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

5Inappropriate detention and failure to discharge

Inappropriate and harmful detention

35.The 2019 report concluded that many young people who are autistic and/or have a learning disability are being detained inappropriately and in breach of their human rights. Their detention, without access to appropriate treatment, was found to risk violating their Article 5 right to liberty and security. In some cases, it may even reach the threshold of degrading treatment contrary to Article 3. The lack of access to appropriate treatment for young people in detention continues during the pandemic.27

36.The experience of being detained at this time is also increasing the harm that detention is causing to young people. Adele told us that because there were other patients on Eddie’s ward who had the virus, he has been unable to leave his room for seven and a half weeks. This, coupled with increased levels of agency staffing due to absences, has been extremely difficult for him to cope with, leading to an increase in medication, restraint, seclusion and self-harm. In Dannielle’s case, Andrea reported to us that even her daughter’s basic needs are not always being met. She is left for days in the same clothes and some days she does not eat as she is not given appropriate food.28

37.Young people are also now at an additional risk of harm in hospital: that of contracting Covid-19. The European Court of Human Rights has found that states are under a positive obligation pursuant to Article 2 to take appropriate steps to safeguard the lives of those within its jurisdiction in circumstances where their right to life may be at stake,29 including in the context of healthcare provision.30 For a positive obligation under Article 2 to arise, it must be established that the authorities knew or ought to have known at the time of the existence of a real and immediate risk to the life of an identified individual or individuals. This test is clearly met in the context of the current pandemic. Adele told us that she was worried that Eddie was not safe from infection in the hospital, where there are a number of people who have the virus. The hospital has a shortage of personal protective equipment (‘PPE’).31

38.We are also concerned to hear from both Adele and Andrea that their children are increasingly self-harming in response to the current restrictive regimes. Where individuals are in mental health detention, authorities are required to demonstrate special care in guaranteeing such conditions as correspond to the person’s special needs resulting from his or her disability or condition, as an aspect of their obligation to protect their right to life.32 We are concerned that, at present, mental health hospitals are not merely failing to protect these young people from self-harm but are in fact increasing the risk to their lives from such self-harm.

Discharges during the pandemic

39.Even before the onset of Covid-19, progress was still not being made quickly enough to discharge young people, with an unacceptable variation in discharge rates across the country. The latest figures from April 2020 show that 595 children and young people under the age of 25 remain in detention in specialist inpatient units, down from 665 in April 2019.33

40.Now, there is an additional imperative to get people out of inappropriate detention quickly—to prevent them becoming infected with the virus in settings where social distancing is hard to maintain. Ray James from NHSE told us that “there was a significant increase in the rate at which people were being discharged from hospital, from specialist in-patient settings, at the beginning of the Covid outbreak.” However, we heard rather different evidence from Adele and Andrea, who told us that that plans for Eddie and Dannielle to be discharged had been disrupted by the pandemic (see box below). A common and significant challenge which has hampered discharge plans has been a reduction in the number of skilled support workers available to support young people in the community.34

Experiences of delayed discharge due to the pandemic

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

“[Eddie] was actually about to start the discharge process back to his local community. There is quite a distance from where we live to where we visit, so that required some in-depth planning. He had a care provider and a bed in a type of sheltered accommodation ready and waiting. We were just about to start that lengthy transition. Unfortunately, that is when the lockdown started for us and everything since has stopped.”35

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

“At the moment [Dannielle] is in seclusion, not too far from us. Her previous providers were deemed unsafe by a [Care and Treatment Review], so she was moved quite quickly, back into a more local bespoke environment. There was nowhere for her to go. She is there and awaiting specialist treatment. Our local authority has let us down catastrophically. We missed a window of opportunity for a specialist bed in a specialist unit, so we are now desperately looking up and down the country for somewhere to create a bespoke package for her. Covid-19 has put a lot of obstacles in the way.”36


41.Now, more than ever, rapidly progressing the discharge of young people to safe homes in the community must be a top priority for the Government. The recommendations from the Committee’s 2019 report must be implemented in full. In particular, legislation must be introduced to ensure the availability of sufficient community-based services. The required amendments to the Mental Health Act 1983 to prevent inappropriate detention, must not be delayed.

27 Q28 [Adele Green]

28 Q28 [Andrea Attree]

29 Centre for Legal Resources on behalf of Valentin Câmpeanu v. Romania [2014] ECHR (Application no. 47848/08)

30 Calvelli and Ciglio v. Italy [2002] ECHR Application No. 32967/96; Vo v. France [2004] ECHR (Application No. 53924/00)

31 Q28 [Adele Green]

32 Fernandes de Oliveira v Portugal [2019] ECHR 106 at paragraph 113.

33 NHS Digital, Learning Disability Services Statistics, Learning Disability Services Monthly Statistics - (AT: April 2020, MHSDS: February 2020 Final), 21 May 2020

34 Q31 [Ray James]

35 Q28 [Adele Green

36 Q28 [Andrea Attree]

Published: 12 June 2020