More focus on human rights needed when using the Mental Health Act

On 6 February 2020, the Care Quality Commission (CQC) published “Monitoring the Mental Health Act in 2018/19” which found that although improvements have been made, healthcare services need to do more to comply with their human rights duties.

Denying a person of their liberty and forcing hospital treatment upon them is arguably the most intrusive intervention possible. In 2018/19, there were 49,988 new Mental Health Act (MHA) detentions. Thought and consideration must be given to every detained patient’s fundamental rights.

Areas of concern

The inspectors met with 4,436 detained patients which led to 4,477 actions requested of care providers. Their five areas of concern were:

1. The use of human rights principles and framework - The underpinning principles of Fairness, Respect, Equality, Dignity and Autonomy (FREDA) are not always applied to the care and treatment of detained patients. 4,088 records were examined to ensure patients were being told about their rights on detention, 13% showed either no information or inadequate information given.
   
   
2. Involvement in care - In the care plans reviewed, 37% showed inadequate or none existent involvement of the detained person.  More needs to be done to empower and involve detained patients in the treatment decisions that affect them. Reassuringly, access to Independent Mental Health Advocates (IMHA’s) has improved, with 91% of the inspected wards automatically referring patients who lack the capacity to instruct a solicitor to IMHA’s.
   
   
3. People in long term segregation - This has been a reoccurring concern and focus for investigations by the CQC. Often, people with autism or learning disabilities are segregated from their peers and as such experience delays in receiving independent reviews. There must be independent and regular reviews of the situation, and the principle of least restriction needs to be applied robustly.
   
   
4. Access to care and treatment - Detained patients are not always receiving the help and treatment that they need. Between June 2018 and March 2019, there were at least seven deaths of people who required admission to hospital but for whom no beds were available. While the 14% fall in mental health beds is in line with policy, more needs to be done to ensure vulnerable people are not left without the care they need.
   
   
5. The interface between the MHA, Mental Capacity Act 2005 and Deprivation of Liberty is complex - There need to be urgent reforms to the Codes of Practice for the MHA, Mental Capacity Act and Deprivation of Liberty to make clear how the regimes work together and what rights and protections are afforded under each regime.
   
   

In early 2020, the Government are due to publish a White Paper in response to the independent review of the Mental Health Act, published in full in December 2018.

This is the ideal opportunity for the Government to respond to yet more concerns about the treatment of detained patients. I personally look forward to seeing how the Government plan to protect the most vulnerable people in society.

For more information

If you have concerns about your own or a family member’s detention in hospital, or about Mental Health Tribunals or Court of Protection welfare proceedings, please contact Rebekah Sambrooks or Kirsty MacMillan.