Equalities watchdog mulls legal action amid claims Department of Health and Social Care plan for detained patients “falls well short of what’s needed”

The chief executive of the Equality and Human Rights Commission has said the watchdog is exploring how best to use its legal powers – including action in the courts – to help patients inappropriately detained in secure hospitals, and their families, amid claims that a Department for Health and Social Care (DHSC) plan "falls short of what's needed".

The DHSC said earlier in July that its Building the Right Support Action Plan brings together in one place commitments from across government and public services to ensure there is suitable community support available for people with a learning disability and autistic people. “This supports government plans to reduce reliance on mental health inpatient care.”

It added that measures brought together in the action plan include:

• speeding up discharges for people with a learning disability and autistic people supported by additional targeted funding of more than £90m in 2022 to 2023 including:
  • a £40m investment from the NHS Long Term Plan to continue to improve the capacity and capability of crisis support for autistic people and people with a learning disability in every area of the country, and £30m of funding to continue putting key workers in place for children and young people with the most complex needs
  • a £21m Community Discharge Grant to local authorities, which will help people with a learning disability and autistic people to be discharged

• limiting the scope under which people with a learning disability and autistic people can be detained by reforming the Mental Health Act to improve how people are treated in law
• building on specialist training for health and care staff to ensure they have the skills to better care for people with a learning disability and autistic people.

The DHSC said: “The plan focuses on keeping people safe now, and also delivering long-term change for people with a learning disability and autistic people. It aims to ensure people:

• are treated with dignity and respect
• experience personalised care and treatment
• can live an ordinary, independent life in their own home as part of the community.”

Minister for Care and Mental Health Gillian Keegan said: “For too long, autistic people and people with a learning disability have remained as inpatients in mental health units – not necessarily because it was the best place, but because of failings in the system and a lack of community facilities to support them.

“I am committed to driving further, faster progress to ensure people with a learning disability and autistic people, of all ages, receive high-quality health and social care support in their communities when they need it.”

Responding to publication of the Department of Health and Social Care’s (DHSC) plan, Marcial Boo said: “Every day a person is detained in hospital unnecessarily is a day too many. It is therefore unacceptable, more than a decade after action was first promised, that hundreds of people with autism and learning disabilities are still being kept as in-patients when they could be receiving community care.

“In too many cases, patients are also subject to restraint and segregation, which can worsen their conditions and make it increasingly hard for them to go home. In extreme cases, there could be significant violations of human rights.”

Boo said the DHSC’s plan, which was delayed two years by Covid, “does not go far enough and appears to suggest that some patients will still be placed in hospitals rated as inadequate”.

He added that the EHRC welcomed the draft Mental Health Bill, which aims to reduce the number of inappropriately detained patients in the long term, but added that action must be taken immediately to move people out of unnecessary detention and into the community.

“The EHRC is exploring how best to use its legal powers to help patients and their families. This may include action in the courts,” he said.

The EHRC is writing to DHSC outlining its concerns, which include:

• The suggestion that in a few circumstances, people will be admitted to a hospital rated inadequate by the Care Quality Commission.
• The timescales for delivery are not urgent enough, “particularly in light of the apparent breaches of human rights in in-patient settings reported over years”.
• It is not clear how or when the plan will help people who are ready to be discharged today.
• The plan does not explain why earlier measures did not work, why targets have been missed, nor how the proposed actions will address previous failures.
• The spending commitments are unclear and there is no analysis of how each of the measures will reduce admissions.

In discussions with DHSC, the Care Quality Commission and NHS England, the EHRC has called for an enforceable right to independent living for disabled people.

The EHRC said it had developed a legal model to incorporate it into domestic law.