How patients are impacted when the Mental Health Act code of practice goes unread
Sir Simon Wessely, pictured above, reviewed the Mental Health Act for Theresa May in 2018. His recommendations have been widely welcomed. However the psychiatrist himself has consistently said that reforming the accompanying code of practice will be of more practical benefit to both practitioners and patients than the imminent new legislation. Mark Brown interviews a social worker at the sharp end of sectioning decisions, who explains why.
‘Modernising the Mental Health Act: Increasing choice, reducing compulsion’, the final report of The Independent Review of Mental Health Act, was published in 2018. It made a number of recommendations for changes to the Mental Health Act itself, but also many more that were about practice within the organisations and bodies responsible for carrying out duties beneath it.
The government has committed to introducing binding Advance Choice Documents under a reformed Mental Health Act, which would stop patients ever having to undergo a specific treatment if they’d stated, when well, their preference for an alternative treatment. The new prime minister Boris Johnson may introduce a new Mental Health Bill to parliament in his government’s first queen’s speech, allowing the new legislation to come into force within twelve months.
While the Independent Review was under way, regulators The Care Quality Commission (CQC) carried out a separate review at the request of the Department of Health and Social Care to evaluate how well the Mental Health Act Code of Practice is being used across mental health services.
The first publication of the Mental Health Code of Practice was in 1993, where it ran to 135 pages. It is the ‘how to guide’ for the law set out in the Mental Health Act. The Mental Health Act Code of Practice was last updated in 2015. The current edition runs to 459 pages.
On publication of the CQC’s evaluation of the Mental Health Act Code of Practice in June 2019, Paul Lelliott, Deputy Chief Inspector of Hospitals (lead for mental health), at the CQC said: “We found that many providers lack understanding about how to promote, apply and report on the Code’s guiding principles. As a result, they were not always being used by services to empower and involve people in decisions being made about their care. We also found limited awareness and understanding of the Code amongst patients and their families and carers.”
The overall conclusion of the CQC’s review was there was not evidence the Code “has prompted a substantial change in the way services are empowering and involving people in their care.” and that “many providers lack understanding about how to promote, apply and report on the guiding principles.” Guiding principles were first introduced into the Code of Practice in 1999.
The current guiding principles for detaining people under the Mental Health Act are:
least restrictive option and maximising independence
empowerment and involvement
respect and dignity
purpose and effectiveness
efficiency and equity
The CQC identified four main barriers to the Code forming an effective guide to action: lack of awareness and understanding of the Code; quality of staff training on the Code; challenges in the usability of the Code in its present form; and lack of clear and consistent governance, monitoring and reporting on the implementation of the Code.
Responsibility for rubber stamping recommendations made by doctors around detaining people for their mental health is held by professionals, usually social workers, designated ‘Approved Mental Health Professionals’ (AMHPs). Speaking to MHT, @asifAMHP, an AMHP who regularly tweets [without disclosing his full name to allow a degree of anonymity], said: “It’s a pretty good book, you know. If people followed it, things would be done better. Most people haven’t read it. The guiding principles — fantastic, but people don’t read them.”
The Code of Practice currently applies as statutory guidance for doctors; approved clinicians; managers and staff of providers; AMHPs; and local authorities and their staff. The code of practice is considered beneficial but not statutory for commissioners of health services, the police, ambulance services and other bodies providing or commission services where people might be sectioned.
The CQC found that, while there were examples of good practice, “the guiding principles were not being routinely implemented to inform practice in the way they should.”
The CQC reviewed its own data from visits to services and interviews with patients across NHS and independent mental health services along with a sampling of issues raised during mental health act monitoring visits between 1012 and 2018. They also commissioned a literature review and engaged with those affected by or responsible for duties delivered under the Act.
Mental Health Act reviewers were most likely to request services take action relating to the principle of least restrictive practice “often in connection with the use of blanket restrictions, routine searches or high observation levels to manage risk.”
Mental Health Act Reviewers found problems with “the physical, social and therapeutic environment of the ward” when considering respect and dignity and purpose and effectiveness. This included “the presence of dormitories, as well as a failure to make sure that they were complying with guidance on eliminating mixed sex accommodation.” They also found poor care planning, poor access to information and advocacy and problems with staffing including insufficient skilled staff to support patients.
Independent Mental Health Advocates were introduced in 2007 to support people detained in accessing their rights and communicating their views to address empowerment and involvement. The CQC found ongoing difficulties with “ward staff not always knowing when a referral should be made, a lack of knowledge about the differences between the various advocacy services available and a reduction in Independent Mental Health Advocates services nationally.”
The CQC found that commissioners were “not doing enough to make sure that they are meeting their statutory responsibilities and applying the supporting guidance in the Code in relation to section 140 of the Mental Health Act. Section 140 requires every clinical commissioning group to give notice of arrangements “for the reception of patients in cases of special urgency” and “for the provision of accommodation or facilities designed so as to be specially suitable for patients who have not attained the age of 18 years.”
From @asifAMPH’s perspective, it seems that agencies and professionals not following the Code are rarely called to account. “People are departing all the time [from the Code] because they haven’t read it. And they’re not recording the reasons they’ve departed. I can improvise with the best of them but we need to know what we’re supposed to be doing before we work away from it. We don’t do things the way we should do them. The expectation is we’ll improvise before we even start. And that mostly comes down to commissioning.”
It is only Approved Mental Health Professionals who can make the application for someone to be detained in hospital for their mental health. According to the CQC, “There is no national database that tells us how many AMHPs there are in England or that captures how many social workers are also authorised as an AMHP.”
@asifAMPH suggests that there are almost certainly not enough AMHPs across the country, something which may result from commissioners viewing the Code as advisory, rather than statutory guidance. Often there are a lack of medical professionals to carry out Mental Health Act assessments; a lack of places of safety that are not police cells; and a lack of ambulance services to actually take someone to hospital if the AMHP accepts the medical recommendation to have the person admitted under the Mental Health Act.
“Doctors are responsible, according to the code and the law, for the bed,” says @asifAMHP. “When making recommendations for detention under section 3 [of the Mental Health Act] doctors are required to state that appropriate medical treatment is available for the patient. Preferably they should know in advance of making the recommendations the name of the hospital to which the patient is to be admitted. When someone has been assessed as requiring admission and there’s no bed the AMPH can’t make the application. People forget that a Mental Health Act assessment is a legal process. What we have happening around the country is doctors doing medical recommendations listing all of the local units or leaving it blank. If the form is blank it’s not a valid form. No one else can add it. This happens to people on 136s and in custody.”
Often the only answer is an out of area bed, often hundreds of miles away, or being transported by police car, or professionals involved having to improvise solutions outside of the guidance, which is dangerous for the person in distress and for the professionals in question. “If the AMHP can’t make the application,” says @asifAMPH. “what legal authority is being used to keep people in the places of safety or in the cells? Often none, is the answer. It is a nightmare but it also possibly a breach of your human rights.”
All of these confusions, which should be clarified by the Code, lead to the additional distress people experience when being sectioned. As @asifAMPH comments: “The principles are good but it doesn’t seem to be the experience of what’s actually happening on the ground.”
When responsibilities are not fulfilled, or where different bodies work to different interpretations or act in ignorance of them, the CQC state: “approved mental health professionals are often left in a difficult situation when they have assessed someone as requiring detention under the MHA but are unable to find a bed” and “people who are arrested under criminal law are staying in police cells for too long, often unlawfully, after it has been established that they need to be admitted to hospital following an assessment under the MHA.”
Looking at a sample of 40 reports where MHA reviewers had raised concerns about the involvement of patients, carers and relatives in decisions about their care after visits, the CQC found only 10 of the organisations in question had identified a need for further staff training and development. With detentions under the Mental Health Act rising the CQC conclude: “it is more important than ever to make sure that the Code is clear, accessible and supports the legal safeguards that protect people’s human rights and autonomy.”
As @asifAMPH says, “People do things because that’s how they’ve always been done. Lots of doctors won’t have read the Mental Health Act. Lots of commissioners simply won’t have read it. They’ll have never read the Mental Health Act, never read the Code of Practice. People like me end up reading these things and going ‘hey, look, that’s really helpful. Why don’t we do what it says in the book?’ And people go ‘oh, I’ve not read it.’”
The current Mental Health Act Code of Practice, and an abridged easy read version of 74 pages, are available to view here.
Mark Brown is a regular contributor to Mental Health Knowledge and Mental Health Today and is writer in residence at the Centre for Mental Health. He is a former editor of One in Four magazine.
This showcase Medium page only shows a limited selection of articles from Mental Health Knowledge. Find out how to unlock them all here.
