It is hard to believe it is five years since Panorama uncovered the horrifying abuse taking place at Winterbourne View, a private hospital near Bristol for people with severe learning disabilities and challenging behaviour. The revelations led to a fundamental change in how we see and scrutinise residential care, and particularly those being looked after in the private sector. While not all of the changes discussed here were a direct result of the Winterbourne View scandal, it has clearly acted as a catalyst for many long overdue changes in the sector.
One of the most fundamental changes in the last five years has been the introduction of 'new-style' CQC inspections, focussing on five factors: whether services are safe, effective, caring, responsive and well-led. While this new inspection scheme is still being rolled out, it has already had a major impact on how care services are viewed, in particular due to the new rankings of 'outstanding', 'good', 'requires improvement' and 'inadequate'. This has placed increased pressure on care services not just to meet basic expectations but to exceed them in order to attract new service users or be attractive to commissioners. With this (and as a result of the Mid Staffs Inquiry) has come the introduction of new fundamental standards, seeking to ensure that everyone cared for by a CQC registered service receives the fundamental standard of care, including that they must not suffer any form of abuse or improper treatment while receiving care.
One particular discovery after Winterbourne View was that several authorities, including the CQC, were aware of complaints about poor treatment there but that these complaints had not necessarily been adequately dealt with. CQC now takes into account complaints and concerns about care providers to inform its upcoming inspections. In particular, one of its four strategic priorities for the next five years is to "deliver an intelligence-driven approach to regulation". This includes basing its upcoming inspection programme on the results of previous inspections and sharing information more widely, including from other services from the same provider and the public.
Use of CCTV in care settings
The shocking abuse at Winterbourne View was uncovered through the use of hidden CCTV in the hospital to unmask the difference between the attitude of staff in the presence of visitors and their true behaviour. In the wake of this there was a reported rise in service users and their families using surveillance to monitor staff, as well as providers installing their own surveillance. In response, in 2014 CQC released guidance for both service providers and users on the use of overt and covert surveillance in care settings. While this guidance was not intended to provide advice one way or the other, it did highlight concerns around the rights of care staff and the privacy and dignity of service users, especially where they had not or were not able to consent to their care (let alone their daily lives) being recorded.
Deprivation of Liberty Safeguards (DoLS)
While not directly linked to Winterbourne View, the 2014 decision in P v Cheshire West and Chester Council had a profound effect on how service users are treated when their care restricts their activities. In Cheshire West, the Supreme Court held that Mental Capacity Act provisions on DoLS apply to all people who lack capacity to make decisions about their care and residence who are under the responsibility of the state, are subject to continuous supervision and control, and lack the option to leave the care setting. This has led to considerably more applications to the Court of Protection to authorise such deprivations of liberty and further assessments for service providers to complete.
The next year the Law Commission began a consultation on proposals for a replacement to the DoLS scheme called "protective care" which would be wider in scope. The Law Commission has now released an interim statement confirming its position that "legislative change is the only satisfactory solution" and confirming that it will produce a final report and draft legislation by the end of the year.
It is beyond doubt that the quality of care has attracted considerably more attention in the last five years as a result of scandals such as Winterbourne View and Mid Staffs, and concerns such as the current funding crisis. This increased scrutiny, while putting increased pressure on service providers, can only be a good thing to protect those living in care and improving standards across the board. In addition, an ageing population and an increasing proportion of people with chronic care needs means that more and more people will receive residential care at some point in their lives. On the fifth anniversary of the original Panorama broadcast the families of the Winterbourne View residents publicised their concerns about slow progress since then; while we should still be horrified by what happened and concerned that there is still more to be done, the sector has at least changed for the better in the last give years.
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