The lessons from Winterbourne View

What are the lessons for providers, commissioners and regulators from the Winterbourne View case? Ben Troke and Chris Webb-Jenkins look at the findings of the serious case review.

The shocking facts of the abuse at Winterbourne View, hidden for so long, are now well known, and some of the images from the Panorama documentary will haunt us for years.

At the time of writing, 11 former members of staff at the private hospital for adults with learning disabilities and autism await sentencing for offences under the Mental Health Act of ill treatment of some of the most vulnerable people in society.

Reviews have been published already by the Department of Health, Strategic Health Authority, Mencap and, most recently, a serious case review by the South Gloucestershire Safeguarding Adults Board, and there is no doubt more analysis and soul searching to come. The Francis Inquiry on the scandals at Mid Staffordshire Hospital, expected in October, will cover similar issues, but it is not too soon to think about the legal issues, and the lessons to be learnt. What are the legal safeguards that let these victims down, and why did they fail?

We must not forget that the offences committed against the most vulnerable, such as the elderly with dementia, or adults with learning disability, would also be offences if committed against any one of us. The issue, sometimes, is about the hidden nature of these crimes, where the BBC eventually shone a light, and so the protection of whistleblowers is paramount.

The Mental Capacity Act provides a framework to support people to manage their own decisions, and to protect them if they cannot, with a process for determining their best interests, and a new criminal offence in s44 of wilful neglect or ill treatment of someone who lacks capacity, equivalent to the MHA s127 used for the Winterbourne View defendants.

The Serious Case Review, (SCR), is very critical of a lack of awareness of the MCA, and its adjunct the Deprivation of Liberty Safeguards.The recent CQC report on the implementation of the MCA and DOLS comments, with a threatening tone, that "the safeguards are no longer new and both providers and supervisory bodies have had ample time to train staff and develop policies". Health and social care providers across the public and private sector will want to know that staff are fully trained in the law and how to implement it in practice.

Even setting aside any direct issues of individual criminal or regulatory liability, or ‘corporate’ liability for compensation, and legal costs, the damage done to the reputation of the organisation involved, in this case, Castlebeck Ltd, can be overwhelming, and business critical. In a world of empowered consumers choosing their providers of health and social care, the NHS or local authority services competing for patients and service users will not be immune to such damage either.

And this highlights another crucial issue. The failure of commissioners to monitor the quality of service at Winterbourne View is strongly criticised in the SCR. No-one says that commissioning vital health and social care is easy for PCTs at the moment, but there will be concerns that it will not be made any easier by passing the task on to new Clinical Commissioning Groups, while the promotion of Any Qualified Provider (AQP) will mean more competition among more commercial and voluntary sector providers. It may prove to be difficult to ensure that competition (intended to be on quality, not price) does not come at the cost of cutting corners that might affect patient safety.

Equally, the rising expectations and demand, in the context of austerity for years to come, will make it more of a challenge than ever even to stand still in terms of patient safety and quality. It is telling, perhaps, that the scandal at Winterbourne View occurred in Learning Disability services, which are sometimes thought of as disproportionately well funded when compared with care of the elderly, for example.

After decades of criticism of the patchwork and piecemeal nature of the law on social care and safeguarding for adults, a draft Care and Support Bill was published in July, and is open for consultation until 19 October 2012. It will sweep away the current system for access and funding of social care, much of which still has roots in the Victorian Poor Law, and will also, for the first time, put adult safeguarding on a statutory basis, with Safeguarding Adults Boards on a par with the system already in place for children.

It seems likely that simplification of the complex and fragmented law in this area can only help, but it would be brave to claim that such a reform alone can prevent the "arbitrary violence and abuse", described at Winterbourne View by the SCR. Sadly, there will always be another scandal, and another report that says "never again". In the meantime, pressure and scrutiny will mount on both commissioners and providers of care, and good staff and good training will be vital to survive in an increasingly competitive marketplace.

Ben Troke and Chris Webb-Jenkins are partners at Browne Jacobson. Ben can be contacted on 0115 976 6263 or by This email address is being protected from spambots. You need JavaScript enabled to view it.. Chris can be reached on 0115 976 6175 or by This email address is being protected from spambots. You need JavaScript enabled to view it..