NSUN reviews the CQC’s ‘Monitoring the Mental Health Act’

Any mental health system and the law that governs it should guarantee that the rights of those treated by it are protected, respected and put into practice. 

New evidence from The Care Quality Commission reveals that for people experiencing severe mental distress, too often this isn’t the case.

In a year where the Mental Health Act, which governs how people are supposed to be treated and protected, is under review, according to the CQC some patients who are subject to the Mental Health Act continue to experience care that does not fully protect their rights or ensure their wellbeing. 

Being treated under the Mental Health Act at a time when you are experiencing intense distress is an experience that can make people feel vulnerable, unsafe and which can be confusing and disempowering.

The CQC report, Monitoring the Mental Health Act 2016-2017, published on 27th February highlights key concerns and areas (raised in previous years) where there has been limited or no improvement, such as:

  • No improvement in the recording in care plans of evidence of patient involvement, of the views of patients about their care, or of whether clinicians had considered the least restrictive options for care.
  • No reduction in the number of patients whose physical health had not been assessed through examination on admission.
  • No reduction in the number of records examined that showed that patients had not been informed of their legal rights on admission

Many NSUN members will currently or in the past have been subject to treatment covered by the Mental Health Act and the findings show that despite a mental health system talking a good fight on patient rights, too often people experiencing severe distress have their rights overlooked.

In the recent focus groups we facilitated, as part of the Independent Mental Health Act Service User and Carer Engagement phase, participants talked about their experiences of what worked and what didn’t work when sectioned under the Mental Health Act. Too many examples of violent and degrading experiences were shared, “… on Section 2 … they handled me really bad and I’d been arrested before and I’d never been treated that bad as a criminal”.

People talked about experiences that were retraumatising and not getting information about their rights. Group members felt that the current diagnostic framework that informs and underpins assessment and treatment under the Mental Health Act was rigid, stigmatising, depersonalising and overlooked the experiences and wishes of the individual.

Participants also expressed concerns about the over use of medication, high doses, errors, and the lack of choices, alternatives and information given to them by professionals.

Other concerns raised in the report include information and access to advocacy services (and their independence if commissioned by hospitals), physical health care for detained patients, insufficient attention to de-escalation and prevention rather than reaction to difficult behaviour, opportunity to have a debrief after a restrictive intervention and make an advance statement.

The report also refers to variations in the application of the Mental Health Act Code of Practice and the lack of training and awareness for staff on the 2015 revisions. The report acknowledges that the principles in the Code hold little power if not upheld in the law as in the MHA in Scotland.

Over the last 20 years there has been increasing use of the Mental Health Act (MHA) and the number of people detained in hospitals. Although bed numbers have fallen in recent years, the number of admissions and lengths of stay in hospital have not.

The headline detention figure of 45,864 new detentions this year is down 27.9 per cent from last year, but NHS Digital reports that this does not represent the true change.

The Mental Health Act Statistics, Annual Figures 2016/17 explains that due to the changes in the way statistics are sourced  and the shortfall in the number of providers that had completed the required data, 2016/17 figures are not directly comparable to previous years saying that ‘45,864 new detentions were recorded in 2016/17 and 4,966 new Community Treatment Orders (CTOs), but the overall national totals will be higher as not all providers submitted data.’

It is also thought that the levels of detentions in previous years were over stated due to double counting – caused by the recording of ‘transfers on section’ from one hospital to another as new ‘detentions on admission’.

NHS Digital estimates the actual trend in detentions between 2015/16 and 2016/17 as an increase of 2.0 per cent rather than a decrease of 27.9 per cent.

A report by the CQC, The Mental Health Act: The rise in the use of the MHA to detain people in England, published January 2018 looked at the causes for the rise in use of the Mental Health Act (MHA) to detain people.

It concluded that:

  • There is no single cause for the rise in rates of detention this decade. It is highly likely that a range of factors are at play both nationally and locally
  • The rise in part suggests a system under considerable pressure
  • There is no evidence that professionals are using the MHA to admit people who do not meet the criteria for detention
  • Action must be taken to address underlying problems – reform of mental health legislation on its own is unlikely to reduce the rate of detention

According to the report detention rates for the ‘Black or Black British’ population group are more than four times that for the White population group. Detention rates for the Black and minority ethnic (BME) category ‘any other Black background’, including Black European or Black American, are over 10 times the rate of the White population group.  

Participants in our focus groups spoke of being sent to distant high dependency units across the country where it was too difficult for friends and family to visit and people from black and minority ethnic communities continue to be treated differently under the Mental Health Act and by agencies such as the police. Participants were clear that ongoing institutional racism within the police and the NHS needed to be addressed and stopped.

Protecting patients’ rights and autonomy is a requirement set out in the MHA and Code of Practice. Services have a legal duty to provide patients, carers and relatives with information and opportunities to be consulted and involved in treatment. Patients should also be informed of their rights at the start of a detention or Community Treatment Order (CTO).

Sadly, as highlighted in previous reports, this can be reduced to ‘reading the patient their rights’, an unhelpful approach not in the spirit of helping people to understand their situation, their choices and to support shared decision making.

Generally, we feel that the CQC Mental Health Act Monitoring reports show that there is an improved approach to scrutiny, with more mention and emphasis on equality and rights.

However, the quality of care does not seem to be moving quickly enough in the right direction.

There needs to be more significant improvement in our fundamental rights; the right to be involved, to be informed, to have our needs met and receive the least restrictive options for care.

It’s worrying that we can’t be guaranteed that the letter of the law in the current Act is followed, let alone any incarnation of the Act following the Independent Mental Health Act review.

Sarah Yiannoullou

Managing Director