On 6 February 2020, the Care Quality Commission (CQC) published their monitoring report on the use of the Mental Health Act 1983 in 2018/19.

Although they note some areas of improvement, in general the report is a picture of frustration over the difference between expectations of what should be achieved for those subject to the MHA, and the more challenging reality. The overall message which comes across in the starkly phrased foreword from the Deputy Chief Inspector is set out in no uncertain terms on the website overview: “this is still not good enough”. Interestingly the CQC do not exempt themselves from that assessment, noting the reviews commissioned to improve their own regulation.

There are 5 key areas of concern identified, some of which will look familiar to anyone who has read these reports over the last few years. Our brief rundown of the contents is as follows:

1. Use of human rights principles and frameworks. Detention and treatment in hospital are frequently not carried out in a manner that respects human Providers interfering with the right to a private life must do so lawfully, only where necessary to achieve a legitimate aim, and where the restriction is the least restrictive way of achieving that aim. There needs to be oversight of this issue at board level, and this oversight should also include consideration of equality issues and the public sector equality duty (PSED) around how the MHA is affecting BME and other equality groups.
2. Insufficient patient involvement in care and treatment (including risk management). Information for patients is still the most common action raised by MHA Over a third of care plans needed improvement in respect of patient involvement, and one in ten had no evidence of patient involvement at all.
3. Overly restrictive practice & lack of reviews for people in long-term segregation. This is particularly the case for people with learning disability or autism. There needs to be better recognition of when patients are in long-term segregation, and a more robust approach to assessing and reviewing these situations, using independent advice. There is talk by the CQC of “strengthening” their approach on this.
4. Lack of access to care and treatment both in the community and in hospital. There is still over-reliance on out-of-area placements, often due to growing issues of lack of local There is concern about the length of time people are spending in places of safety, and there were 7 notified deaths of people requiring admission where no bed was available. The overall fall in mental health beds (14% between 2014/15 to 2018/19) is in line with national policy, but community provision is not able to compensate for the reduction in inpatient services. This is a national problem, but at a local level calls for effective partnership working, oversight and leadership from providers and commissioners. The CQC MHA monitoring role may be extended to look at patient pathways and joint working.
5. Difficulties navigating the legal frameworks of MHA, MCA and DOLS. This is a challenge for patients, families/carers and professionals – the legal frameworks are complex but professionals need to understand them, work within them and keep up-to-date with developing case law. The Supreme Court judgments about conditional discharge & CTOs and deprivation of liberty have created particular challenges in terms of the legality of placements on conditional discharge and delayed discharge for restricted inpatients.

How we can help

Our national team of mental health and mental capacity specialists have extensive experience in advising health and social care providers (NHS and independent) and commissioners on all aspects of the law in this area, including:

• Advice on all aspects of the Mental Health Act, including the impact of legislative changes and case law;
• Advice on management of human rights issues in respect of care, treatment and detention of mental health patients;
• Representation at First-Tier Tribunals;
• Advice on the Mental Capacity Act, Deprivation of Liberty Safeguards and the upcoming Liberty Protection Safeguards;
• Advice on the interface between the Mental Capacity Act and the Mental Health Act;  Advice on s.117, funding disputes and commissioning responsibilities;
• Advice and representation in Court of Protection proceedings

We also provide training on all aspects of the Mental Health Act and Mental Capacity Act, including induction and refresher courses for s.12 approved clinicians.