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Thursday, 8 December 2011

Monitoring detention under the MHA and the MCA

Today the CQC published their latest annual report on the Mental Health Act (MHA). As with their last report, it gives a detailed whole-system analysis of the functioning of the MHA, with particular attention to the experiences of detained patients, and how effectively their rights are being protected. In my (admittedly quite idiosyncratic) view, the CQC’s monitoring of the MHA is one of its greatest strengths. It is no exaggeration to say that its work in the field of detention monitoring for mental health is world leading, and reflects the considerable experience, knowledge and independence of the MHA commissioners at the CQC. I wanted to use this post to explore what exactly makes the CQC so strong in this field, and what we could usefully learn from this to apply to how the deprivation of liberty safeguards (DoLS) under the Mental Capacity Act 2005 (MCA) are monitored. One thing that will, I hope, become clear in this piece is that the CQC face a considerably greater challenge in monitoring the DoLS than the MHA. A lot of the infrastructure that CQC rely upon in their monitoring role simply isn’t there (yet) for DoLS to enable a whole-system analysis. To put this in perspective, the MHA is in its third decade, the DoLS are tottering into their third year, and so things may well change in the future. 



Differences in remit and workforce infrastructure 

The first key difference between monitoring the MHA and the DoLS is workforce related. The statutory duty to ‘ keep under review’ the powers conferred by the MHA was transferred to the CQC from the old Mental Health Act Commission (MHAC), whose staff continue to remain a relatively distinct unit within the CQC and are often still referred to as “Mental Health Act Commissioners”. The Commissioners’ remit is to visit places of psychiatric detention: 
‘The visits are not assessments of the overall standards of care and treatment in the hospital (that work is carried out by our compliance inspection teams), but tell the story of the overall impact on the patient’s experience of detention and the level of compliance with the Act and the accompanying Code of Practice.’ p6
This is very different to the remit of CQC’s compliance inspectors who visit care homes, hospitals and other sites for regulatory purposes. The CQC is also required by regulations to monitor and report on the operation of the DoLS. But whereas the MHA Commissioners undertake visits for the sole purpose of monitoring the MHA, no equivalent visiting function exists in respect of DoLS. DoLS is, presumably, to be monitored through the CQC’s ordinary compliance inspection framework. The difficulty here is that compliance inspectors inspect against a much larger range of outcomes, some of which are tangentially related to the MCA/DoLS, but their knowledge base is necessarily broad and may not be that deep. Meanwhile, the Commissioners are specifically expert on the MHA itself; their knowledge of the MHA and their sensitivity to issues around human rights is considerable.  I suspect most compliance inspectors would have had little more than a day or so of training on DoLS, and I very much doubt they keep up to date on case law. Indeed, even if they did, I doubt they’d be much better at deciphering it than the rest of us, which is the difficulty with monitoring a badly drafted framework that is very much in its infancy. A central difference, then, for the monitoring of DoLS is that there is no comparable visiting scheme, and no comparable expertise base - particularly for people detained in care homes. 

For people who are detained outside the scope of the DoLS, in setting likes supported living, there is not even a visitation or site inspection scheme in place. This is almost certainly in contravention of the UK’s obligations under the Optional Protocol on the Convention Against Torture (OPCAT), but it’s very difficult to see what CQC can do about this. The reason they cannot inspect supported living services is because they have no right to inspect a person’s own home (supported living service users typically have tenancies). I do wonder if they could look to set up some kind of consensual visitation with detainees though, perhaps also liaising with advocates or relatives to support interviews. The difficulty here would be firstly resources; and secondly the CQC would have to be notified of these detentions that take place outside the DoLS (itself, I think, a good idea as we have no current system of keeping track of these). There may be data protection difficulties, however, in passing on detainee’s contact details to the CQC to arrange visits. 

In hospital settings the MHAC have been raising issues around de facto detention of voluntary patients for years; in fact they even intervened in the Bournewood case, and were one of the few public authorities at the time to recognise the need for additional safeguards for incapacitated patients. Initially it looked as if, for hospital patients at least, people detained under the DoLS might fall within the Commissioners’ visiting remit. In 2009 the CQC issued some guidance on how they would monitor the DoLS (I can’t link to it because it’s not on their new website, sorry), in which they said they would ‘Identify people who have been subject to deprivation of liberty applications during Mental Health Act visiting activity in hospitals and explore the experience of some of those individuals’. I am not at all clear if the Commissioners are actively doing this in hospitals at the moment; surprisingly there is not a single mention of the DoLS in this report. In fact I think it might be the first report on the MHA since at least 2003 to make no mention of de facto or ‘Bournewood’ type cases. I was somewhat disappointed by this, and I do hope they contribute their knowledge of hospital patient experiences and the MHA/DoLS interface to the next annual report on DoLS. 


The voice of detainees 

One of the greatest strengths of the MHAC and their current incarnation in CQC is the amount of energy they devote to obtaining the experiences of detainees. This isn’t a tokenistic quote or two, or some photos of service users for padding; it’s absolutely fundamental to what they do and perceivable in all aspects of the report. The tone is set right at the start with ‘Margaret’s Story’, which offers the wise remark ‘What could be better for my mental health than having my opinions listened to and respected?’ The report covers several areas and offers an insight into patients’ views and experiences of: 
  • Issues around staffing levels and continuity of care in hospital staff 
  • Lack of meaningful or engaging activities on hospital wards 
  • Overcrowding on wards 
  • Excessive interferences with privacy and liberty 
The CQC also take great pains to ensure the voices of detainees are heard by the hospital, and encourage their views and experiences to be embedded into infrastructure and practice. For instance they advocate: 
  • Giving patients greater involvement in their care planning and reviews, rather than inviting them in to ‘ask questions’ afterwards as one hospital was found to be doing; 
  • Ensuring “Easy Read” care planning documents don’t diverge from the documents used by staff, and that the documents used by staff contain input from patients about their views and aspirations, not just ‘medical’ information; 
  • Seeking the views of patients following episodes of restraint to see what can be done to ensure such incidents don’t recur; 
  • Ensuring capacity to consent to treatment is properly assessed, and ensuring patients have the chance to ask questions or express concerns in private about their medication; 
  • Ensuring patients are involved in choosing available activities; 
  • Involving patients in the running of the wards and giving patients roles in the ward, for instance one patient commented positively about being able to show around new staff as part of their induction. 
Part of the reason the CQC are able to report so authoritatively on the MHA, and part of the source of widespread admiration for its work, is that it treats the experiences and views of patients so respectfully. On each visit the Commissioners aim to interview patients in private, enabling their voice to be heard. The interview method at the heart of the visitation scheme provides a conduit for conveying experiences and views from the locked ward straight to those with power, through a report that is widely read by politicians and policy figures and (one hopes) the very mental health professionals that treat them. 

In comparison, it is hard to see how this could be achieved for the DoLS, at least in the short term. The CQC did in its 2009 guidance express a desire to seek the experiences of DoLS detainees, but there was really no sign of this in their first monitoring report. Given the strains on compliance inspectors’ time, and the lack of a specific DoLS monitoring infrastructure to collate information, I’m not sure that seeking the experiences of DoLS detainees is feasible in the systematic way it is for the MHA. I did a quick audit of compliance inspection reports for 40 residential services for adults with learning disabilities; unfortunately 45% of services had no report on the new CQC website, but of those that were 37% of my sample indicated inspectors did not interview service users – although in 25% of cases they did speak to relatives or advocates. 

It is my understanding that CQC are going to introduce a system whereby inspectors must consider whether to look at DoLS for each compliance inspection they conduct, and so that may improve attention to this area. I think this is much needed. I conducted an audit of dementia care home inspection reports in an area which I know has very high levels of DoLS activity; I found very few mentions of DoLS indeed. Those that did referred mostly to staff having completed training; in comparison with CQC’s detailed analysis of the application of the MHA, asking about training is a very poor substitute for proper monitoring of the DoLS. Given the mammoth task of adjusting to a new regulatory framework and developing expertise on all the essential outcomes, it may take time for CQC inspectors to become accustomed to considering the relevant aspects of DoLS and it may sometimes be challenging for them to find the time to seek out detainees’ experiences. 


Essential safeguards: Advocacy 

One of the areas the CQC looked at in this report, as in previous reports, was statutory advocacy – specifically the Independent Mental Health Advocates (IMHA’s). CQC recognises the central importance of advocacy in ensuring people understand their rights and are able to access them. Their report echoed the concerns of the Mental Health Alliance that access to the safeguard of advocacy is variable, and there are commissioning problems. They carried out a series of targeted checks and found that detained patients had regular access to IMHA’s on only 65% of wards; and that IMHA’s would come when requested on only 85% of wards. They noted that people on CTO’s often had worse access to advocates. From the perspective of DoLS this is interesting, because most DoLS cases are spread throughout the community, and also often across hospital wards that may not typically be used for psychiatric detention. It may suggest that it is harder to guarantee advocacy services for a geographically dispersed population. 

Access to an Independent mental Capacity Advocate (IMCA) is a vital safeguard under the DoLS. In their last DoLS report CQC made no mention of advocacy referrals at all; I do hope they address this issue in their next report. The Mental Health Alliance have twice raised concerns that people are not being supported by Independent Mental Capacity Advocates (IMCA’s) under the DoLS, and in the case Neary v Hillingdon the judge ruled that failure to pro-actively refer Steven Neary and his father to an IMCA for support had contributed towards a breach of Article 5(4). It is arguable that IMCA’s constitute an even more vital safeguards under the DoLS than IMHA’s role under the MHA, since their role may be essential to accessing the appeal mechanism. Whereas a patient detained under the MHA will be referred to a tribunal automatically in the end, the DoLS require somebody to actively apply to the Court of Protection to mount an appeal. Anecdotally (because there is no hard evidence on this), many people struggle to access this right because they simply do not understand how and when to do it. As in the Neary case, an IMCA may be central to supporting a person’s representative to appeal, or as in a recent case an IMCA may be relied upon to mount an appeal on P’s behalf. 

In my view, any serious whole-system analysis of detention under the MCA must learn from the way the MHA is monitored and explore advocacy. Yet here the CQC hit a difficulty with DoLS monitoring that just does not exist for the MHA; they are no longer allowed to assess the performance of local authorities – who are the supervisory body in the majority of cases, and will soon be in all. In the DoLS the majority of the safeguards are under the control of the supervisory body, not the managing authority, and yet the CQC has no obvious means to assess their performance any more. This is a Department of Health decision, not CQC, and in my view it is devastating to the success of DoLS monitoring. Without access to the supervisory bodies themselves, how can we know whether the safeguards – which mostly lie in their hands - are being applied appropriately? 

The CQC could, however, make a start by requesting that the Department of Health share their data on IMCA referrals under the DoLS for each local authority. I have been trying to get hold of this data for the best part of this year, and have met with incredible resistance from the Department of Health and the NHS Information Centre. However, you could match it up with the DoLS authorisations data for each supervisory body, and consider whether they were making referrals at the levels you would anticipate, flagging up potential risk areas. When I wrote to each local authority in England before Christmas 2010 I found that one-third had never made a referral under s39D ­– this kind of referral failure occurred in Neary, and was found to be a breach of Article 5(4). 


Essential safeguards: Tribunals 

The CQC also includes a section in their report on Tribunals. The tribunal is the Article 5(4) mechanism that ensures a speedy review of the lawfulness of detention of psychiatric patients under the MHA. Patients successfully appealed to the tribunal in 12% of cases, and were discharged. A looming Tribunal hearing on the horizon also seems to have a ‘focussing’ effect on patient discharge; around a third of patients were discharged by their doctors after they had applied for a Tribunal hearing. Earlier in the year the CQC also produced a report with the Administrative Justice and Tribunals Council on patients’ experiences of tribunals, which is well worth a read. 

Here again we see the CQC are able to combine high level information with first-hand experiences in their reporting on the MHA. Sadly, no comparable data exists for DoLS. The CQC bemoan the lack of demographic data collected by the Tribunal Service; I echo that concern, but the picture for DoLS is far worse. We don’t even know how many people have been discharged in a s21A appeal! For all we - the public - know, Steven Neary might be the only person ever to have been discharged from detention by the Court of Protection. This poses a real problem for a whole-system analysis of the ways the DoLS are working, and again this isn’t so much the fault of the CQC but a lack of wider infrastructure to support their monitoring role. As a general rule, I would say there seems to be a bit of a dearth of data collected by the Ministry of Justice for civil court hearings; the CQC could usefully put pressure on them to collect demographic and outcome data on DoLS. It would also be useful and informative if we were able to capture the voices and experiences of Court of Protection users in DoLS appeals, and perhaps CQC could approach the Court of Protection to work out some way of doing this – as they clearly have done with the Tribunal service. 


Reporting on other issues 

The CQC also report on other issues commonly experienced by psychiatric detainees, for instance concerns about over-occupancy on wards, excessive interferences with liberty, risk assessments and safety concerns, a lack of meaningful activity on the wards, concerns over consent to treatment. These paint a very powerful picture of ward life as experienced by some patients. An equivalent picture for people detained under DoLS would be harder to come by, given the diversity of settings they are detained to. Such a picture must come from the CQC’s ordinary regulatory functions, I suspect, and they’ve made a start with themed reports like Dignity and Nutrition. I think it would be timely for the CQC to consider a themed report on issues around capacity and consent, given it is now almost five years since the MCA came into force. 

Perhaps my ‘legal’ focus is coming through too strongly here, but I did think it was a shame that the CQC didn’t offer any discussion of case law relating to the MHA, as the MHAC used to in the biennial reports. Cases like Rabone v Pennine Care NHS Trust, for instance, which concerned a hospital’s duties towards voluntary patients under Article 2. Or cases like CX v A Local Authority & Anor, where the court granted a writ of habeas corpus to a detained patient whose nearest relative had withdrawn an objection to the detention on the basis of misleading advice by an AMHP. In the case of the DoLS, I understand that the CQC has called upon the Department of Health to provide better information about case law. But it strikes me that really the annual monitoring report would be an ideal vehicle to disseminate that information. Any report on DoLS that failed to mention the effects of key rulings like P & Q, GJ v The Foundation Trust, Neary v Hillingdon or Cheshire West and Chester Council v P would, I think, fail to take account of the way case law is so central to shaping the operation of DoLS as a whole. I also think C v A Local Authority [2011] is set to be a very important case about the limits of the use of restraint and seclusion in social care, and would like to see it better publicised to providers and social care professionals.  Probably this is also a bit pernickety given they’re such a small population, but I would have liked to have seen a bit more about experiences of Guardianship under the MHA. My interest is because Guardianship is often touted as a good alternative to the  DoLS, and yet we know very little about how effectively it operates or people's experiences of being subject to it.


What can we learn from the CQC’s MHA monitoring role? 


The CQC’s report on the MHA succeeds in giving us a detailed picture of how the Act is functioning. For the reasons I’ve outlined, it is less likely they will be able to produce such a detailed report on the functioning of the DoLS. It is much harder to get at the experiences of detainees in this group, because of the diversity of services they are detained to and the lack of a comparable visitation scheme. And CQC’s monitoring role is unhelped by the paucity of data collected on vital safeguards like IMCA referrals and the appeal mechanism. However, they could profitably direct pressure towards the Department of Health and the Ministry of Justice to assist them in this role, just as they directed gentle pressure towards the Tribunal service to collect demographic data on MHA appeals. Overall at present DoLS remains very much the poor relation of the MHA in terms of both effective safeguards on liberty, and monitoring arrangements. 

I wanted to finish off with a few general comments about the ongoing role of the MHA Commissioners at CQC. Despite hearing various critical remarks about CQC’s regulatory role regarding compliance, I can’t remember ever hearing any criticisms of the MHA Commissioners from anyone. They are extraordinarily well respected for their knowledge, experience and integrity. This is not because the MHAC visitation regime is perfect; there is always room for improvement. Neither is it failsafe; Winterbourne View was visited and even complimented by the Commissioners, but it was the compliance inspectors that came in for criticism not the visitation scheme. (As an aside, it’s somewhat surprising the well publicised issues with these services weren’t mentioned in the report, but perhaps they are awaiting the results of the Serious Case Review in the new year). It may be that the public are simply poorly informed about the MHA monitoring role, or it could be that the MHA Commissioners have effected more realistic public expectations about what they can achieve and what their role is. 

I suspect part of the reason they are well respected is because of their willingness to highlight problems within the mental health system, to look behind the slick assurances of managers and listen to the service users.  The Commissioners have a long tradition of really quite forthright in their criticism of government policies in mental health. There were definitely signs in the report that this “critical friend” tradition continues to live on at CQC; there were some not especially complimentary comments about the Department of Health’s policy on night time confinement, for instance. The CQC reports on the MHA also give practical and workable examples of good practice, and contain valuable detailed information on the state of the sector. It strikes me that there is a real appetite for this kind of reporting in care at present. Not assurances that everything is fine, nor even a crackdown on poor services without concomitant attention to national policy issues that are at the root of many problems. People want constructive criticisms levied at all aspects of the system. It is only through such detailed monitoring and reporting will we be able to facilitate the conversations that are needed to make improvements

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