By Dr Dawn Cavanagh.
Rightful Lives and Stolen Lives work with many families who are subjected to ‘gagging orders’, court-ordered legal injunctions, that restrict their ability to speak out about inadequate care or abuse. These orders are often used by public bodies (both within health and social care) to avoid scrutiny and can prevent families from sharing experiences with the media, their MPs (and MSs in Wales), or other relevant parties, effectively silencing them.
Gagging orders are often accompanied by contact restrictions where families are banned from visiting or have visits heavily restricted by care providers, local authorities or Integrated Care Boards (Health boards in Wales) after complaining about negligent care or safeguarding issues. Public bodies may side with care providers to avoid the withdrawal of the ‘placement’ because ‘there is nowhere else for them to go’, leading to the use of contact restrictions against complaining families. It would be easy to fall into the trap of thinking that public bodies have little choice but to go down this route. But what they are doing is avoiding scrutiny. Commissioners, for example, have a duty to ensure high quality, person-centred care for people with learning disabilities and their guidance emphasises working with families of adults with learning disabilities in partnership to ensure this happens.
It is important to note that contact restrictions often come into effect after the person has been forcibly removed from the family home. This tends to happen during transition from child to adult services as young adults with learning disabilities often experience a significant decrease in support as funding criteria change. We also see it happening when the person with a learning disability has been unwell in hospital and the cost of post-hospital care means that the person is forced to move out of the family home. While transitions to independence can be positive, forced moves due to funding gaps rather than the person’s choice, or in their best interests, often violate human rights to private and family life (Article 8). In England councils have a legal duty under the Care Act (2014) (in Wales, under the Social Services and Wellbeing Act, 2014) to meet a person’s needs and funding constraints are not a justifiable excuse to provide inadequate care. When families try to prevent the move, it is at this point that we see them being taken to court. Gagging orders and contact restrictions are also imposed on families whose loved ones are detained in secure hospitals. These measures are used as a punitive abuse of power to restrict family involvement or prevent public exposure of hospital conditions and human rights abuses.
Families have a legal right to complain about poor care in the UK. They can raise concerns about NHS or social care services via provider complaint procedures, local authorities or regulators. These regulators also make it very clear that visiting rights are there. So, we fail to see how ‘putting out guidance’ will help them to be enforced as Care Minister Stephen Kinnock told ITV. The very issue with guidance is its lack of legal enforceability. Organisations can depart from it without violating the law, making it weak in driving consistent standards. If a body fails to follow non-statutory guidance, it is harder to hold them legally accountable compared to failing to follow statutory duties.
Changing the law to strengthen visting rights and stop care companies from imposing visiting bans would be a welcome move; however, that does not address families’ concerns regarding The Court of Protection, which can feel overwhelmingly weighted toward public bodies. We need to see significant legal shifts that aim to rebalance this power by making it easier for families to tell their stories and in the process increase accountability.
