- guardian.co.uk, Wednesday December 17 2003 02.05 GMT
- The Guardian, Wednesday December 17 2003
A tall, handsome man is frogmarched down a narrow corridor. His contorted body signals acute distress. He is grimacing and has his chin resting on his chest. He has every reason to feel vulnerable: he has learning difficulties; he is naked and incontinent; and he is being forced along at mop-point past laughing care workers and bemused and sympathetic residents.
This was a monstrous assault on his dignity. It was not an assault in the legal sense. But it should be.
Thousands of incidents like this take place on a daily basis in our care homes, in circumstances where the victims are powerless to object or seek redress. These go unrecognised as assaults because the police, care standards regulators and social services refuse to see them as individual failings on the part of care staff - if they see them as failings at all.
The law fails to take account of the most prevalent kinds of abuse in the care sector: namely, bullying, neglect, humiliation, and the infliction of petty indignity. If it happened in prison or an army camp, it would cause scandal. But in care homes it provokes, on the whole, indifference.
That indifference has convinced me that there is an urgent need for a specific law of neglect that targets care home staff and establishments that are guilty of neglect, abuse and poor standards of treatment.
Existing law should be sufficient to bring the perpetrators of these degrading acts to court - for example, the Offences Against the Person Act 1861, which has, in rare cases, even interpreted verbal abuse as assault. But the law does not, in practice, protect from neglect and psychological assault the people who need it most: vulnerable older people, both in care homes and in their own homes. The European Convention on Human Rights may establish some legal protection for the vulnerable, but it will take a while to percolate through - and hundreds of thousands will be abused before then, unless something is done now.
Jean Collins, who runs the legal reform charity for the learning disabled, Values Into Action, agrees that many assaults are not prosecuted. "Action needs to be taken to sort it out," she says. "It may be a simple extension of old legislation or a new, specific care home act - but something needs to be done".
The past three months have seen the Commission for Health Improvement publish a harrowing report on the psychological abuse of frail older people in a Manchester hospital. We have seen a Panorama report into routine abuse within domiciliary care, and my own team produced an undercover report, Who Cares for Granny?, which was broadcast on Channel Five. This Sunday, we have another report on care failings in a home for people with learning disabilities.
My personal experience and work has also convinced me that a new law is the only answer. In the past few years, I have got to know the sector well. I have been made despondent by what my team and I have witnessed in various care home investigations, and by how some of the authorities have responded.
In my first care home investigation, at the Brompton Care Home in Kent, I witnessed incidents where residents were kicked in the head, shouted at, assaulted, and threatened with fire extinguishers. One resident was pulled out of her chair then pushed to the floor. She was held down and kicked in the head. The assailants were a care worker and a senior manager. The victim didn't complain to the police; she didn't walk into a police station, because she couldn't. She couldn't even tell her family.
Our evidence caused the home to be closed down by the local authority. My opinion is that this kind of assault - and the inadequate complaints process - is not uncommon, and reflects a culture of neglect at the heart of Britain's care industry.
What was doubly shocking was the vitriolic attack by Kent police and Medway social services on myself and the BBC in the wake of our report. After libel actions launched by me, both bodies apologised and have agreed to change their practises. Legal costs were estimated to be in the region of £750,000. We handed our damages to three charities for the learning disabled.
Charities, managers, workers and whistleblowers have told me similar stories, of how the messenger of unwelcome news is attacked, and the message ignored - very aggressively - by those who are reluctant to deal with the chaos and fallout from home closures when abuse and neglect are exposed. Complaints are often received with irritation because they reflect badly on the inspection authorities.
Part of the problem is that the care sector is so interdependent and incestuous. Unhealthy friendships exist between inspectors of homes and home owners and managers - a relationship that is not conducive to aggressive, inquisitorial inspections. Rarely does inspection go beyond the fixtures and fittings of a home and delve into its culture - the heart of any care facility. Often, ex-social workers run care homes, while their former colleagues work for the National Care Standards Commission (NCSC) or the care purchasers in social services.
It is of no help that this sector is so politically correct that direct criticism is practically frowned upon; it's a surreal world where the "school report" every year says "hard working and well intentioned", and where every failing must be considered only in a forgiving context and wrapped in the cotton wool of inaction and understanding. Every major flaw, it often seems, is blamed on lack of resources - rather than lack of imagination, kindness, humanity or competence.
When my younger brother, Tadhg, went undercover for me in a home on the south coast, he came across an old man who was forced to eat his meal "while swimming in shit". He said to Tadhg: "I'm not the complaining type, but it's not right". When Tadhg intervened with management, he was told in no uncertain terms that this was the way things were done around here, and that our elderly friend would have to wait.
This is not about resources or training, it is about good manners and respect. It needs no resources to know that it was wrong, and yet it was in a home that was run by a major corporate provider.
The so-called "care" sector is failing, and these failings are not just about cash and training, but about simple humanity. They are about nurses who leave bed sores untouched, untended for days; senior workers who force the elderly to eat their meals while sitting in faeces; staff who provoke and shout at people with learning disabilities, and restrain clients unnecessarily.
In the absence of appropriate legislation, we come to rely on organisations such as the NCSC to identify and punish poor and neglectful care and to help victims seek redress. But how effective is it? Not very, on the evidence of one recent case that my team were involved in. Tadgh, working undercover, discovered that a timid, frail woman had not had her bed sore dressings changed for four days. He knew this because they were caked in dried faeces. He made a complaint to the NCSC, which upheld it.
When the old woman died some time after, the NCSC did not think to inform this woman's relatives about the neglect she suffered. Neither did it tell any other authorities to see if this neglect played a part in her demise. The home is still operating and the incident took place while the home was under weekly inspections from the NCSC. This rocks my confidence in the NCSC as a safety net.
Failing homes are kept alive by the NCSC, which has yet to learn how or when or why to pull the plug. Admittedly, the inspection service has undergone constant change and restructuring in recent times, which has left it with low morale. Created only in April 2002, it is now being scrapped and its duties absorbed into the new Commission for Social Care Inspection, or CSCI, in April 2004. But it remains strangely ineffective... well-meaning but weak and inconsistent. It has problems handling its existing workload. Of course, there are areas where NCSC has performed well, but inspectors themselves admit that their performance is patchy.
CSCI is the future, but unless it determinedly disassociates itself from previous passivity, then little will change. An "acceptable" level of neglect and malpractice has seemingly been tolerated as part of the business model in the care industry. CSCI must object to that and not seek any comfort in the fact that things are at least better than before.
But a proactive CSCI does not remove the need for a specific care home assault law that would explicitly recognise that deprivation of social contact, the denial of food, medicine and care, and the infliction of petty humiliations and degradations can constitute abuse and should be liable to prosecution. Where someone is unnecessarily restrained by care workers, those workers should be prosecuted for assault - not have allowances made for stress and long days, as the Kent police did in the case of the five Brompton Care Home assaults.
Such legislation would be to remind care workers of their responsibilities to carry out their duties in the full knowledge that sins of commission and omission that amount to neglect and abuse are unlawful. It would eliminate a huge percentage of the thoughtless and banal carelessness that causes genuine pain and that adds up to real assaults on individuals' wellbeing and dignity. The cumulative effect of many of these non-physical assaults is to destroy lives.
It's time to concentrate the minds of carers and the care industry. It's time to stop blaming policies - and start blaming people.
· MacIntyre UK Undercover: Who Cares for Gary? is on Channel Five on Sunday, December 21, at 9pm. One of the MacIntyre team has written a personal account of weeks spent undercover as a care worker at a home for elderly people. Read it at SocietyGuardian.co.uk/longtermcare
