Monday 16 February 2015

Sick and sanctioned

How do we best engage people with drug and alcohol problems but who seem unwilling to enter treatment?  The debate has been re-ignited again this weekend by a proposal by the Conservatives that, should they win the next election, Dame Carol Black will be asked to look at whether those on sickness benefits with drug, alcohol and obesity issues should have those benefits reduced if they refuse treatment.

A recent Freedom of Information request to the DWP indicates that there are about ninety thousand people claiming sickness benefits where drug and alcohol problems are their most significant issue; but it isn't clear how many of those are not engaged in treatment already.

As the Guardian in their coverage of the proposals makes clear, this isn't the first time these sorts of ideas have entered the political debate.  Last year saw similar ideas proposed in relation to those claimants with mental health problems though those have not resurfaced in this proposal.

The Guardian's report points out that DrugScope has been critical of previous moves to introduce benefit sanctions on people with drug and alcohol problems, both under this government and the previous one.

Indeed it has been pointed out to us that this government explicitly ruled out the approach they are now proposing, with Lord Freud telling the House of Lords:
First, it mandates claimants to do something, such as being tested for drugs, that is not directly about helping people to approach the labour market. That does not mean that entering treatment is not the right approach to help many claimants who are substance dependent to address their barriers to work, but-and this leads to my second reason-claimants enter treatment for a series of complex reasons, and whether or not they succeed also depends on a series of complex reasons. Forcing claimants to answer, for example, questions about possible drug use, requiring them to attend substance-related assessments about drug use and insisting that claimants enter a mandatory rehabilitation plan if they decline to enter treatment voluntarily would be asking them to do something a large proportion of them would not want to do. If we took the approach of the previous Government, we would create a high risk of those claimants immediately failing these requirements and having to be sanctioned.
Changes to the welfare system introduced in this Parliament (including the increased use of sanctions) on those already in treatment is an issue that our Voices from the Frontline project and recent State of the Sector report suggests has been very detrimental for some.  One service manager told us:
The welfare reform agenda has hit our service users very hard. The biggest issues are the length of time to process and change benefits, sanctions, capability assessments, appeals etc. People have been left without money for weeks. The demand for food parcels completely outstrips supply.
Another said:
These people are being sanctioned – benefit sanctions or their health benefits get stopped or something like their council tax benefit are stopped and then it’s a battle with the DWP to get their benefits back. There’s no doubt – and we do have to examine the figures this year – but our suicide rates are shooting up and the Board is very concerned. They’re getting more serious and untoward incident reports than they’ve ever had. It’s probably the highest ever volume, this year.
DrugScope has consistently argued that sanctions raise the risk that people will disengage from support services, potentially worsening their dependency and with additional impacts on their families and communities.  We have also argued that they would be against the requirement of informed consent, as set out in the NHS constitution which makes clear:
You have the right to accept or refuse treatment that is offered to you, and not to be given any physical examination or treatment unless you have given valid consent.
And reiterated by the current Chair of the Health Select Committee Dr Sarah Wollaston:

The UK Drug Policy Commission in a paper on employers’ readiness to recruit problem drug users looked for evidence that, even if the ethical barriers could be overcome, conditionality would be an effective policy option and said:

We were unable to find any convincing examples to demonstrate that making benefits conditional upon engagement with treatment would be effective at improving outcomes.
This is repeated in a JRF paper on welfare sanctions and conditionality in the UK which also pointed to evidence that existing sanctions are associated with the rise in the use of food banks and other material hardships and are:
associated with negative physical and mental health outcomes, increased stress and reduced emotional wellbeing.
So if coercion has the potential to damage the chances of treatment succeeding and sanctions may already be leading to those in treatment failing in their attempts to recover from their problems, what might be a more positive agenda for those on sickness benefits?
  • Concentrating on getting the basics right is likely be more effective as introducing new sanctions. We know that where Job Centre Plus and treatment providers work in close cooperation, really strong results can be achieved. For example, one London JCP district achieves more disclosure of substance misuse and also more claimants supported into employment than the other three combined.
  • Government should await the evaluation of the ESA healthcare professional led pilots; these might offer a clearer idea of what type of intervention and provider works best in engaging people with treatment and health interventions while avoiding most of the ethical problems referred to above.
Whatever the regime it will be important to consider the unintended consequences on the health and wellbeing of those involved.

As DrugScope highlighted on this blog only weeks ago some drug users are very vulnerable indeed and further barriers to effective engagement could increase health inequalities for this group.


  1. You state: We have also argued that they would be against the requirement of informed consent, as set out in the NHS constitution which makes clear:
    You have the right to accept or refuse treatment that is offered to you, and not to be given any physical examination or treatment unless you have given valid consent.

    This is incorrect. Drug and Alcohol services (along with sexual health services) are not classed as health services and protection is not offered under the NHS constitution

    1. Thanks for your comment.

      I've taken another look at the NHS constitution and it is pretty clear that it applies to local authority public health services, so I'm not sure why it wouldn't apply to drug and alcohol services.

      Indeed there's nothing in the Handbook to the NHS Constitution or the Public health supplement to the NHS Constitution which suggests it wouldn't apply to these services that I can see.

  2. In commissioning and providing services local authorities only have to have regard to the constitution. They are not bound by it - either in their commissioning or in their delegated provision. Its not mandatory and given the current state of the sector you find that in practice its meaningless.

  3. Can I suggest you read in a little more detail about not just the difference between "having regard to the nhs constitution" and being *bound* by it? You might also like to look at the different mechanisms available for organisations and individuals to utilise the NHS constitution to challenge decisions made by local authorities: there are none. There is no right to challenge or legal remedy.

  4. Hi Sara, thanks for those comments, they've made me go back to first principles.

    It seems to me that the body that would need to be bound by the rights set out in the NHS constitution is the DWP who will otherwise sanction drug and alcohol users on sickness benefits who are unwilling to be in treatment.

    In those circumstances the NHS constitution itself might not be the piece of paper you'd wave about in court, but the constitution is only a collection of existing laws. So the question will be whether the DWP is bound by the Act of Parliament that enshrines the right not to be coerced into treatment, or whether the way that the putative new sanctions regime is framed in a way that takes that right into account.

    However, if the regime we're discussing does come in (and isn't challenged by an individual being coerced into treatment) there may still be a role for the NHS constitution that occurs to me.

    A service (or employee in a service) might argue that providing treatment to a coerced patient is not within the spirit or letter of the NHS constitution.

    If that unhappy circumstance were to occur then we'd be back to your question of whether commissioners and service providers are bound by the constitution.

    The Handbook to the constitution suggests they might be. It says:

    "You have the right to make a claim for judicial review if you think you have been directly affected by an unlawful act or decision of an NHS body or local authority.”

    But, all that said, I don't doubt that should a government want to go down this route then it would take supreme efforts to stop them and the use of legal challenge may be an uncertain act of last resort.

  5. Nope, I still think you are onto a loser there. I don't see a challenge under the NHS constitution being successful.

    You say: "The Handbook to the constitution suggests they might be. It says:

    "You have the right to make a claim for judicial review if you think you have been directly affected by an unlawful act or decision of an NHS body or local authority.”

    A decision lying ostensibly outside the NHS constitution (which although made up of some different pieces of legislation, gives certain key rights to patients itself) would not be unlawful for a local authority as the services provided and commissioned by a local authority are not NHS services and are not bound by the constitution - or any of the other pieces of legislation which describe people's rights to healthcare treatment within the NHS. (As an aside MONITOR the competition regulator also has no jurisdiction over drug and alcohol commissioning - leaving those areas critical to effective treatment essentially unregulated). You would *potentially* have a chance if the provider you were being coerced into accepting treatment from was itself an NHS body. But even then I think it would be very difficult - and of course a lot of NHS bodies don't provide drug and alcohol services now - and many that do, do so through a subsidiary structure.

    Besides any of this, people are coerced into treatment all over the place now and it doesn't seem to recieve much of a challenge at all nowadays. Drug treatment is no longer about people accessing healthcare, it is about society doing thing to people to make them more palatable or containable - and all at the lowest possible price. Viewed in this light, the proposed DWP sanctions regime is simply an external body accessing the very same devices of compulsion and manipulation that the drug sector itself has used for many years.

  6. I'm happy to accept that I am at best a barrack room lawyer, and as such I'll leave whether the NHS constitution can be used as legal protection against the sort of proposal being made to proper lawyers. But I'm clearly not the only person that holds out some hope that there would be legal redress against coerced treatment, as Dr Wollaston's tweet suggests.

    As for regulation my understanding is that CQC are the regulator for the sector.