News story legal challenge

12th February 2020 • Emma Cooper

A legal challenge has today been launched against the Secretary of State for Health and Social Care by the Equality and Human Rights Commission.

This action comes after a repeated failure to move people with autism and learning disabilities into appropriate accommodation. The treatment of these people has ‘been a breach of fundamental human rights,’ according to CEO of the Equality and Human Rights Commission, Rebecca Hilsenrath.

The legal challenge follows longstanding concerns about the rights of more than 2,000 people with learning disabilities and autism detained in secure hospitals. These are often far away from home and over very long periods of time. These concerns increased significantly following the BBC’s exposure of the shocking violation of patients’ human rights at Whorlton Hall, where patients suffered horrific physical and psychological abuse.

More recently, the tireless campaigning from parents themselves over the treatment of their children has had a huge impact and created a collective voice which can no longer be ignored.

The Equality and Human Rights Commission has sent a pre-action letter to the Secretary of State for Health and Social Care. It argues that the Department of Health and Social Care (DHSC) has breached the European Convention of Human Rights (ECHR) for failing to meet the targets set in the Transforming Care program and Building the Right Support program.

These targets included:

  • Moving patients from inappropriate inpatient care to community-based settings
  • Reducing the reliance on inpatient care for people with learning disabilities and autism.

Following discussions with the DHSC and NHS England, the Equality and Human Rights Commission are 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 DHSC has 14 days to respond to the pre-action letter. Alternatively, the Equality and Human Rights Commission 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.

Rightful Lives

The Equality and Human Rights Commission are also calling for the immediate implementation of recommendations made by the Joint Committee on Human Rights and Rightful Lives Eight Point Plan.

In October 2018, Rightful Lives wrote an open letter to the Equality and Human Rights Commission asking that they take action against the government regarding the treatment of autistic people and those with learning disabilities in ATUs.

Alongside their discussions with DHSC, the Care Quality Commission and NHS England, the Equality and Human Rights Commission has been calling for an enforceable right to independent living. Furthermore, it has developed a legal model to incorporate it into domestic law. This would protect the right of disabled people to live independently and as part of the community. 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.

Reaction

There has already been a positive reaction to news of this legal action from parents and organisations on social media. The National Autistic Society has stated on its Twitter account,

‘We at the National Autistic Society welcome this legal challenge and urge the government to listen and fix this scandal once and for all. Despite repeated promises from different governments, the number of autistic people reported in mental health hospitals keeps going up.

Autism is not a mental health condition. Yet autistic children and adults are being held in mental health hospitals for months, even years, and in some cases subject to inappropriate restraint, seclusion and overmedication.’