the SCR review appears to have relied solely on whatever information their local Commissioners had acquired during their visits, and doesn’t suggest that the CQC ever considered inquiring into what they ought to have known but clearly didn’t.

  2. Victoria September 19, 2016 at 11:31 am #

    Is the next step a public inquiry which has the power to call for all the medical records of each person detained at WV – those records will hold the individual MHA records.

  3. LongtimeSW September 19, 2016 at 2:13 pm #

    . . . . . or is the ‘hidden agenda’ the abject failure of the privatisation of aspects of social care that is being covered up? What else is being covered up and being hidden behind the wall of silence.

    Profits were made from Winterbourne View – they were made at the expense of service user’s Rights (including their Right to a fair hearing if detained under MHA) – even now it seems there remains whether there is/was a question as to the relationship between those who commissioned the service and those who provided it as well as who is/was accountable alongside the frontline workers for what happened.

  4. Robert J. Nisbet September 19, 2016 at 3:51 pm #

    “The more he looked inside the more Piglet wasn’t there” . Winnie the Pooh – AA Milne The Hose at Pooh Corner.

    Terry has done an admirable job on a tackling a fundamental question that remains still unanswered! Why was it that the Mental Health Act, with all its checks,balances, rights, and with the responsibility placed upon the hospital’s most senior professionals for their patient’s care and clinical treatment of those detained under the MHA failed to undertake those responsibilities, let alone exercise a duty of care for those not detained. A failing to such an extent that gross abuse continued for months seemingly without those ‘Responsible Clinician’s knowing or intervening!

    We know that 35 patients were admitted to Winterbourne View Hospital under a section of the Mental Health Act, [4 people under S.37 & S.37 [41], 8 under Section 2 & 23 under Section 3]. Of the 13 were admitted informally 6 were detained after being admitted informally. As other commentators of this fact have noted, there are no details in the SCR regarding the Deprivation of Liberty Safeguards, and as such should raise the question as to how legal were those informal admissions?

    Raising concerns that if those clinicians still have the ‘authorisation‘, allowing them to carry out responsibilities under the Mental Health Act, as well apply standards of care their professional registration requires, tragedies such as Winterbourne View are may, sadly, occur again.

    Is it not unreasonable for those who commissioned services at Winterbourne View, to also have had some confidence that for the person the NHS has funded & placed, & if also detained under the MHA, would be afforded the correct & proper safeguards that the MHA [should] provide in relation to their human rights? This being the named responsibility of those who are authorised by the Secretary of State for Health, to do so under the Act. Additionally the ‘responsibility of scrutiny ‘ by those persons detailed in the Act to undertake this.

    In considering how the Mental Health Act should have made a significant contributed to the safeguarding & protection of patients at Winterbourne View, this response to Terry’s article is limited.

    I’ll mention just a few whose contribution to the ‘checks & balances’ of this Act should have been present. The responsibilities of professionals, Hospital Managers, Mental Health Act Administrators, Tribunals, the Mental Health Act Commission[CQC] & ultimately the Secretary of State, to be the essential ‘checks & balances’. Checks & balances focused on the patient’s treatment, appropriateness of detention under the Act, their overall welfare & at the core, the protection of the patient as well as others.

    So why did these different checks & balances fail so catastrophically in respect to those patients detained at Winterbourne View? Despite Terry’s considerable efforts, time and commitment we still don’t know. Is that acceptable? Does not knowing not really matter’ anyway? ‘Winterbourne will never happen again, so why rake over old coals!’

    I have been around long enough to know that history has a consistent habit of repeating itself. We do need to know what history teaches us. Or in this matter if the checks and balances of the MHA failed, then what may need to change to try and ensure they don’t fail again.

    Take note of the aircraft industry – safety is everyones responsibility.

    Revisiting some of the media archives of post Winterbourne & in particular some of the early commitments, action verbally promised [and recorded] made in 2012 by a number of bodies. Bodies, organisations with either responsibility for the workings of the Act, or for those representing professionals undertaking statutory duties ‘required’ by the Act.

    To paraphrase comments made by a Senior Judge in the Court of Protection in his summing up of case. ‘You [public bodies and professionals] are servants of the law not the executives of the law [‘makers/interpreters of the law’]

    Recalling some of what was said at the time by those organisations as key players, I’ll detail a few:

    The Royal College of Psychiatry president at the time [2012], Sue Bailey, blogged on the college’s website, [08812] views as to the human rights of the executed prisoner Martin Wilson in Texas, & rightly the moral outrage that such an act by the State of Texas should bring.

    Whilst supporting ‘moral outrage’ about what is happening in someone else’s ‘backyard’ is to be applauded, little appeared to be said as to what should be happening in their own organisation’s backyard, Or have they now addressed this. If so how?

    The Royal College did issue a statement with regards to the Winterbourne View SCR, dated 8 August 2012, stating “the college will be ensuring all psychiatrists working to the highest professional standards in the care of people with learning disabilities who have challenging behaviour” So how have they now addressed this?

    By contrast, nothing appeared at the time when Winterbourne was headline news from the BMA, GMC, the British Psychological Society, the Royal College of Occupational therapists, or even the Nursing and Midwifery Council & Royal College of Nursing. Perhaps they did this later!

    However I note that the GMC’s deputy and chief executive, Paul Philip, when giving evidence at the House of Commons Health Select Committee in June 2012, advised “there must have been doctors in the vicinity. We are working with Castlebeck, the police and the Care Quality Commission to identify those doctors. So far we have a few names and we will be looking to follow that up”.

    The comments came in response to Stephen Dorrell MP, the then Chair of the Parliamentary Health Committee, who said a GMC investigation would “send a powerful message into the system on professional accountability. GMC guidance states that doctors have a duty to act if they witness evidence of malpractice.”

    Last but not least something I came across at the time on the website of the NHS Networks, whose ‘strap line; is ‘Connecting people and ideas for better health’, in which their Director of Development, Julian Patterson, blogged in an item titled “Lessons from the banks for CCG’s” [16th of July 2012]

    “…strong enforcement and clear regulation are mutually dependent. You cannot have one without the other. Punishing the guilty is only possible if you know who they are and they know what they are responsible for.”

    “The report on Winterbourne View is just the latest excuse for an investigation to draw all the usual conclusions. Everyone meant well and tried hard, but things went wrong. We’ll try not to do it again. A few people like due in court to answer individual charges of brutality. Nobody responsible for the systematic failure at Winterbourne View and places like it will get anywhere near a court room, let alone a jail.”

    Finally my thanks again to Terry for persevering on this matter. What he came up against in relation to be able to access important information as to ‘what, when & how’ those responsible for those ‘patients’ at Winterbourne Hospital who were detained under the MHA ,carried out their duties and responsibilities, we still don’t know!

    The Hillsborough disaster and as to what we now know about the complicity of cover up by the South Yorkshire Constabulary rightly sent shock waves as to why they did this, and moreover kept digging themselves a bigger hole to fall into!

    Maybe we will have to wait many more decades before the records regarding how the MHA was operated at Winterbourne come to light. Do those who are the most vulnerable in our society and so reliant upon family and professionals to ensure their safety and their human rights are upheld have such time to wait to know that things are being done to ensure that statutes there to protect them and others are being made to work, based on how did the Mental Health Act function at Winterbourne!

    Terry McClatchey very kindly contributed to an article, alongside many other Social Workers & AMPH’s I ‘penned’ in September 2012 ‘Shame upon Your Houses’ Re Winterbourne View SCR, Robert Nisbet, BASW Mental Health Reference Group. Link to article:


  5. Terry McClatchey September 19, 2016 at 8:59 pm #

    Roger, I can tell you that there was individual case analysis of the MHA abuses. That was led by a MHA specialist QC who was appointed to advise the SCR panel. I was not allowed to see her analysis but its existence and who did it was disclosed to me as part of the FoIA Tribunal. The rationale (which I fully accepted) was that it would not have been appropriate for me to see the sensitive personal information of vulnerable individuals with whom I had no professional contact.

    Nonetheless, the Judge and other tribunal members did read those documents in depth and were able to assure me that they supported the findings on the MHA abuses as reported in the SCR. There was no information held as to what was done about those abuses. A second FoIA request made on the same basis as that considered by the Tribunal, covered the time period up to the recent past. That too revealed that nothing was done about the reported and repeatedly endorsed findings. I enquired especially about an individual (given a pseudonym in the SRC) who was subject to particularly bizarre misuse of Section 37. Nothing was done about the individual professionals who signed off the MHA documentation. The Tribunal was able to confirm these facts in terms of FoIA but it was quite properly ruled to be beyond their remit to enquire into the reasons why nothing was done about those abuses.

    I raised my concerns with the CQC. They had no interest in going beyond repeating platitudes about supporting the findings of the SCR. They did not want to know why nothing was done about abuses that they accept happened.

    There was no pressure for the SCR to report quickly. Their findings were in fact held back as they could not be published in advance of the criminal convictions of the direct physical abusers.

    In my view it was not for the SCR to deal with the MHA professional abusers but having published their findings, I believe it was for the authorities in South Gloucestershire to follow up on the conclusions that were passed to them. They have consistently refused to do so or say why they have not.

  6. Roger Hargreaves September 20, 2016 at 11:38 am #

    The point I made on behalf of the Alliance in response to the final SCR report (and with which the authors didn’t disagree) was that “whilst it notes that “nearly three-quarters of people at Winterbourne View hospital (73%) were detained under the Mental Health Act 1983, but it is clear that the principles and safeguards of the Mental Health Act were not properly applied” there’s no analysis of why that was i.e. why the multiple layers of safeguard built in – AMHPs, Nearest Relatives, IMHAs, Hospital Managers, Second Opinion Doctors, access to solicitors, independent reports, Tribunals, visits by Commissioners – all seem to have been completely ineffective, or any indication that such an analysis is being carried out. One of the actions is that “during 2014 the Department of Health will update the Mental Health Act Code of Practice and this will take account of findings from this review” but it’s hard to see what it will be taking account of in the absence of such an analysis.”

    I think the reasons for the lack of such an analysis are apparent from section 4(1) (b) of the introduction to the report, which details the difficulties of locating information, obtaining permission to access it, and time constraints which limited follow-up of issues, with the result that “the histories of the majority of the 51 patients are not known.” What analysis WAS done seems to have focussed on the issue of whether the Responsible Clinicians had acted unlawfully or unprofessionally (hence the need for a QC’s opinion), whereas I was asking primarily about inputs from outside, which are the only real safeguard against abuse within a “total institution”. That information couldn’t have been obtained purely from inspection of the clinical notes even if they’d all been available, and would have required a much bigger, longer-term exercise.

    It wasn’t, in any case, within the strict remit of the local authority in its safeguarding role, nor did it have the necessary powers to obtain or hold such information. It did, however, fall squarely within the powers and responsibilities of the CQC under MHA Section 120 – “the regulatory authority must keep under review and, where appropriate, investigate the exercise of the powers and the discharge of the duties conferred or imposed by this Act so far as relating to the detention of patients or their reception into guardianship or to relevant patients.”

    So why didn’t it investigate ? A snip from one of my e-mails to the Alliance working party in 2012 – “Winterbourne View was a catastrophic failure of regulation over an extended period, but all the focus is on the culpability of Castlebeck rather than that of the CQC and its predecessors the HC and MHAC. I’ve just seen an interview with Cynthia Bower (then Chief Exec of the CQC) in which she seemed to be denying any responsibility for the actions (or lack of ) of the previous organisations, saying that “we (i.e CQC) have just got to grips with these services”, but even if you accept that it’s a valid excuse (and it isn’t) that inspections virtually ceased during the reorganisation and registration exercise, what was wrong at W V (and some of the other Castlebeck establishments) had clearly been going wrong for a long time before that.”

    The body that needs to be held to account is not the hapless South Gloucestershire Council, but the statutory body which was responsible for regulating this hospital, for policing the operation of the MHA, for investigating breaches thereof, and (S120A and B) for publishing a report of its investigation and requiring action to be taken. And why didn’t it investigate ? Because it was the chief culprit.

  7. Terry McClatchey September 21, 2016 at 11:36 am #

    For those interested in the FoI Tribunal decision, it’s publicly available as below.


    It’s certainly the case the CQC had primary responsibility for MHA matters and they were directly represented on the S Glos SAB receiving confidential information from the SCR authors.

    More could also have been done locally. While some MHA Sections may have commenced remotely, the reported abuses of inappropriate conversions of voluntary patients to detained status and casual use of S37 clearly happened to people who were then in WBV. The SCR authors had sufficient evidence to reach the conclusions they did. I had originally questioned whether those conclusions were valid but following the FoI Tribunal, I’m satisfied they were.

    That leaves hanging the question of why nothing was recorded about dealing with those abuses or preventing similar ones from happening again elsewhere. S Glos Council went to considerable efforts over a sustained period and at significant expense to avoid saying that they had no records of having done anything or rationale for doing nothing.

    Normally we would expect the CQC to take an active interest in a local authority that has been inactive while in possession of confirmed and validated reports of malpractice/abuse in its area.

  8. LongtimeSW September 21, 2016 at 1:25 pm #

    . . . chief culprit – alongside Castlebeck and those who knew or should have known that the service they were commissioned and paid for and profited from goes to the heart of why there has been no action – something stinks about this – are we to wait years until we are told who knew what and when?


  9. Planet Autism September 21, 2016 at 2:32 pm #

    I can tell you that this farce is the same across regulatory bodies and complaints and FOI processes. CQC, NHS Monitor, NHS England, GMC, PHSO et al are all the same. Refuse or obfuscate genuine FOI requests or investigations, on the same tired old excuses or handling style. They simply don’t want the massive scandals to come out and will cover their rear ends every time. They know exactly what’s going on and even when they didn’t, they won’t let their failings come to light. It’s often the public and whistleblowers that shine a light on things – and look what happens to them. You think successive Governments have not deliberately set it up this way? Think again.