Georgetown University Law Center Georgetown University Law Center

Scholarship @ GEORGETOWN LAW Scholarship @ GEORGETOWN LAW

1980

International Year of Disabled Persons: The Institution in England International Year of Disabled Persons: The Institution in England

and Wales and Wales

Lawrence O. Gostin Georgetown University Law Center, gostin@law.georgetown.edu

This paper can be downloaded free of charge from:

https://scholarship.law.georgetown.edu/facpub/1821

5 Amicus 24 (1980)

This open-access article is brought to you by the Georgetown Law Library. Posted with permission of the author. Follow this and additional works at: https://scholarship.law.georgetown.edu/facpub

Part of the Health Law and Policy Commons

The Institution InEngland and Wales:

Its Adventand

Its Demise

By Larry Gostin

Asylums first appeared in England in the19th century, the precursors to the institutions inNorth America. It is now recognized, however, in

Britain as in this country, that the fundamentalobjectives and quality of life offered within a

self-enclosed, segregated environment, aredetrimental to the well-being of the mentally

handicapped.'Unlike the U.S., though, Britain has chosento use a legislative approach to ensure the

closure of its institutions by 1990. A recent study,however, which has yet to be published, shows

that the target dates for establishing communityalternatives are not being met.

Larry Gostin examines these historicaldevelopments and reveals why the national policy

of deinstitutionalization is encountering strongopposition.

24 NATIONAL CENTER FOR LAW & THE HANDICAPPED

A notable characteristic of American federalismis that domestic policy has been substantially deter-mined by the courts. The judiciary has introduced itsown social morality to ensure reasonable access toservices for minority groups.

The concept of judicial policy making has foundno greater expression than in the field of mentalretardation where the service provided has beenlargely mandated by judges.

It would be improper to be over-critical ofjudicial intervention, particularly as it has come in thewake of chronic legislative and executive neglect ofthe needs of mentally retarded people. Neverthelessit is regrettable that important policy decisionswhich intimately affect the quality of life of mentallyretarded people have had to be taken within thenarrow context of litigation. The courts are limitedby the particular facts and issues raised in theimmediate case; they are only able to set minimalstandards based upon non-specific constitutionalprinciples which have little direct applicability tomentally retarded people; and they are ill-equippea toassure long term compliance with, and implementa-tion of, their judgments.

Indeed, the elements which comprise soundpolicy and enable adequate provision of services-planning, budgeting, building, operating and monitoring-are legislative functions, and comprehensiveinterference by the judiciary may prove ineffective.

A mental retardation service requires a fullrange of provision specifically adapted to meet theneeds of the individual. The broadbrush approach otconstitutional habilitation and less drastic meansprinciples are insufficiently sensitive to the individuaineeds of mentally retarded people to serve their longterm interests.

Constitutional guarantees have, properly,ushered mentally retarded people from the institutionto the community. Courts have also examined theconstitutional parameters of mandating effectivecommunity alternatives through affirmative action.However, the judiciary is impeded in its ability tofollow the mentally retarded citizen into the com-munity with a view to securing his welfare; this isparticularly so where the mentally retarded personostensibly consents to residence in a privately ownedfacility.2

It is important that the philosophy of the insti-tution should not find its way into the planningand development of community services. The legisla-ture should not place great emphasis on the deficitsin a person's intellectual capacity or handicappedstatus. By doing so, it may neglect the essentiallyhuman needs of mentally handicapped people by

subordinating them to perceived needs for custodyand protection.

It is a basic strength of the English law that itensures all citizens equal access to medicaltreatment', housing', education5, food and incomemaintenance6 Indeed, if the status of being handi-capped is relevant for any purpose it is to createaffirmative priorities under general welfarelegislation! The ineffectual nature of this essentiallegislative approach when compared to the UnitedStates is the difficulty of individual enforcement byway of administrative or judicial action?

The Advent of the Idiot AsylumIn 19th and early 20th century England it was

thought that life-long segregation from society wasthe preferred and caring response to mental defec-tiveness. "It was determined from the beginning,"according to the National Association for the Care ofthe Feeble Minded, "that only permanent care couldbe really efficacious in stemming the great evil offeebleness of mind in our country." This was "univer-sally regarded as the proper method of dealing withthe weak in intellect"? Institutions-or "colonies" asthey were referred to-were in the country, somedistance from centres of population and wereoperated as self-enclosed communities.

The specialised "idiot asylum" first developed inEngland in the latter half of the 19th century andfound official recognition (relating to registration, in-spection and admission) in the Idiots Act 1886. Idiotasylums, however, were not the predominantestablishment used for the segregation of mentallyhandicapped people.

Mentally handicapped people were dealt withnot by reason of their social disability but on theirpresumed association with poverty, insanity or delin-quency. In 1881, a return of idiots (i.e. mental defec-tives of any grade) in public institutions totalled29,452; and only 3 percent were in institutionsspecifically designed for them. The remainder werein workhouses, lunatic asylums and prisons.'o

By the mid 1920's the percentage of defectivesin specialised mental deficiency institutions hadincreased to only 10 percent; 25 percent were still inmental illness hospitals; and 39 percent were in PoorLaw Institutions." The Local Government Act 1929,which abolished the structure created by the PoorLaws, made possible the formal transfer of certainPoor Law institutions to mental deficiency authorities.

Legislative definitions relating to mentally handi-capped people also provided an insight into publicand professional attitudes. In the Lunacy Act 1890, a"lunatic" included "an idiot or person of unsound

mind". No distinction was made between the twoconditions. This was inappropriate even by contem-porary standards, for there had been wide recogni-tion of the differentiation in the two conditions formany years; indeed, the 1886 act itself had drawnthe distinction. The 1890 act represented a realisa-tion that mental defectives would reside in lunaticasylums for the foreseeable future due to insufficientspecialised accommodation.12

The Royal Commission on the Care of theFeeble-Minded deliberated between 1904-08. In itsreport"3 it came to the conclusion that heredity wasan important factor in mental deficiency, thatdefectives were often highly prolific, and that othersocial problems, notably delinquency, alcoholism andillegitimacy, were aggravated by the freedom of ac-tion of mental defectives within the community. Theirprincipal recommendation was the segregation ofdefectives "to protect them from the worse elementsof society" and from their own instinctual responses"because they were unfit to take part in the struggleof life." Remarkably, this was seen as a liberal pro-posal because it had implicitly rejected "geneticpurification" as a solution which was being put for-ward by the influential Eugenics Society founded in1907 and led by Sir Francis Galton.

The Mental Deficiency Act 1913 provided astructure for the protection of the mentally defective.It resisted measures for permanent segregation,however, by introducing various alternatives for con-trol through statutory guardianship, institutional careand licence from the institution. The act furtherplaced responsibility for the provision and main-tenance of institutions and for the provision of com-munity services for the mentally defective on localgovernment (then the County Borough Council andnow the Local Authority). The total responsibility oflocal government for servicing mentally handicappedpeople was to remain until the National HealthService Act 1948.

National Health Service ActThe National Health Service Act represented a

revolution in the provision of health care in Britishsociety. Access to the care was no longer to bedetermined on the basis of ability to pay but on theneed for treatment. Despite a previous statement tothe contrary by the Minister of Health14, it wasdecided to include psychiatry within the NHS. AWorking Party under the auspices of the predominatemedical societies in the country stressed in 1945 theneed for "treating psychiatry in all essential respectslike other branches of medicine"."5

AMICUS * JANUARYIFEBRUARY 1980 25

In the new National Health Service, localauthorities were to be given wide powers to providecomprehensive care and after-care in the communityand to this day have principal responsibility for thecare and habilitation of mentally handicapped peoplein the community. Hospitals, however, were to be -removed from the responsibility of local governmentand placed under regional hospital boards (nowRegional Health Authorities).

At that time, the accommodation in the formerpublic assistance institutions, which like IdiotAsylums, performed both social welfare and medicalfunctions, was divided between the new hospitalauthorities and the local authorities who retainedresponsibility for providing residential accommoda-tion for elderly people. There was no similar appor-tionment of accommodation in the mental deficiencyinstitutions, which all became "hospitals".

Hospitals continued to admit mentally handi-capped people who needed residential care on eithersocial or medical grounds. Indeed, if a mentallyhandicapped child needed only residential care, he orshe would be placed on the waiting list of a hospital.The child would be reared within a health systemattended by doctors and nurses among others. Peerrelationships were limited to those individuals withphysical and mental handicaps similar to, or moresevere than, their own.

The Royal Commission on the Law Relating toMental Illness and Mental Deficiency sat from1954-1957."1 The Mental Health Act 1959, which wasmodelled on the Royal Commission Report, wasgenerally acclaimed as being one of the mostenlightened pieces of social welfare legislation in thiscentury. It was largely responsible for the interna-tional trend toward informality and medical discretionin mental health care, and away from judiciallyordered civil commitment."

The Royal Commission report and subsequentlegislation solidified the classification of mentalhandicap as a medical condition. More importantly,the criteria for admission to a mental handicaphospital were to be largely medical in nature, withthe procedures principally in the hands of doctorsand the responsibility of the hospital delegated to aresponsible medical officer.

The Mental Health Act was the most recentpiece of legislation specifically sanctioning theadmission and treatment of mentally handicappedpeople in hospital. At the time the Royal Commissiondeliberated, there was limited understanding of theessentially developmental nature of mental handicapand of the predominant needs for education, trainingand socialisation. Whatever understanding there was

at the time was not reflected in the report of theCommission. There is no evidence from the terms ofthe Mental Health Act, or the parliamentary debateswhich preceded it, that detailed consideration wasgiven to the needs of mentally handicapped people;they were forced into a legislative straightjacketwhich really applied to the psychiatrically ill.

The placement of mentally handicapped peoplein large-scale institutions, then, was not a product ofa thoughtful social policy based upon contemporaryevidence of the effectiveness of hospitals or a beliefin their essential humanity. Rather, mentally handi-capped people in Britain found their way into institu-tions by historical accident and this unfortunate legacywas to be passed on to Europe and North America.

The Demise of the InstitutionThe 1970's ushered in a new philosophy of care

and humanity for mentally handicapped people in theUnited Kingdom. In 1971, the White Paper, BetterServices for the Mentally Handicapped, setout government policy and a 25 year plan whichsignalled the demise of the large scale residentialinstitution and, in its place, the establishment of acomprehensive structure of care in the community.

The government first enunciated general prin-ciples about the habilitation of mentally handicappedpeople: a family with a handicapped member has thesame needs for general welfare and social servicesas all families, together with special needs by reasonof the particular physical or mental handicap;mentally handicapped people should not besegregated from the general life of the local com-munity; each handicapped person needs stimulation,social training and education, and purposeful occupa-tion or employment to develop his maximum potentialcapacity and to exercise all the skills he or shepossesses, however limited; each mentally handi-capped person should, whenever possible, live withhis or her family; if it is necessary to leave home,alternative accommodation and care should be asnormal and as home-like as possible and should pro-vide sympathetic and constant human relationships;mentally handicapped people should receive com-prehensive and periodic assessment of their needsand the needs of their families and comprehensiveservices to meet those needs, including education,social and work training, day care and occupation orthe opportunity for fully remunerative employment,accommodation, advice, practical help and respitefrom care for the family, medical and nursing care,and income maintenance.

Each of the life needs of mentally handicappedpeople were assessed in detail in the White Paper.

26 NATIONAL CENTER FOR LAW & THE HANDICAPPED

Most noticeably, the proper role of hospitals wascarefully defined.

Department of Health and Social Securityfigures on reasons for admission have constantlyshown that substantial numbers of people enter men-tal handicap hospitals and other specialist facilitiesprimarily for domiciliary and social reasons." The in-stitution, therefore, has had a distinct 'hotel' or'asylum' function, providing lodgings for vulnerablepeople with no home to go to. Existing legislation hadthe effect of encouraging hospitals and local author-ities to adopt such an approach, in which fundamental'housing' needs were obscured by a need for care.

The White Paper stated unequivocally that, aslocal authority residential services develop, this func-tion of hospitals should cease. When a mentallyhandicapped person requires hospital treatment for aphysical illness, surgery or mental illness, he shouldnormally receive this in the appropriate departmentof a general or mental illness hospital.

Hospitals would also have a role to play inprevention, assessment, family counselling and dayservices. In-patient services would be limited tomentally handicapped people with multiple physicaldisability or behaviour disorder; these mentallyhandicapped people may have to remain in hospitalpermanently because they "require treatment ortraining under specialised medical supervision orconstant nursing care". There was widespreadagreement from health and social servicesauthorities on the need to hospitalise profoundly andmultiply handicapped people.

This "in-patient" function of hospitals, though,was revised by the government in subsequent policystatements. It devised detailed planning guides toshift the balance of care from hospitals to the com-munity within a projected period of twenty years. Itsought to reduce the number of in-patient beds byone-half over the projected period and to ban thefurther building of large hospitals. It planned acorresponding increase in community provision, in-cluding housing, foster arrangements and education.

The planning figures laid down in the WhitePaper are shown in Table 1 (P. 28). Methods for im-plementing needed changes, including research, stafftraining, coordination of services, building andarchitecture, and funding arrangements and prioritieswere discussed in detail in the White Paper. Thegovernment also announced it would evaluate thenew pattern of services and reassess its planningfigures in the future. That reassessement has nowbeen completed, although it is yet to be published. Adiscussion will follow.

Subsequent to the publication of the White Paper,mentally handicapped people were formallydesignated as a priority group for expenditure in thehealth and social services sector. The intended aimsof the government document on priorities were con-sonant with the White Paper: to ensure that mentallyhandicapped people have a satisfying environment(which should as far as possible be within the generalcommunity) and to provide education, social stimula-tion and purposeful occupation and employment todevelop and exercise skills to their full potential.2

. Despite the broad aims of government therewere still major deficiencies in implementing theplanned shift in the balance of care mandated in theWhite Paper. As a result, in February 1975, theSecretary of State for Health and Social Servicesannounced three new initiatives: (1) the establish-ment of a National Development Group for the Men-tally Handicapped to advise the government on prac-tical implementation and evaluation of the plannedpattern and delivery of services; (2) the establish-ment of a full-scale committee of enquiry into mentalhandicap nursing and care; and (3) the intention toestablish a National Development Team to offeradvice to individual authorities and others in the plan-ning and development of their own services withinthe context of national policy.

The Needs of a ProfoundlyHandicapped Child

The National Development Team has publisheddetailed practical advice on the transition to a com-munity based service for mentally handicappedpeople, including the most profoundly retarded andmultiply handicapped children.21 Particular attentionhas been given to profoundly retarded children livingon long-stay wards of mental handicap hospitals. Themedical, educational and social problems of thesechildren have appeared so intractable that they havenot in many respects been regarded as within thevaried fabric of humanity, but apart from it. The prin-ciple of care for these children should now be thatthey have "more in common with other childrenbecause of their childhood than they have withseverely mentally handicapped adults because oftheir common disability".2

The stated government objective is to ensurethat mentally handicapped children enjoy a childhoodas normal as possible. This means that they shouldhave access to the whole range of experiences andactivities available to other children, and thatartificial barriers to the enjoyment of such ex-periences imposed by the institutional structure

AMICUS * JANUARY/FEBRUARY 1980 27

Vay care or eaucation Torchildren under five 8 3,900 500 +

Education for children ofschool age:In the community-

(i) for children withsevere mental handi-cap living in thecommunity 56 27,400) - - -

(ii) for children coming 23,400by day from hospital 6 2,900) - - -

In hospitals-(iii) for in-patients 7 3,400 4,600 - - -

(iv) for day patients 6 2,900 200 - - -

Occupation and trainingfor adults:In the community-

(i) for adults living inthe community - - - 130 63,700 24,500

(ii) for adults comingby day from hospital - - - 20 9,800 100

In hospitals-(iii) for in-patients - - - 35 17,200 30,000+(iv) for day patients - - - 10 4,900 200+

Residential care in thecommunity (includingshort-stay):

(i) in local authority,voluntary or pri-vately owned resi-dential homes 10 4,900 1,800 60 29,400 4,300

(ii) foster homes, lodg-ings, etc. 2 1,000 100 15 7,400 550

Hospital treatment:(i) for in-patients 13 6,400 7,400# 55 27,000 52,100#(ii) for day patients 6 2,900 200 + 10 4,900 500 +

+ Estimated.# NHS beds allocated to mental handicap.

* Department of Health and Social Security and Welsh Office, Better Services for the Mentally Handicapped, Cmnd. 4683 (1971).

28 NATIONAL CENTER FOR LAW & THE HANDICAPPED

should be removed. Slowly, the government's solejustification for retaining the in-patient residentialfunction of mental handicap hospitals has beenwithering away.

In 1978 the National Development Group and aDepartment of Health and Social Security sponsoredstudy23 both cast still more serious doubts about thepropriety of long-term hospital care for handicappedchildren. The fundamental needs of children formothering, warmth, social interaction, attention andplay were being largely disregarded in hospitals. Theresearch indicated that institutionalised childrenreceived an average of five minutes mothering atten-tion (cuddling, touch, play and talking to) in a tenhour period and less physically attractive and ablechildren received far less attention.

Children were living in such physically and emo-tionally sterile environments that they sought occupa-tion from playing with the straps of wheelchairs,sucking their sleeves or playing with their own saliva.This was a form of institutional play and a means offilling time. Children also emulated each other'shabits, and stereotyped maladaptive behaviour waspassed from one generation of children to another.

Many children did not display the same peculiarbehaviour patterns during fully occupied hours, suchas when they were in school. The institutionalenvironment was causing children to feel, and tolearn, aloneness and isolation, deeply impeding theirdevelopment by keeping them devoid of humaninvolvement and communication.

Even the general medical care for whichchildren were ostensibly placed in hospital was wellbelow the standard of non-handicapped children inthe community. Practical examples included failureto remove operable cataracts to restore vision(because of management difficulties associated withthe newly found experience of sight), teeth extractedto prevent aggressive biting and basic dietarydiseases and insanitary conditions.24

It is important to observe that other basicresearch had established both the damage causedby institutions as well as the feasibility of alternativemodels of care. Studies comparing Down's syndromechildren at home and in institutions had found thehome-reared group to be superior in intellectual andsocial development. Other research pointed to thecapacity of families, given adequate support andguidance, to raise their mentally handicappedchildren at home, and to the problems produced byearly hospital admission.26 Where natural parentswere unable to cope, pioneering work in a project byDr. Barnardo showed that these children could beplaced in warm foster homes and integrated into

ordinary children's homes," while the Wessex projectdemonstrated the particular feasibility of locallybased residential care for the most severely handi-capped children and adults. 28

Mental Handicap Policy into the EightiesThe government has undertaken a comprehen-

sive review of policy and of the progress in im-plementing the initial White Paper objective of a fun-damental shift in the balance of care. The reviewwas commenced in 1978 and should be released indue course; therefore, the examination herein shouldnot be regarded as a definitive representation ofgovernment policy prior to the publication of thereview.

The White Paper set targets for 1991 forhospital places for adults and children. There hasbeen a marked difference in developments since1971 for each of these groups so they will be ex-amined and analysed separately.

The number of children in mental handicaphospitals has significantly declined since 1971 to wellbelow the level envisaged in the White Paper. (SeeTable 2.) It is difficult to assess the reasons for thereduction in the number of children in mental han-dicap hospitals. Certainly there has not been a cor-responding growth in the number of residentialplaces in the community for children. The WhitePaper, however, envisaged increased support tofamilies of mentally handicapped children which hasreduced the need for residential care.

The emphasis of both health and social serviceshas been increasingly on maintaining the childwithin his own family by providing practical help,counselling, income supplements and respite fromcare. A policy of providing substitute (foster oradoptive) homes was also envisaged in the WhitePaper and is reaffirmed in the current review.

This positive community support system is notthe only reason for the decline in the number ofchildren in hospital. Some hospitals have a policy ofnot admitting children under any circumstances,although this unilateral withdrawal of National HealthService places without ensuring by joint planning thatappropriate alternatives are available is againstnational policy.

The most important development of policy in thecurrent government review is a modified reversal ofits policy for future services for mentally handi-capped children: "The time has come to state une-quivocally that large hospitals do not provide afavourable environment for a child to grow up in."Despite this "unequivocal" statement, the govern-ment only altered the 1991 planning target to reflect

AMICUS * JANUARY/FEBRUARY 1980 29

the 1977 census in hospital care. It reserved its judg-ment as to whether mentally handicapped childrenshould ever be in hospital on a long-term basis.

The reduction in the number of hospital placesfor mentally handicapped adults has not been as en-couraging. (See Table 3.) The number of adults hasdecreased by over 600 a year since 1969 comparedwith a slight increase between 1963 and 1969. Thisfall, however, has not met White Paper targets despitemeeting the objectives set by the White Paper on theplanned rate of residential community care.

It is apparent that health and social servicesauthorities have concentrated more on preventing in-appropriate admissions than on discharging peopleinappropriately residing in hospitals. The governmentreview encouraged an acceleration of the dischargerate of mentally handicapped adults and set lowertarget figures for places in mental handicap hospitals.

In sum, there has been a significant shift in thebalance of care since the White Paper. However,there are still marked deficiencies in the provision ofa full community service for mentally handicappedpeople. Nearly one-third of the 130 local authoritieshave no residential places for children, and overall,they have only established one-third of the residentialcare planned for 1991. Over 40 percent of allresidential homes for adults are larger than the max-imum size of 25 recommended in the White Paper.

There are some 45,000 adults and 3,000children who still live in hospitals and, despite thegallons of paint and acres of furnishing poured intothese hospitals, recent enquiries" and the govern-ment's own National Development Team" suggestthat standards are once again falling. Many localauthorities have not heeded the government's plan-ning targets nor its insistence on mental handicap asa spending priority. In order to understand why thesegoals have not been met, it is necessary to examinethe obstacles to implementation of a full communityservice for mentally handicapped people.

The White Paper was written at a time ofeconomic expansion. Since then restraint in publicexpenditure has meant a reduction in real growth inthe health and social services sector. This has had aprofound affect on community services for mentallyhandicapped people despite it being designated as apriority.

Between 1974/75 and 1977/78 the identifiablemental handicap share of expenditure on health andpersonal social services remained virtually static; inthese two years the shares were 4.5 percent and 4.3percent respectively. These figures, however, con-ceal the important fact that the mental handicapshare of revenue expenditure on personal social ser-

vices has increased appreciably during the period ofrestraint enabling wider provision of community ser-vices. At the same time, their share in respect ofrevenue expenditure on health services and capitalexpenditure on health and social services has eitherbeen static or has been reduced.

These facts are most instructive in assessingthe future of mental handicap services in Englandand Wales. The current government is wholehearted-ly committed to severe public spending cuts in thefuture. It concedes, therefore, that "at least in themedium term, community care services may notdevelop at the rate needed to permit changes in thehospital service." It suggests that "the pace ofdischarge from hospital may slow down." "Theremight also be forced expenditures on outdated stockand a continuing need for large hospitals for longerthan had been expected."

This raises significant ethical and policy issueswhich the government has not addressed. First, therecent evidence showing a fall in the standards ofmental handicap hospitals is not surprising given thesharp decrease in capital and revenue expenditureon the health services. The peculiar nature of a largeVictorian institution is that reduction in the number ofpeople resident in them does not necessarily mean acorresponding reduction in the cost of operating theinstitution. The principal costs of heating, light andmaintaining the institution do not decrease substan-tially with a reduction in resident population.

Thus, to the extent that the governmentoperates dual or parallel systems of care (onepopulation segregated in outdated and very largeestablishments and the other integrated into thecommunity), it will have to provide ever-increasingexpenditure simply to maintain the existing quality oflife for mentally handicapped people. The ethicaldilemma is that if the government shows positivediscrimination in favour of community services byrestricting expenditure on the institution, it willseverely affect the quality of life of in-patients andthe morale of staff.

Indeed, both of these problems are occurring ata disquieting rate in many institutions. In a period offinancial restraint it is tempting to renew outdatedhospital facilities rather than embark upon newinitiatives within the community. The governmenthints that this may, in fact, be its approach in theearly 1980's. This would be a retrograde step ingovernment policy. It is, furthermore, a costly policyin the long term because it perpetuates the duality ofmental handicap services and commits almostlimitless funds to continue to maintain standardswithin badly deteriorating institutions.

30 NATIONAL CENTER FOR LAW & THE HANDICAPPED

The Royal Commission on the National HealthService recently recommended the abolition ofmental handicap hospitals which were "very isolated,in very bad repair or are obviously redundant due tomajor shifts of population"." It is certain that a'greatmany mental handicap hospitals would meet thesecriteria.

MIND has estimated that the potential revenuethat would be accrued from dismantling large mentalhandicap hospitals and selling the land would besufficient to provide mentally handicapped peoplewith a fundamentally higher quality of life within thecommunity. This is a politically difficult decision tomake, particularly because the financial rewards

AMICUS * JANUARY/FEBRUARY 1980 31

would be achieved only after a planned phasing outof remote institutions. It is also politically difficultbecause of the employment and retraining implica-tions represented by the demise of these institutions.

Britain does not have the same form offederalism as in the United States. Nevertheless,regional and local governments do have a certainamount of autonomy in the way they spend theirresources. Many local authorities have not givenmental handicap services the priority position recom-mended by the government. Furthermore, the govern-ment has rejected proposals to earmark funds foruse on mentally handicapped people in deference toits general policy of local spending autonomy.Instead, the government has stated that it will in-crease joint funding whereby grants are given tohealth and social services authorities to spend oncommon projects.

It is suggested that the need to ensure thatpriority is given to mentally handicapped peopleoutweighs the general desirability of local autonomy;national government should further consider thedesirability of designating funds for expenditure onmental handicap services.

One of the most serious problems associatedwith a massive shift in resources from hospital tocommunity care is that it would significantly affectthe employment of staff in mental handicap hospitals.Large hospitals which are built in isolated com-munities sometimes are the primary employers in thearea. Entire communities would, therefore, beadversely affected if the institution were closed.

Members of staff-particularly nurses whorepresent the backbone of the hospital service-perceive closure as a threat not only to their homeand community, but to their livelihood. Accordingly,health service unions have been in the forefront inBritain in resisting efforts nationally and locally todismantle large institutions. Indeed, there is somejustification for their perceived fear becausesuccessive governments have not developed policiesof retraining and assured re-employment which wouldinstill confidence and maintain morale.

The first government attempt to nationallyaddress the problem was reflected in the JayReport32 which made sweeping recommendations onthe future of the nursing profession in the field ofmental handicap. There are currently some 28,500direct residential staff to care for approximately60,800 mentally handicapped people in Britain.The Jay Committee recommended the approximatedoubling of this number. They also made comprehen-sive proposals about recruitment, staff training andorganisation and management. These proposals were

directed principally to care in the community forwhich a qualification under the auspices of a socialwork training body would be required. The sensitivityof staff is reflected in the fact that the proposalswere rejected summarily by health unions and pro-fessional bodies, while being generally acclaimed bymental handicap organisations.

There is also a more subtle, albeit under-standable, reason for resistance to governmentpolicy. Senior staff-and particularly consultantpsychiatrists-have come to regard the institution asrepresentative of their own status and authority. Thecontinuance of the institution is seen as a measureof the psychiatrists' self-worth and of the value of themedical profession itself in the field of mental handi-cap. Colloquially speaking, the practitioner views thehospital with a feeling of "ownership" and "turf",and he has come to protect it accordingly.

The FutureThe decision to care for mentally handicapped

people in large remote institutions was never takenon the basis of evidence of their effectiveness orfeelings for their humanity. Whether examined from aviewpoint of finances or efficacy, the continuedoperation of large institutions cannot be regarded asa rational government policy. Indeed, even themaintenance of parallel services for mentally handi-capped people is uneconomic.

It is ironic, then, that the employment needs andstatus of professionals, who are fully cognizant of thedevelopmental nature of mental handicap, should posesuch formidable obstacles to the success of currentgovernment policy. Partly, it is a matter of attitude andof the inevitable preservation of the status quo.

It is the responsibility of government to en-courage imaginative approaches to care and habilita-tion within the community, but, more importantly, thegovernment must develop sensible retraining pro-grammes, assist staff with rehousing and relocation,grant sufficient funding for high quality communityfacilities, and provide remuneration commensuratewith the value of the care provided by staff.

The legacy left by policies of segregation, andthe past association with criminality and immorality,leave any government with a heavy responsibility toensure that mentally handicapped people are in-tegrated into the community and provided withhumane care and effective habilitation.

Larry 0. Gostin is Legal Director of MIND, (National Associa-tion for Mental Health of Great Britain), and Western EuropeanEditor of the International Journal of Law and Psychiatry.

32 NATIONAL CENTER FOR LAW & THE HANDICAPPED

References and Notes

1. The Mental Health Act (England and Wales) 1959, s.4,defines mental disorder to include subnormality. Thegovernment has indicated that this term will be replaced inamended legislation by mental handicap. Department ofHealth and Social Security, A Review of the Mental HealthAct 1959 (1976); H.M. Government, Review of the MentalHealth Act 1959, Cmnd. 7320 (1978). See also Gostin, "TheMerger of Incompetency and Certification: The Illustrationof Unauthorised Medical Contact in the PsychiatricContext," 2 Int'l J. Law and Psychiatry 127-130 (1979). Men-tal deficiency used to be the statutory term in England andWales and still is in Scotland. Mental retardation is used inthe United States and by the World Health Organization.The term mental handicap is used in this article because itemphasizes that cognitive and social deficits are humandisabilities which should not be viewed as a condition whol-ly separate and apart from other handicapping conditions.Social policy in respect of any physical or mental disabilityshould be to prevent it whenever possible, to do everythingpossible to alleviate its severity and compensate for its ef-fects and to reduce physical and social barriers which im-pede full integration of handicapped people into ordinarycommunity life.

2. For an examination of the constitutional issues and difficultyof judicial enforcement of the rights of mentally retardedpeople In the community, see Gostin, "Current Legal Con-cepts on Mental Retardation in the United States: EmergingConstitutional Issues," in Tredgold's, Mental Retardation294 (Craft, M., ed., 12th ed., 1979).

3. It is the Secretary of State's duty under section 3 of the Na-tional Health Service Act 1977 to meet all reasonable re-quirements for the prevention, care and after-care of per-sons suffering from physical or mental illness.

4. The Housing Act 1957 requires local housing departmentsto meet needs for housing in their areas and, under theHousing Act 1974, they must provide a range of housing in-cluding single dwellings, bed sitters and hostels. The Hous-ing (Homeless Persons) Act 1977 imposes a duty on hous-ing departments to provide accommodation for homelesspeople with priority need. For a fuller examination of hous-ing legislation referable to mentally handicapped people,see Gostin, "The Law Relating to Mental Handicap inEngland and Wales," in Tredgold's, Mental Retardation 271,278-80 (Craft, M., ed., 12th ed., 1979).

5. The Education Act 1944 requires every local educationauthority to provide full-time education for children agedfive to 17 which is suited to their different ages, abilitiesand aptitudes. An additional duty is imposed to provideeducation by special methods appropriate for persons suf-fering from a mental or physical handicap. The Departmentof Education and Science issued a circular 15/70 whichstated that "no child within the age limits for education ...will be outside the scope of the educational system." Sec-tion 10 of the Education Act 1976 establishes the principlethat special education must be provided in ordinary schoolsunless it Is "impracticable", "incompatible with the provi-sion of efficient instruction in the schools", or "would in-volve unreasonable public expenditure". The provision willnot come into effect until a directive is given by theSecretary of State. See generally, Gostin, "The Right of aMentally Handicapped Child to Receive Education," Disabili-ty Rights Handbook for 1979: A Guide to Income Benefitsand Services 45 (1978). On the issue of education of men-tally handicapped children in ordinary schools see, SpecialEducation Needs - Report of the Committee of Enquiry intothe Education of Handicapped Children and Young People(The Warnock Committee), Cmnd. 7212 (1978).

6. See generally, Disability Rights Handbook for 1981: A Guideto Income Benefits and Services (1980).

7. See e.g. Housing (Homeless Persons) Act 1977 whichdesignates mentally handicapped people and their familiesas a priority for the provision of housing.

8. See L. Gostin and E. Rassaby, Representing the Mentally Illand Handicapped (in press).

9. Dendy Homes, appendix in C.P. Lapage, Feeble-Mindedness

in Children of School Age (1920).10. See K. Jones, A History of the Mental Health Services

183-85.11. Lewis, appendix in Report of Joint Committee on Mental

Deficiency (Wood Committee) (1929).12. The development of categorisations and definitions of men-

tal handicap in English legislation leading to the reform ofthe Mental Health Act In the 1980's is illuminating in its ownright and will be the subject of a separate article in a follow-ing issue of Amicus.

13. The Royal Commission on the Care of the Feeble-Minded(Radnor Commission) (1908).

14. Hansard, 15 April 1943.15. A Report on the Future Organisation of the Psychiatric

Services (1945).16. The Royal Commission on the Law Relating to Mental

Illness and Mental Deficiency.17. See generally, Gostin, "The Merger of Incompetency and

Certification: The Illustration of Unauthorised Medical Con-tact in the Psychiatric Context," 2 Int'l. J. Law andPsychiatry 127-130 (1979).

18. Department of Health and Social Security and Welsh Office,Better Services for the Mentally Handicapped, Cmnd. 4683(1971). (A White Paper is a statement of government policy.)

19. E.g., Department of Health and Social Security, In-patientstatistics from the mental health enquiry for England, 1975.Statistical and Research Report Series No. 17 (1978).

20. Department of Health and Social Security, Priorities forHealth and Personal Social Services in England: A Con-sultative Document (1976).

21. E.g., National Development Team for the Mentally Handi-capped, First Report: 1976-77 (1978); National DevelopmentTeam for the Mentally Handicapped, Second Report:1978-79 (1980). See also National Development Group forthe Mentally Handicapped, Mentally Handicapped Children:A Plan for Action (Pamphlet number 2, 1977).

22. The Report on Child Health Services: "Fit for the Future"(The Court Committee), Crnnd. 6684 (1976).

23. M. Oswin, Children Living in Long-Stay Hospitals, ResearchMonograph No. 5 (Spastics Int'l.) (1978).

24. These examples are from first hand observations in mentalhandicap hospitals. See also, MIND's Evidence to the RoyalCommission on the NHS With Regard to Services for Men-tally Handicapped People (1977).

25. See generally, Herr and Gostin, 'Volunteering' handi-capped children for institutions - a case for review." XXVIIOxford Medical School Gazette 86 (1975).

26. Gath A., Should retarded children be kept at home? Un-published paper read to the Association for ChildPsychology and Psychiatry; Bayley, M., Mental Handicapand Community Care: A Study of Mentally HandicappedPeople in Sheffield (1973).

27. Shearer, A., Fostering Mentally Handicapped Children(1974); Dr. Bernardo's N.W. Division, A Project to AssistFamilies with Mentally Handicapped Children in Chorley andDistrict (1974).

28. Kushlick, The Mentally Handicapped, in Positions,Movements and Directions in Health Services Research(Nuffield Provincial Hospitals Trust, 1974).

29. Department of Health and Social Security (DHSS). Report ofthe Committee of Inquiry into Allegations of Ill Treatment ofPatients and Other Irregularities at the Ely Hospital, Cardiff.Cmnd. No. 3975 (1969); DHSS, Report of the Committee ofInquiry into South Ockenden Hospital (1974); DHSS, Reportof the Farleigh Hospital Committee of Inquiry, Cmnd. 4557(1971); DHSS, Report of the Committee of Inquiry into Nor-mansfield Hospital, Cmnd. 7357 (1978).

30. National Development Group (NDG), Helping MentallyHandicapped People in Hospital, chapters 5 and 6 (1978),reproduced as NDG, Creating a Learning Environment(1978).

31. Report of the Royal Commission on the National HealthService, para. 10.60, Cmnd. 7615 (1979).

32. The Report of the Committee of Inquiry into MentalHandicap Nursing and Care (1979).

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