In October 2018, the Secretary of State for Health and Social Care asked the Care Quality Commission (CQC) to review restraint, seclusion and segregation for people in social care who are autistic, with a learning difficulty and/or with a mental health condition. In response, the CQC published the ‘Out of Sight – Who Cares?’ report in October 2020. The report was intended to highlight unacceptable restrictive practices and incite changes to improve the lives of those with mental ill-health, autism and/or learning difficulties. The CQC found that the 66 people they met within segregation were wholly let down by the health and care system in the restrictive interventions used. Through looking at a wide range of data, people’s experience of person-centred care, hospital care and support in communities, the report derived 17 recommendations and other developments to improve the lives of those under this care.
The latest ‘Out of Sight – Who Cares?’ progress report, dated March 2022, has now been published by the CQC. It confirms that out of the initial 17 recommendations, 13 have not yet been achieved, and the remaining four have only partly been achieved. The recommendations that have not been achieved relate to people not having the correct facilities, support, and services. Additionally, recommendations have not been achieved regarding reporting and reducing restrictive interventions and holding regular independent reviews to render providers and commissioners accountable. Those recommendations that the CQC considers are partly achieved relate to improving CQC service regulation, recording data, peoples experience of person-centred care and the commissioners’ regular oversight of those who experience restrictive interventions.
It is clear that development and change has been much slower to date than originally envisaged. Some progress has been made in the form of investment from the Department of Health and Social Care, NHS England, and NHS Improvement into projects to support people to come out of long-term segregations. Funding has been allocated to increase community support. Additionally, the Department for Education is considering recent recommendations on restraint from the Equality and Human Rights Commission (published in June 2021), which include the need for clear definitions of restrictive practices such as the use of restraint, segregation and seclusion in education settings and children’s services.
The March 2022 progress report states that the responsibility for progress and governance of change lies with the Department of Health and Social Care ‘Building the Right Support’ delivery board, a national plan set up to provide improved support to people with autism or a learning disability. It states that the ‘Building the Right Support’ delivery board is responsible for holding members accountable and delivering the recommendations. The CQC also invite the Department of Health and Social Care and partners to clarify how the recommendations relating to services for people with mental ill-health will progress. It can be seen that, although there is a clear consensus among the government and the CQC that these elements of care must be changed, it is unclear when and how legislative reform into the regulation of such unacceptable practices will materialise.
If you are a provider of care for people who are autistic, with a learning difficulty and/or with a mental health condition, work with any such providers or are considering venturing into this area, it is vital that you protect your interests in the face of any changes in the law which would affect your business. Lawyers within CMS’ regulatory team regularly advise on compliance with health and social care regulatory frameworks and can assist you as to any changes you will need to make to ensure compliance with any new legislative provisions.
Co-authored by Heather Flaherty, Solicitor Apprentice at CMS.