Human Rights and the Government’s response to COVID-19: The detention of young people who are autistic and/or have learning disabilities Contents

2Visits and the right to family life

The impact of visiting restrictions on young people

Adele Green, mother of Eddie, a young man with a learning disability:

“When the lockdown came, it was quite quick in the sense that the hospital placed a blanket ban on anybody going in and anybody going out. Within a week, with the fear and anxiety, he tried to take his own life, which really blew us away. We were mortified. [ … ]

We last visited on 14 March. As part of the discharge process, we met in the community and experienced a meal together, which we had not done for over 12 months, so it was really lovely. Lockdown commenced in the following week, and we have not been able to visit since.”4

Andrea Attree, mother of Dannielle, an autistic young woman:

Andrea told us that she has been permitted to visit her daughter, but only once, on her birthday. This has been extremely distressing for Dannielle:

“We had that visit and afterwards she was an absolute mess. I have not been able to visit since. I have continued to point out that this is having a detrimental effect on her long-term health, with an escalation in her anxiety-driven behaviour. She is expressing herself in ways that I have never seen before. It is absolutely devastating. She is ligaturing regularly. She is self-harming to extremes, banging her head. She has smashed all her knuckles on her hand. We had a CTR [Care and Treatment Review] last week and today I had an email to say I can visit her at the weekend, so there has been a breakthrough.”5

The right to family life

5.Article 8 of the European Convention on Human Rights (ECHR) provides a right to respect for private and family life. When a young person who is autistic and/or has a learning disability is detained, their rights under Article 8 ECHR and those of their family are engaged. Detention (including detention to assess or treat mental ill health) entails inherent limitations on private and family life. However, the European Court of Human Rights has held that it is an essential part of a detainee’s right to respect for family life that the authorities enable detainees or, if need be, assist detainees in maintaining contact with close family.6 It has also made clear that blanket bans on visiting are unlawful.7

6.The additional distress and anxiety caused to young people by not being able exercise their right to family life is putting other human rights more at risk too. It is leading to an increase in the use of forcible restraint and solitary confinement, potentially engaging the right to freedom from inhuman and degrading treatment (Article 3 ECHR). In turn this is disrupting plans to discharge them to safe homes in the community prolonging inappropriate and harmful detention, contrary to Article 5 ECHR which provides a right to liberty and security of person.

NHS England guidance on visiting and the Code of Practice to the Mental Health Act 1983

7.On 8 April, NHS England (NHSE) issued guidance on hospital visiting, which applied to all hospitals, not just mental health hospitals [the “8 April guidance”]. This stated that visiting was suspended but set out a limited number of exceptional circumstances where one visitor, an immediate family member or carer, was permitted to visit. This included if: “you are supporting someone with a mental health issue such as dementia, a learning disability or autism, where not being present would cause the patient to be distressed.”8 Read properly, this guidance did not justify blanket bans upon visitors in mental health settings.

8.On 5 June 2020 NHSE issued new guidance lifting the national limitation on visiting imposed under the 8 April guidance [“the 5 June guidance”].9 That guidance specifically refers to mental health, learning disability and autism inpatient settings. It advises that visiting shall instead be subject to local discretion by trusts and other NHS bodies. Even if trusts could have interpreted the 8 April guidance as justifying blanket bans upon visitors in the mental health context, the 5 June guidance removes any room for doubt that such blanket bans are not permitted.

9.Both sets of guidance need to be read alongside the Mental Health Act Code of Practice, which makes clear the importance of visiting to patients and the inappropriateness of blanket bans.10 NHS England and the Department of Health and Social Care published on 19 May legal guidance which includes a section that, in effect, amounts to a modification of the Code of Practice11 to reflect the impact of the pandemic. Notwithstanding that impact, the guidance makes clear that decisions on limiting visits should be made on an individual basis and based upon active risk assessments, rather than blanket bans. In other words, the guidance makes clear - and we agree - that the Department considers that there are no cogent reasons for departing from the position on visiting set down in the Code of Practice. It therefore appears to us that any mental health hospital which maintains a blanket ban on visitors is not only breaching the European Convention on Human Rights, but it is also acting unlawfully in failing to comply with the statutory Code without cogent reasons for so doing.

10.Given the failure of some institutions to comply with earlier guidance, we remain concerned that some young people may continue to be denied visits unlawfully. Furthermore, if nationwide visiting restrictions are brought back at some point in the future, we fear that this could result in the widespread re-imposition of unlawful blanket visiting bans which fail to take account of the individual circumstances of young people in mental health settings.

Alternative means of contact

11.In both Eddie and Dannielle’s case, limited access to alternative means of family contact was available, but their mothers told us that online communication, for example through Skype or Facetime, did not work well for their children. For example, Adele told us:

“We have been offered the Skype facility, which in some ways is helpful, but he gets upset post Skype. [ … ] The technology is not the best. Sometimes there is no sound; sometimes there is no picture, which is frustrating for me. He has waited so long just to see another person, so I think it is incredibly frustrating for him. It is not enough.”12


12.Blanket visiting bans are contrary to the rights of both patients and their families under the European Convention on Human Rights, the Code of Practice to the Mental Health Act 1983 and NHS England guidance. Failure to adopt an individualised approach to the safety of visits will breach the Article 8 rights of both the patients and their families.

13.NHS England must write immediately to all hospitals, including private ones in which it commissions placements, stating that they must (whatever nationwide restrictions may be re-imposed in future), allow families to visit their loved ones, unless a risk assessment has been carried out relating to the individual’s circumstances which demonstrates that there are clear reasons specific to the individual’s circumstances why it would not be safe to do so. Where a mental health hospital does identify cogent reasons for prohibiting visits to a particular individual, the reasons for this decision must be provided in writing both to the patient and to their family. Such decisions must be reviewed on a regular basis, at least every 48 hours.

4 Q28 [Adele Green]

5 Q28 [Andrea Attree]

6 Khoroshenko v Russia [2015] ECHR 637 at paragraph 106.

7 Khoroshenko v Russia [2015] ECHR 637 at paragraph 126, citing Trosin v Ukraine [2012] ECHR Application No. 39758/05. See also Munjaz v United Kingdom [2012] ECHR 1704 at paragraph 79 on the importance for mental health patients of any restrictions on rights other than the right to liberty being justified on an individual basis.

8 NHS England Visitor Guidance 8 April 2020

10 Mental Health Act Code of Practice (for England), paragraphs 8.5 and 11.4. Equivalent provisions appear in the Code of Practice for Wales.

11 Annex D to the updated NHS England legal guidance for mental health, learning disability and autism and specialised commissioning services 19 May 2020.

12 Q28 [Adele Green]

Published: 12 June 2020