For decades the policy has been to close long-stay hospitals in preference for localised care services. Yet as Paul Burstow, then minister of state for care services noted in the Department of Health’s interim Winterbourne View report: ‘With the closure of long-stay hospitals… a new form of institutional care developed: what we now know as assessment and treatment units. Not part of current policy, and certainly not recommended practice, these centres have sprung up over the past 30 years. Containment rather than personalised care and support has too easily become the pattern...’

Norman Lamb, current minister for care services, has confirmed that the final report will be published shortly, together with a ‘concordat setting out the responsibilities of government, commissioners, providers, professional bodies and regulators and the timetabled actions that each body commits to deliver’.

However, as the Serious Case Review noted, ‘on paper, the policy, procedure, operational practices and clinical governance of Castlebeck Ltd (owner of Winterbourne View) were impressive’. It is people, not policies or paper trails, who ensure the safety of adults with learning disabilities. It will take time to source sufficient quality local facilities, and sadly for some, a community placement may not prove feasible. Families, professionals and the local community must work together to open windows into these closed communities, for the benefit of each person who continues to be cared for in a long-stay hospital.

In Winterbourne View, families were kept to designated visitor areas. If visits took place on the wards, or in communal living areas, then any resident who was unusually anxious or distressed would not go unnoticed. Most patients at Winterbourne View were detained under the Mental Health Act 1983. Consequently, they had a right to support from an Independent Mental Health Advocate. IMHAs have no loyalty to hospital management and will speak freely on behalf of the patient.

Adults with autism or learning disabilities may not be able to access independent advocacy without support. Commissioners of mental health and learning disability services, when contracting with providers, could insist on an IMHA referral for each patient who lacks the capacity to secure an advocate. Anyone detained under the act can appeal to the First-Tier Tribunal (Mental Health) and have the lawfulness of their detention scrutinised by an independent body. Adults with learning difficulties may not understand, or be unaware of, this right. If they make no appeal, then the hospital managers must refer their case to a tribunal after six months, and again after three years. The secretary of state may also refer a patient to a tribunal at any time. Anyone can request such a reference.

The Serious Case Review noted that these services should be viewed as ‘high risk’, subject to ‘frequent, more thorough, unannounced inspections’. To supplement the scrutiny of the Care Quality Commission, an independent monitoring board akin to that established in the prison service might provide greater protection. In these hospitals local people could fulfil a similar role, enjoying unrestricted access to patients. When vulnerable adults are placed in institutions in remote or rural locations, this may also create, for them, a community support network home-from-home.

The greater the opportunities for individuals – family, professionals, and members of the local community – to access and meet these vulnerable adults, the lower the risk of further abuse.

Sheree Green is senior associate at Anthony Collins Solicitors.

This piece first appeared in The Law Society Gazette on 15 November 2012. A copy of this article can also be found on their website – click here to view.