‘Patients are being threatened with the Mental Health Act’s powers but offered none of its protections’

The CQC's latest findings on how the Mental Health Act is being used in services raise a series of concerns around patient rights and involvement

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Picture: Rex Features/Phaney

By Martin Coyle, director of True Voice

A number of significant problems in the mental health system are identified in a report released this week by the Care Quality Commission on use of the Mental Health Act. For me, some of the most important issues identified in the report relate to barriers that are preventing people from leaving psychiatric care, specifically a lack of care planning, discharge planning and the concerning trend of people being subject to ‘de facto detentions’.

Let’s start with de facto detentions, an issue where people who have voluntarily agreed to come to hospital for treatment – as opposed to being detained under the Act – are then told by staff they will be detained if they try to leave. This amounts to people being kept in hospital when there is no legal basis to do so.

The issue was brought to attention by a Health Committee report last summer. At the time the committee said: “It appears that this practice is not extensive within the mental health system; nonetheless, the committee regards it as completely unacceptable.”

Yet this week’s CQC report suggests that far from de facto detentions being a practice that “is not extensive”, it is in fact increasingly routine. The CQC found that in 20% of cases:

“…patients who were not formally detained may be prevented from leaving. Measures of this included whether informal patients said that they were unable to leave the ward, where staff reported that they would automatically use holding powers to stop an informal patient leaving, or where staff were uncertain which patients were informal and which were detained.”

This is a clear breach of the Mental Health Act Code of Practice, item 4.12, which states:

“The threat of detention must not be used to induce a patient to consent to admission to hospital or to treatment (and is likely to invalidate any apparent consent).”

The upshot of this is that a large number of treatment decisions are being made without valid consent – a situation that should be a major concern to the professionals involved.  It means that voluntary patients face the powers of the Mental Health Act without its protections (such as the right to independent advocacy). The importance of this situation cannot be downplayed. It is, as the Health Committee report stated, “completely unacceptable”.

A lack of patient involvement

The CQC also identified serious problems with care and discharge planning. The mental health system is meant to promote recovery and enable people to have a positive discharge from hospital. Care viewed in this way should see the patients as a partner in recovery, someone actively involved in their care planning.

Remember the government mantra that in NHS care there will be “no decision about me, without me”? The CQC’s findings show that this isn’t the case in mental health. More than a quarter (27%) of care plans showed no evidence of patients being involved in them. Over one in five (22%) showed no sign of the patient’s view having been taken into account. These are major documents that inform care decisions. That’s quite a lot of decisions being made about me, without me. It’s hard to imagine another system that would settle for failing to meet a fundamental performance measure in a quarter of cases.

As for an effective discharge from hospital, the CQC found that one third of care plans contained no sign of discharge planning. This is difficult to reconcile with a service supposedly focused on recovery. The report correctly states that hospitals have a legal responsibility to provide ongoing planning of aftercare, so why is this so frequently absent?

The CQC’s report demands to be read and acted on. It suggests a system of coercion not collaboration, of containment instead of recovery. It is commendable that the CQC is picking up these failings but concerning that the problems with lack of involvement in discharge and care planning have remained the same for two years. The CQC describes this as unacceptable. I agree. The question is – what will drive change now?

People being excluded from their care decisions, people whose discharge is given no thought, people being wrongly deprived of their freedom, these people need services to radically change the way they operate; putting people back in control of their lives. Failing in one fifth, one quarter, one third of cases is not good enough. Merely saying that things have been unacceptable for two years is not enough. Should services continue to resist change, we need a regulator that will challenge and change those systems.

Martin Coyle is Director of True Voice. Follow Martin on Twitter here.

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