Our speakers looked at the Mental Health Units (Use of Force) Act and what it means for hospitals in the mental health and acute sector.
Mark Barnett, Partner, Browne Jacobson
Mark is a Partner in our Advisory & Inquests teams and advises health and social care providers and commissioners on issues around the Mental Capacity Act, deprivation of liberty and Court of Protection applications. Mark also regularly represents clients in Inquests and delivers training on a wide range of healthcare related topics.
Government consultation ran from 25 May 2021 to 17 August 2021 and the response to consultation, together with the statutory guidance were published on 7 December 2021.
The provisions of the Act come into force on 31 March 2022.
Statutory guidance (linked here) was published on 7 December 2021 by the Department of Health and Social Care - to prevent the inappropriate use of force and ensure transparency and accountability about the use of force in mental health units.
“Mental health unit” means:
Examples from the guidance of what are considered ‘mental health units’ include:
Examples from the guidance of what are NOT considered ‘mental health units’ include:
Note: both lists are illustrative and non-exhaustive. Must consider the statutory definition.
The record of the use of force must include the:
No prescribed format – but systems must be in place for staff to record the required information and/or report it to the responsible person (or their delegates).
It is already mandatory… to submit data on the use of force to the NHS Digital Mental Health Services Data Set. Through the implementation of the Act we can expect to see an increase in compliance in relation to the submission of data, and the number of organisations or trusts submitting data in order to meet their obligations under the Act.
Role of the regulator:
The Care Quality Commission are to have regard to the statutory guidance when carrying out its regulatory functions. If the CQC consider the statutory guidance is not being followed, they can take appropriate action.
Role of commissioners:
NHS England and NHS Improvement commissioners need to assure themselves that those whom they commission to provide services have the necessary knowledge, skills and competencies to support all patient groups, and have arrangements in place to reduce risk and minimise disproportionate use of force.
Rebecca Fitzpatrick, Partner, Browne Jacobson
Rebecca is one of the leading national specialists in mental health law, with 20 years of experience in the field including work in relation to the Mental Health Act, the Court of Protection (mental capacity issues), the High Court (complex treatment cases, e.g. involving children), the Administrative Court (judicial review, human rights and community care issues) and the Coroner’s Court. She sits as a fee-paid First-Tier Tribunal judge (mental health) and also regularly lectures in the above areas of law to a range of professionals, including the Royal College of Psychiatrists.
Whilst the MHA Code of Practice sets out guidance as to best practice, on occasion it may be appropriate to depart from the Code where there are good reasons to do so.
The court ruled that a Code of Practice was statutory guidance that must be followed unless there are ‘cogent reasons’ for departure and it was up to the departing professional or organisation to justify their actions, case by case.
This case concerned the seclusion policy of a High Secure Hospital and it was accepted by the Court that due to the very specific nature of the patients the Hospital had to manage and the risks involved, it was appropriate in the circumstances for them to have a seclusion policy which departed in some instances from the procedure/guidance set out in the then Code of Practice.
Lord Justice Bingham in the judgment said:
“It is in my view plain that the Code does not have the binding effect which a statutory provision or a statutory instrument would have. It is what it purports to be, guidance and not instruction. But the matters relied on by Mr Munjaz show that the guidance should be given great weight. It is not instruction, but it is much more than mere advice which an addressee is free to follow or not as it chooses. It is guidance which any hospital should consider with great care, and from which it should depart only if it has cogent reasons for doing so.”
In the judgment the court also confirmed:
“there is a general [common law] power to take such steps as are reasonably necessary and proportionate to protect others from the imminent risk of significant harm. This applies whether or not the patient lacks capacity to make decisions himself”
SC1 – this requires the Trust to comply with not only the Service Specifications in the Particulars (as mentioned above, this is an example of how the contents of the Particulars will be important), but also “Law” and “Good Practice”
“Law” includes not just the obvious categories of statutes, regulations etc but also “Guidance” and any “applicable codes”.
“Guidance” is defined to mean:
“any applicable health or social care guidance, guidelines, direction or determination, framework, code of practice, standard or requirement to which the Commissioners and/or the Provider have a duty to have regard (and whether specifically mentioned in this Contract or not), to the extent that the same are published and publicly available or the existence or contents of them have been notified to the Provider by the Co-ordinating Commissioner and/or any relevant Regulatory or Supervisory Body.”
“Good Practice” is defined to mean:
“using standards, practices, methods and procedures conforming to the Law and reflecting up-to-date published evidence and using that degree of skill and care, diligence, prudence and foresight which would reasonably and ordinarily be expected from a skilled, efficient and experienced clinical services provider and a person providing services the same as or similar to the Services at the time the Services are provided, including (where appropriate) assigning a Consultant to each Service User who will be clinically responsible for that Service User at all times during the Service User’s care by the Provider.”
s.3(1) “a person may use such force as is reasonable in the circumstances in the prevention of a crime.”
This provision enables a member of staff to use reasonable force to restrain a patient in self-defence or in the defence of others or to protect property where this is necessary and proportionate in the circumstances.
This case confirmed a common law power exists enabling citizens to prevent a breach of the peace;
“every constable and citizen enjoys the power and is subject to the duty to seek to prevent, by arrest or other action short of arrest, any breach of the peace occurring in his presence, or any breach of the peace which (having occurred) is likely to be renewed, or any breach of the peace which is about to occur”
A breach of the peace can occur in a public or private place. Breach of the peace is not a criminal offence.
In the judgment the court confirmed:
Confirmed common law limited power to detain:
“The common Law permits the detention of those who were a danger or potential to themselves or others, in so far as this was shown to be necessary”
In 2004 a man who had been detained in police custody as a place of safety under s136 MHA was subject to an inordinate delay in being admitted to hospital after being assessed under the Mental Health Act. During that time, his personal welfare, his psychiatric condition and physical condition deteriorated to such a degree that he was naked in a cell – having soiled his clothing and used it to try to self-harm – and he wasn’t eating or drinking. The failing to expedite his admission to hospital when he was detained in police custody and in ‘dire need of psychiatric care’ was ruled to be a violation of Article 3 of the European Convention.
Officers attending a mental health emergency in the claimant’s private premises were wrong to rely upon the Mental Capacity Act 2005 to defend their actions, when they removed her from her home and took her to the local Mental Health Act place of safety for assessment. In this judgment, the court reminded us all that the proper legal process for responding to mental health emergencies in someone’s home where there are no criminal offences or urgent, life-threatening risks, is to solicit the support of an AMHP and a doctor and request consideration of an urgent assessment under s4 MHA.
In this case a 16 year old boy with severe autism was on a school trip to the local swimming pool in Ealing, London and as they group made to leave, went and stood by the side of the pool, staring at the water. This was not unusual behaviour for him, as he often fixated at water and usually did so for 15-20 minutes before moving away. The pool manager was not happy at his actions and called the police, asking for him to be moved. Without taking advice or guidance from staff present, officers approached him and when they touched him on his back, to encourage him away from the water, he jumped in.
Lifeguards were there as a contingency and formed something of a cordon to move him towards the shallow end and officers pulled him from the water, restrained and handcuffed him before placing him in a police van, still wet. After a short while, they completely released him and he left the swimming pool with school staff. His family brought proceedings against the Metropolitan Police Commissioner for assault, battery and violation of human rights laws and were successful, including when the Commissioner appealed against the initial verdict. The court emphasised that officers were wrong to rely upon the Mental Capacity Act 2005 in justifying their actions.
S.3(5) of the Children Act 1989 staff may do “what is reasonable in all the circumstances of the case for the purposes of safeguarding or promoting the child’s welfare”.
Mental Health Act Code of Practice
Human Rights Act (applies to children & adults)
Richard Idle, Named Nurse for Adult Safeguarding, Sherwood Forest Hospitals NHS Foundation Trust (SFH)
Richard is the Named Nurse for Adult Safeguarding at SFH, and was previously a mental health nurse specialist at the Trust. He set out the practical steps his Trust has taken to implement the Guidance.
During the discussion that followed we covered a number of issues.
Recording of restraint and use of force and the specific requirements of the Act is good practice even in areas where it does not apply (e.g. ED). The purpose of the Act is to ensure accountability and transparency around the use of force. There is an argument that this is something we should just be doing anyway.
Yes
They are not specifically included in the exclusion so we should assume they included.
Generally this tends to be caught under NHS Resolution provisions.
The Act only applies in Mental Health Units (as defined) and so won’t apply in care homes or supported living unless MHA registered.
Unlikely - the Act applies to “patients”, which is defined as a person who is in a mental health unit for the purpose of treatment for mental disorder or assessment. Ask yourself whether the patient falls into that definition as well as the definition of “mental health unit”, which is a health service hospital (or part of a health service hospital), the purpose of which is to provide treatment to in-patients for mental disorder.
As above, it will only apply where the person falls into the definition of “patient”, i.e. a person who is in a mental health unit for the purpose of treatment for mental disorder or assessment.
The definitions of restraint though suggest that there is an element of control – physical restraint means the use of physical contact which is intended to prevent, restrict or subdue movement of any part of the patient's body and mechanical restraint means the use of a device which is intended to prevent, restrict or subdue movement and the primary purpose is for behavioural control – which hoisting is unlikely to fit into.
The Act and its requirements will still apply even if locum / agency staff are employed – the Responsible Person needs to ensure there is an appropriate policy in place and that staff are appropriately trained.
Where the guidance is departed from, staff need to record the reasons for this, equally if the organisation policy on restraint deviates from the guidance “cogent reasons” will need to be provided to explain why this is.
Most references to family or advocates in the statutory guidance are around information sharing and ensuring patients are supported to make their own decision, which could include from their family, advocate or carer.
The Act can still apply in the acute hospital environment – it does not matter who is applying the restraint.
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