Why are people with learning disabilities and autism still detained in secure hospitals?

This week the BBC reported on Tony Hickmott’s long awaited move to a home of his own, after 21 years being held in a secure hospital. His parents, with the assistance of a family advocate and legal team, have campaigned tirelessly for Tony’s return home for many years. A Court of Protection judge finally ruled in 2021 that authorities had to find a home for him to live in the community. The Court has case managed the case closely ever since, to ensure that authorities took the necessary steps to commission a bespoke care package for him. It has been reported that Tony will move to a home of his own in the next month.

Despite being in a secure hospital setting since 2001, Tony has technically been ready for discharge since 2013, and it has been the delay in finding a suitable community care package for him that has prevented him from returning home. Unfortunately, this is not unique to Tony’s case. It is estimated that there are about 2,000 people with learning disabilities or autism detained in hospitals across England. A recent BBC investigation also discovered that around 100 of them, including Tony, had been detained for longer than 20 years.

Mental health solicitors can help support individuals who are being treated under the Mental Health Act and can represent them in Tribunals. However, many cases then become “stuck”, as people who are found by the Tribunal or by the treating clinician to be “ready for discharge” under the Mental Health Act, have nowhere to be discharged to, and this then requires them to stay in hospital. In cases such as Tony’s, this delay in finding a proper placement can last many years, causing significant harm and distress.

There are various legal options that can be considered where somebody is stuck in a hospital or Assessment and Treatment Unit (ATU), and the local authority or NHS body is failing to find an alternative placement and care package. For example:

1. Where the individual lacks capacity to make decisions for themselves about where they should live and what care they should receive, the Court of Protection can be asked to make decisions about what is in their best interests. This was the route used by Tony Hickmott’s parents in order to get the local authority to take action and commission a placement for Tony outside of the hospital.
2. Alternatively, it may be possible to challenge the commissioning authority (either the local authority or the NHS) by bringing judicial review proceedings, on the basis that the commissioners are acting unlawfully by failing to properly assess the person’s needs and make care provision available to meet their needs.
3. In some cases where people have been detained unnecessarily without a community placement being found, their human rights may have also been breached and they may have a claim for compensation.

In the wake of the Winterbourne View scandal, the government has repeatedly promised that it will take steps to reduce the numbers of people with learning disabilities and autism being stuck in hospitals. However, 7 years after the government launched its “Transforming Care” programme, it remains the case that many people remain in inappropriate settings without personalised care packages. Unfortunately, the only option open to many of these people is to individually challenge their care packages and take legal action against the local authority or ICB.

If you or a family member are in this position you may wish to seek legal advice. You can contact us here at Rook Irwin Sweeney, and we will discuss whether our specialist solicitors can help you.