Joint Committee On Human Rights

Joint Committee On Human Rights Written Evidence

5. Memorandum from Mental Health Act Commission

I. CAUSES OF DEATHS OF DETAINED PATIENTS

Commission research into deaths of detained patients

1. Research undertaken by the Mental Health Act Commission on deaths of detained patients between 1997 and 2000 show that, as might be expected, the highest proportion of such deaths (more than 80%) result from natural causes[23]. The 253 deaths from unnatural causes were mostly suicide. The causes of these deaths, as determined at inquest, break down as follows:

Hanging[24] 86 Method unclear 7

Jumped from height 36 Accidental 5

Hit by train 29 Fire 5

Drowning 21 Hose-pipe to car exhaust 3

Self-poisoning by overdose 13 Self-suffocation 2

Unsure accident/suicide 15 Death caused by another person 1

Jumped from vehicle 9 Self-strangulation 1

Category split of 233 unnatural deaths of detained patients 1997-2000[25]

2. Twenty-two of the above patients had been subject to restraint in the week before their death, and four of these were being restrained at the time of the incident that proved fatal to them. Researchers did not draw any conclusions about the use of medication in this study, but the Commission's 1995 study of deaths between 1992 and 1994 counted 15 deaths (approximately 7% of all deaths in that study) as "iatrogenic", defining this in a non-pejorative sense as any death consequent to a health-care intervention[26]. Of these, 10 deaths appeared to be directly related to psychiatric medication. We discuss this further below (see 5.14 et seq below), although not all of the 10 deaths will have been as a result of emergency interventions.

3. Only a third of the deaths tabulated above took place within hospital premises. About half of the deaths took place in the wider community (through patients being absent from their place of detention, whether authorised or not): the remainder took place in general hospital environments (where a patient may have been moved following the incident leading to death).

4. In our reports on deaths of detained patients, the Commission has drawn general conclusions for services regarding risk-assessment, observation of vulnerable patients, granting of leave etc. We do not restate these in any detail in this submission, but will rather concentrate on those aspects of services that give us much concern, and the ways in which we perceive human rights-based approaches being central to challenging and developing current practices.

II. MATTERS OF CONCERN TO THE MENTAL HEALTH ACT COMMISSION IN THE PREVENTION OF PATIENT DEATHS

5. Particular aspects of conditions of detention and the treatment of detainees that cause the Commission concern and are, in its view, avoidable contributory factors in patient deaths are set out in the following paragraphs.

Anti-therapeutic environments within hospitals

5.1 Poor therapeutic environments within hospitals may be caused by bed pressures, inappropriate mix of patients, or simply the general environmental state of wards. Such conditions may retard patients' recovery and can also be contributive to patient behaviour that causes management problems, leading to control and restraint, seclusion, etc, or to episodes of self-harm or suicidal attempts. In one recent visit report on a London hospital, for example, Commissioners have alerted the hospital managers to the continuing effects of 200% bed-occupancy, low staff morale and the use of excessive force during control and restraint. We have advised the hospital to attend these concerns urgently before there are serious injuries on the ward.

5.2 The Commission has noted Government recognition of "the significant pressure on acute psychiatric beds, with services forced to maintain waiting lists, send people home on leave and place users in services outside their area" and the need for a whole-systems approach in tackling the problem[27]. We also recognise that the Department of Health's Policy Implementation Guidance seeks to address the problems of providing a therapeutic experience to patients under circumstances of overcrowding and pressures on services[28]. Nevertheless, in our view there is much work to be done (see also paragraph 5.19 below) and the Commission will continue to give high priority to monitoring the general conditions into which detained patients are compelled to receive treatment for as long as we continue to exist.

Bullying, sexual and racial harassment on wards

5.3 Many hospitals fail to deal adequately with patient to patient bullying or harassment. Some of the Commission's concerns in relation to this problem are specific to women patients and patients from black and minority ethnic communities.

Women patients

5.3.1 Twenty eight per cent of detained patients dying unnaturally between 1997 and 2000 were women[29]. In its Ninth Biennial Report, the Commission noted some slow progress towards implementing NHS directives on safety, dignity and privacy in mixed environments[30]. Whilst, in some hospitals, excellent women's services are being developed and implemented, the experience of Commissioners in visiting services suggest that implementation of these objectives, which included establishing separate washing and toilet facilities and safe sleeping arrangements alongside more general organisational arrangements for the safety and security of women patients, has not been met in any meaningful sense in a number of services, notwithstanding the view of the Department of Health that there is at least 96% compliance[31]. We have previously warned that some services may comply with the basic elements of the Government's objectives without in reality offering a quality service to women. The Commission has listed the following issues to be addressed by service commissioning bodies and providers in providing care to detained women patients:

Service commissioning bodies and service providers should agree and monitor services for women patients to ensure that such patients can:

— lock bedroom doors, using a system capable of being overridden by staff in an emergency;

— have a choice of a female key-worker;

— be in contact with other women;

— have the opportunity to take part in women-only therapy groups and social activities but have the choice of taking part in mixed groups where appropriate;

— engage safely in a full range of such activities, even where their number is small compared to the hospital population;

— have physical health checks on admission;

— have access to a female doctor for medical care;

— have access to a female member of staff at all times; and

— be assured of adequate supervision at night.

MHAC Practice Guidelines: service for women patients—(Recommendation 63, MHAC (2001) Ninth Biennial Report, Chapter 6.38)

5.3.2 In our Eighth Biennial Report (1999) we suggested to Government that services could also be required:

— to have policies relating to women's safety available on every ward and reviewed every two years;

— to identify through risk-assessment women who are particularly vulnerable to sexual exploitation or harassment and also men who have a history of harassment or violence towards women;

— to monitor all incidents of sexual harassment to identify problems in service provision;

— to ensure staff are appropriately trained in gender awareness and that safety and special needs of women patients; and

We continue to suggest such measures as elements of good practice in women's services.

Black and minority ethnic patients

5.3.3 The Commission has long stressed the overrepresentation of patients from Black and minority ethnic communities amongst the detained patient population, and the lack of equality in the provision of services to such patients. We have been pleased to work alongside the University of Central Lancashire in the recently published report for the Department of Health Engaging and Changing: Developing effective policy for the care and treatment of Black and minority ethnic detained patients[33].

5.3.4 A lack of racial harassment policies outlining how to deal with harassment between patients, as well as between staff and patients, continues to be a problem. The death of David Bennett starkly illustrates the need for effective policies in this area. Mr Bennett died in a medium secure unit having been restrained for 25 minutes, following an incident sparked by racial abuse directed at him. The coroner recognised that the lack of a racial harassment policy and procedure in the unit was a contributory factor in the events that led to his death[34]. Government has recognised generally that insufficient attention has been paid to ethnicity and gender and protection from abuse/harassment in acute mental health care[35] and has made it a minimum standard for Psychiatric Intensive Care Units and low secure units to operate "a clear policy on equal opportunities and racial harassment which all staff and patients are aware of covering staff/patient and patient/patient harassment signed up to by Trust Board and with monitoring of adherence"[36].

5.3.5 The Commission recommends that services enhance minimum standards set by Department of Health guidance by adopting the recommendation from Engaging and Changing that, alongside an establishment's anti-bullying or general harassment policies, which should include racial harassment in their scope,

Other patient-to-patient bullying or intimidation

5.3.6 We hope that effective policies that provide appropriate service responses to sexual or racial harassment of patients in inpatient surroundings will foster a wider culture of zero tolerance towards any such patient-to-patient bullying where staff intervention does not stigmatise or isolate the victim. The Commission is aware, for example, of some inner-city wards where patients are likely to be pressurised into buying illegal drugs from other patients, and has recently been informed of such an occurrence where the patient concerned was a minor.

Illicit Drug cultures within psychiatric hospitals

5.4 The culture of illicit drugs in some psychiatric inpatient units clearly poses a threat to the care and treatment of all patients resident within those units, particularly where, as we believe is often the case, vulnerable patients are exploited by drug-dealers, whether the latter are fellow-patients or persons from outside the unit (see 5.3.6. above). It is difficult to over-emphasise the distress to patients and relatives, and the demoralisation of mental health staff, caused by involuntary admissions to wards that pose such dangers.

Unregulated use of control and restraint techniques, including seclusion practice

5.5 Restraint is widely practiced across mental health services that detain patients under the 1983 Act. The Code of Practice (Chapter 19) provides a substantial list of general preventive measures that hospital managers and staff can take to reduce problem behaviour on wards and thus reduce incidences of control and restraint. Although managers must attend to issues of safety in using restraint, it is also imperative that they consider these issues so as to avoid aggressively coercive practice where possible[38].

5.6 There are clear dangers inherent in the use of restraint, as exemplified by the death of David Bennett (see 5.3.4 above). The particular dangers of positional asphyxiation in psychiatric patients may be enhanced by side effects of medication; excited delirium, prolonged struggle or exhaustion; and obesity or underlying ill health[39]. It is therefore important that patients' previous histories are well established when they are deemed at risk of requiring restraint. The dangers of seclusion are less self-evident, although the Commission is currently investigating the death of a patient whilst in seclusion in a high security hospital, and the Commission's 1995 report noted a death of a young woman patient whilst in seclusion. Both of these deaths appear to be related to the emergency administration of psychiatric drugs to the patient in seclusion.

5.7 Patients frequently react to seclusion and restraint episodes with anger and a sense of injustice, often refusing to accept the justification of the intervention after the event. Restraint episodes can be particularly distressing for patients who have suffered sexual or physical abuse and staff should be aware of such issues through patients' care-plans regarding restraint practice. It is important that patients are told as much as possible of the reasons for their restraint and/or seclusion during the intervention itself, provided with care and support immediately after an incident[40], and that the requirements of the Code of Practice regarding post-incident visits to the patient to talk about the incident and ascertain any complaints are met.

5.8 The Code of Practice requires the use of restraint to be recorded in various ways: individual patients' care-plans should state under what circumstances physical restraint should be used, what form it will take and how it will be reviewed. All episodes of such restraint should be carefully documented and reviewed. Reasons for decisions to allow physical restraint in any care-plan, and for each episode of physical restraint that takes place, should be carefully recorded in the patient's notes. The Commission recommends that policies dealing with practice issues where restraint may be used, such as policies on holding powers under sections 4, 5 or 136, should explicitly state the need for records to be made of any physical restraint.

5.9 In our Ninth Biennial Report we recommended that all services should ensure that each use of C&R is immediately reviewed, with regular audits to ensure that management and training lessons are learnt. The apparent slow take-up of the Commission suggestions appear to us to indicate further the need for statutory regulation. We have argued for the passing of new legislation to be taken as an opportunity to reconsider and strengthen advice and practice requirements relating to seclusion and restraint. Notwithstanding the fact that the Court of Appeal recently has given the Code of Practice greater legal weight (see paragraph 6 below), we believe that it is now appropriate to provide a framework of statutory regulation around these important issues. Regulations could also introduce statutory documentation for episodes of seclusion and serious restraint, both as a means of ensuring that actions and their justifications are considered and recorded, and to direct that certain actions be undertaken through requirements to record their having taken place. We have therefore suggested, in our responses to the consultations over the next Mental Health Act that new mental health legislation should provide statutory requirements and, where appropriate, limitations, in relation to the following:

— the institution, recording and monitoring of seclusion (including its duration) and time-out;

— the environment used for the purposes of seclusion;

— the provision of food and drinks and other basic amenities to patients subject to seclusion;

— the removal of clothing and/or bedding from patients subject to seclusion, and in relation to "protective" clothing/bedding;

— the use, recording and monitoring of physical restraints and in the training of staff in such procedures;

— the locking of wards;

— the qualifications of staff who institute the above; and

— the observation and care of patients who are at risk of self-harm or of harm to others.

5.10 The Commission is aware of ongoing work by the National Institute for Clinical Excellence (NICE) in reviewing research relating to the use of seclusion and restraint so as to develop practice guidelines. We look forward to the publication of NICE's draft guidelines and good practice points and to participating in the ensuing discussion over their final form. NICE's consideration of good practice guidelines will be able to draw on a raft of existing and previously issued guidelines, including:

— the current Mental Health Act Code of Practice, Chapter 19;

— the Mental Health Act Commission Ninth Biennial Report recommendations 42-45;

— the Institute of Mental Health Act Practitioners' Policy Compendium guidance on seclusion and restraint policies;

— the Royal College of Psychiatrists' 1998 report, The management of imminent violence: Clinical practice guidelines to support mental health services guidance; and

In the Commission's view, this raft of guidance requires consolidation and official sanction, so that detailed guidance with formal status and legal weight underlies statutory regulation.

Inappropriate transportation methods used for detained patients

5.11 The Commission has been made aware of some detained patients having been transported between hospitals, sometimes for considerable distances, inside private security company vans fitted with security cages and barely adequate seating. In one case a patient was driven from Bristol to London (120 miles), in another from Aintree to Darlington (140 miles). In the latter case, the van had no windows and the driver was unable to see the patient, who had no access to toilet facilities or drinking water during the non-stop journey. Prior to the journey the patient had been given a high dose of Acuphase for sedation. There were clear risks to the patient's life in such circumstances, and we consider that such procedures, where they are allowed to occur by any detaining authority responsible for a patient, will eventually lead to a death in custody. In the case described, the detaining authority accepted the Commission's representation that such arrangements were unacceptable and has changed them.

5.12 The Mental Health Act Code of Practice (Chapter 11) provides guidance on the conveyance of patients which could be strengthened under the next Mental Health Act. It may be that, following the 2003 Court of Appeal judgment discussed at paragraph 8 below, practices that fall short of the requirements of Code without good reason would already be found to be unlawful on human rights grounds.

Police intervention on psychiatric wards

5.13 Situations may arise where nursing staff require the help of the police to control or resolve incidents in hospital environments. In our Fifth Biennial Report (1993) we expressed our concern at police involvement in clinical situations, following reports of police being called to assist in giving forcible medication[45]. We continue to hear of such practices, which are surely an indictment of staffing and staff-training levels on the hospital wards concerned.

The use in emergencies of psychiatric medication with insufficient supervision or protocols

5.14 In the Commission's report Deaths of Detained Patients (December 1995), we noted, over the period 1/4/92 to 31/3/94, 10 deaths of detained patients that were secondary to prescribed medication[46]. Of these, one occurred whilst a patient was in seclusion and one whilst the patient was being physically restrained by staff. The report noted that:

The overall impression from the inquest reports was of inexperienced nurses and trainee doctors attempting to control a difficult and potentially dangerous patient outside of normal working hours without sufficient help and supervision[47].

We recommended that:

5.15 In our evidence to the on-going David Bennett Inquiry, the Commission pointed to the fact that emergency medication had been administered to Mr Bennett on the apparent authority of a nurse during the control and restraint episode in which he died. The on-call doctor had not yet arrived at the scene. Medication had therefore been administered outside of the authority of the 1983 Act, which does not allow nursing staff to authorise medication without consent, even in an emergency.

5.16 Whilst section 62 of the Mental Health Act 1983 allows for treatment that would normally require the special authorisation of a Second Opinion Appointed Doctor to be given under the direction of the RMO in an emergency, the Commission is concerned that this should not undermine safeguards to patients. In particular, individual patients' risk-assessments should take account of likely emergency situations and the appropriate response, including questions of PRN medication[50], so that such matters can be considered for inclusion in SOAD authorisations. In this way, safe upper-limits to medication might be ensured.

5.17 At paragraph 11 below we note that emerging structures of service delivery may create more frequent legal and ethical dilemmas of the kind faced by the staff involved in the incident during which David Bennett died. The 1983 Act's and Code of Practice's procedural requirements for some emergency interventions, such as that emergency treatment should be given under the direction of the RMO, or that a doctor must attend seclusion episodes, may be impossible to meet given the staffing of some units. Yet, by definition, in a genuine emergency, some sort of intervention is required and staff may be held accountable for failing to take appropriate action. We recognise this as an issue that requires Government consideration (not least in the formulation of the next Act, which shall, we trust, seek to enhance rather than lessen safeguards for patients). In our Tenth Biennial report, we will be suggesting to the Secretary of State that limitations on the use of restraint practices and seclusion in non-medical staffed units might be justified on safety grounds[51]. We consider there to be an even stronger case for non-medical staffed units to have strict policies against the giving of medication outside of limits authorised, even in an emergency, given the very great risks to patients that such practices can entail.

Dangers in ward environments: ligature points and other opportunities for suicide

5.18 Many hospitals' physical estates provide a number of hazards to patients who are at risk of self-harm or suicide. Government has recognised this and has, for instance, issued guidance on and a target for the removal of ligature points such as non-collapsible shower rails and hanging rails within wardrobes[52]. In its 2001 report on patient deaths, and in its Ninth Biennial Report of the same year, the Commission highlighted the dangers of self-strangulation rather than hanging as a method of suicide and suggested that attention must be given to a wider range of potential ligature points and hazards than had been identified in Government guidance. Commissioners continue to draw attention to weight-bearing ligature points in many services, including some that should now have been eliminated following Government guidance. The Commission has also called for staff training to take account of its findings relating to patient deaths, so that staff observing patients are aware of the dangers of self-strangulation and staff are trained in appropriate resuscitation techniques. In some older establishments, including, for example, Broadmoor Hospital, observation itself can be impeded by the physical layout of wards. This raises real concerns over patient safety.

Leave and absence without leave as opportunities for suicide

5.19 In our Ninth Biennial Report we stated that one in five detained patient deaths occurs whilst a patient is on authorised leave from hospital. One third of deaths of detained patients by suicide occurred whilst the patient was absent from hospital without leave[53]. Patients' care plans should therefore pay particular attention to the risks of leave and absence without leave with regard to every individual patient. It is likely that, in areas where bed-occupancy is over 100%, doctors are faced with difficult decisions as to which patients should be sent away on leave to free spaces, and may be forced to take more risks in granting leave than they would otherwise consider reasonable (see paragraphs 5.1-2 above). The Commission has also heard of patients being sent on leave from wards as a response to staffing shortages.

Prisons

5.20 The Commission's remit does not extend to prisons, although prisoners who are transferred to hospital under the 1983 Act fall within our purview. The Commission is extremely concerned that such transfers may often be delayed under present conditions, and that services available to seriously mentally disordered prisoners within prison are inadequate. Many prisoners awaiting transfer will be kept in physical isolation that is quite deleterious to their mental condition, with inadequate medical intervention. As a result, some prisoners are difficult to manage upon transfer and may experience further episodes of seclusion even when transferred to high secure services. The Commission is also concerned that no specialist monitoring protection is extended to prisoners undergoing treatment and/or care for mental disorder. It is beyond the Commission's scope to investigate how such prison-based care for the mentally disordered relates to deaths within prison, but we feel that such a study could be usefully undertaken.

III. THE ROLE OF HUMAN RIGHTS-BASED APPROACHES IN PREVENTING DETAINED PATIENTS' DEATHS

The place of human rights in patient safety

6. The Commission views as incontrovertible that human rights based approaches to the detention and care of psychiatric patients can play an essential role in preventing patient deaths. Clearly, emphasis on patient's right to life (Article 2) is of primary importance in healthcare interventions which involve the compulsion of vulnerable patients. Although Article 3 protections against inhuman or degrading treatment are very broadly drawn under existing case law, in conjunction with Article 8 rights to respect for physical integrity these have provided a lever for legal challenge to practices where patients have felt their rights to have been abused.

7. The Human Rights Act 1998 did not, however, only bring the lever of legal challenge closer to patients and their representatives. It also created a duty on all public authorities to operate their powers according to ECHR principles. The Commission notes the Joint Committee on Human Rights' own concerns that this aspect of the 1998 Act has only partially been implemented, and that "the high-water mark has been passed"[54]. The Commission will be highlighting this concern alongside its own observations in its Tenth Biennial Report to the Secretary of State, published in December 2003. The Commission notes that the thrust of Government policy appears to be that health and social authorities should become more locally accountable, and that this implies a lessening of prescriptive guidance from central government. We agree with the aim of encouraging nursing and other professional leadership, and the fostering of grassroots pioneers in local services to revitalise the notion of human rights as positive entitlements that are considered on a day-to-day level in service development. But, particularly in relation to the restriction of fundamental human rights as a health or safety measure on the authority of the State, the Commission views any divestiture of responsibility by Government as inappropriate, both in legal terms and in a wider ethical sense. For practitioners to attain the confidence to move beyond a defensive approach to human rights they must have the support of adequate and authoritative guidance on legal and practice issues. The Commission believes it to be the task of Government to provide authoritative guidance on the law and requirements of good practice relating to the compulsion of psychiatric patients. We are therefore pleased that the Court of Appeal took a similar view in the Munjaz case, which underlined the States' general responsibility for the treatment of those whom it has deprived of their liberty, and which we discuss below.

The Mental Health Act Code of Practice and human rights legislation

8. In the Munjaz judgment of 2003, the Court of Appeal has stated that the Mental Health Act Code of Practice is one of the positive steps that the State takes to protect the health and rights of persons deprived of liberty[55]. In part, this means that the State is responsible for ensuring that authorities exercising its powers do so in accordance with human rights principles[56], and the Code is a tool that it uses to meet this obligation. The Code can provide transparency and predictability where ECHR compliance requires this but the law is insufficiently defined[57]. The Code therefore should be afforded a status consistent with its purpose: "the State should therefore give it some teeth"[58]. The Commission's analysis of the Munjaz judgment is given below.

SECLUSION, THE ECHR AND THE CODE OF PRACTICE FOLLOWING R (ON THE APPLICATION OF COLONEL MUNJAZ) V MERSEY CARE NHS TRUST AND OTHERS; AND S V AIREDALE NHS TRUST AND OTHERS [2003]

(a) Seclusion itself is not a violation of patient's rights to protection from inhuman or degrading treatment under ECHR Article 3, although used improperly or with little regard to the patient's welfare, it could become so [paragraphs 53-55].

(b) Seclusion, by denying association and placing a patient under close surveillance, is necessarily an interference with the right to respect for private life, but one that may be justifiable under ECHR Article 8(2). To be so justified it must be operated predictably and transparently within limits set by domestic law [65].

(i) "to know enough about its patient to provide effective protection" [58]; and

(ii) to ensure that other public authorities act compatibly with the ECHR [59].

(d) The Code of Practice is one essential means by which the State undertakes its duty at 3(ii) above in respect of detention and treatment of patients under the MHA 1983. The Code of Practice:

(i) can provide transparency and predictability where ECHR compliance requires this but the law is insufficiently defined [65, 74]; and

(ii) should be afforded a status consistent with its purpose [60, 71-6].

(e) The Code should therefore be observed by all hospitals unless there is a good reason for particular departures in relation to individual patients. It is not acceptable to depart from the Code as a matter of policy, although policies may identify circumstances when such departures might be considered on a case-by-case basis [76].

(f) Seclusion that is not practiced in accordance with the Code's definition and requirements, unless it can be justified as necessary in an individual patient's case, will not meet the requirement of legality set by the ECHR. Policies that depart from the Code's guidance on an arbitrary basis may be similarly unlawful [74, 76-7].

(g) Whilst seclusion of a patient who is already detained does not engage ECHR rights to liberty under Article 5, the process of detention itself clearly does so. Where the Code deals with the processes of detention, adherence to its guidance is similarly an ECHR requirement for the hospital's policy or actions to be lawful, unless a departure from the Code's guidance can be shown to have been necessary in a particular case [70,74].

(h) It is therefore possible for a hospital's actions or policies to be in unlawful breach of the Mental Health Act Code of Practice on issues that engage ECHR issues [77].

9. We hope that Government will now reconsider its approach towards Codes of Practice in mental health legislation, and ensure that they are given a clear status under statute that reflects the position reached through judicial challenge. Both the draft Mental Health Bill of 2002 (clause 1) and the Mental Incapacity Bill (clause 30) provide only that professionals must "have regard to" the respective Codes of Practice. We believe that this reflects a legal position pre-Munjaz, and that more emphatic language would now be appropriate. This is not to say that we want the Code necessarily to be statutorily binding on authorities where there are good reasons for departure from its guidance based upon an individual's situation. If authorities are to be forced to follow the Code to the letter irrespective of circumstance then the distinction between the Code and primary legislation would be lost. In our response to the Mental Health Legislation Review Team (1999) we expressed our concern that providing statutory weight to a Code of Practice would be likely to water-down its provisions until they were a set of minimum standards, rather than a guide to good practice[59]. It may be that the precedent of section 7 of the Local Authority Social Services Act 1970, which obliges social services authorities to act under the general guidance given by the Secretary of State, could provide a model for legislation that gives a Code "teeth" in the sense required by the Court of Appeal.

Creating and maintaining a human rights focus in developing psychiatric services

10. There remains much to do to bring about a psychiatric service that fully respects human rights values. Patients are still compelled to reside on wards that are acknowledged by those responsible for them to be substandard, frightening and even dangerous. The majority of patients who are compelled to reside on such wards are subject to such compulsion for reasons of their own health or safety. The Commission considers it possible that the courts will, at some point, accept a human rights-based challenge to the lawfulness of such a detention on the grounds that the services provided under compulsion have neither addressed nor provided for the health or safety of the patient concerned.

11. The Commission understands and welcomes the apparent intention of Government to make mental health care "a little less institutional and a little more diverse" through the provision of smaller inpatient units with closer links to the community[60]. It is easy to see how such a service could solve some of the most obvious problems inherent in acute inpatient care as presently organised and as discussed at paragraphs 5.1-5.4 above. There are, however, particular and perhaps obvious risks inherent in having physically decentralised structures of smaller inpatient units operating powers of compulsion on behalf of the State. One such risk is the spreading of available medical and other expertise too thinly, so that no inpatient units could realistically have immediate access to a doctor when emergencies arise. Where patients are detained for their own safety, this may raise a similar ethical and potential legal dilemma to that faced by mental health professionals whose admission wards fall below acceptable standards under the current system. Similar issues relating to economies of scale pose other challenges. Staff who are given powers of coercion (and the responsibilities that go with such powers, from using them appropriately to being held accountable when things go wrong) must of course be allowed appropriate resources, human and otherwise, to carry them out effectively. For example, Mental Health NHS Trusts and large Independent Hospitals usually now employ a Mental Health Act administrator to ensure that legal powers and duties of compulsion are operated and documented correctly. Where such employees establish an effective foothold within their organisation, their work can have marked benefits for the treatment and safety of patients. Although it is perhaps likely that some shared managerial structures, such as the increasingly large NHS Trusts of today, will allow for such posts to continue, isolated units may not have sufficient resources.

12. A less obvious risk of decentralised structures, and indeed the potential converse of positive attempts to make the provision of mental health services "patient-centred", is what a "less institutional" framework could mean for the practice of compulsion. The danger of emphasising the need for less formal structures of care is that these may disguise or detract from underlying realities of coercion. The Commission has, in previous submissions to the JCHR, expressed our concern over patients who, under current mental health legislation, are de facto detained in hospitals with none of the protections of the law, including our oversight and monitoring. We have similar concerns that, under envisaged structures of mental health care, and in the absence of sufficient central guidance and monitoring, laudable aims of less formality with greater immediacy of response and availability of appropriate care could lead, in practice, to the casual and unregulated application of powers of coercion. We believe that this would increase the dangers to patients, not only of arbitrary and unfair interference with their rights, but of dangerous or potentially abusive practice.

Regulation of specific areas of compulsion

13. The Department of Health has acknowledged that authorities treating patients under compulsion acquire reciprocal duties to ensure that their care is provided safely and in accordance with good practice. Whilst we would agree that "higher levels of risk [and] loss of liberty suggest a greater need for clinical audit and monitoring than usual, with particular attention paid to areas such as: observation; seclusion; restraint and rapid tranquillisation"[61] we suggest that Government should itself seek to ensure that issues such as seclusion and restraint are operated on its behalf in ways that are safe and appropriate. Following the Munjaz judgment of 2003, discussed above, the Code of Practice can be used to provide practical guidance that will be generally binding on authorities. We suggest, in addition to such guidance in a Code of Practice, that Government should take the opportunity of new legislation to consider statutory regulation of aspects of particularly invasive or contentious practices. Such regulation could, at the very least, institute record keeping and reporting requirements utilising statutory documentation. It could also ensure training standards in relation to, for example, the physical restraint of patients, and introduce safeguards in relation to certain treatments, such as naso-gastric feeding of anorectic patients, or following rapid tranquilisation of any patient, etc. We also suggest that core requirements regarding seclusion practice (such as particular triggers for multidisciplinary review and particular reporting procedures) could be given unequivocal legal force by use of secondary legislation under a new Act.

The framework of compulsion under the Draft Mental Health Bill proposals of 2002

14. Although the draft Mental Health Bill of 2002 proposed powers that would compel patients to accept psychiatric treatment without consent in the community, it does so at the expense of existing supervisory powers applicable to community-based patients under the 1983 Act's Guardianship and Supervised Discharge provisions. It seems likely that patients who are subject to these relatively weak powers of coercion (which allow for the specification of a place of residence, access for medical and social care professionals and for the patient to attend at certain places) could drop out of the view of authorities. Although the numbers of patients currently subject to these powers is small (slightly less than 1,000 patients would seem to be subject to Guardianship at any one time), it may be that the next Mental Health Act, by replacing Guardianship and supervised discharge with powers of community treatment, will reduce the protection for vulnerable persons in the community who do not meet the threshold for the imposition of these more far-reaching powers. It may be that a reconsideration of a form of Guardianship under the next Act could address the reasons for its low usage and so provide supportive supervision of patients in the community who do not meet the criteria for non-consensual treatment.

A human rights culture in the coercion of psychiatric patients

15. In our Tenth Biennial Report[62], the Commission acknowledges that a culture of human rights cannot be imposed upon services from above, but that Government nevertheless has an important role in establishing the boundaries within which services work. By establishing such ground-rules, and by doing so with a particular regard to human rights issues, Government can at least partially fulfill its obligation to ensure that powers used in its name are implemented in accordance with principles of the European Convention.

16. In our view, the safety of patients similarly cannot be imposed through increased physical safety measures without an equal emphasis on "relational security". Relational security "begins with the patient and is essentially concerned with detailed knowledge of the patients and their situation it will extend to relationships and professional agencies outside the hospital, so that although the institutional boundaries are very definite, effective security can often have its roots in the community. The provision of education, rehabilitation and pastoral facilities as well as leisure and social activities all have an important part to play"[63]. Relational security is therefore grounded on the fair and decent treatment of patients, which is best assured by a human rights-based approach that is vigilant towards potentially dehumanising or infantilising aspects of care under compulsion. Whilst, therefore, the Commission has particular concerns over those aspects of mental health care outlined above as causative factors in patient deaths, to really improve patients' experiences of safe and supportive care these concerns must be addressed within a holistic, human-rights based approach to all aspects of mental healthcare.

15 September 2003

23 Mental Health Act Commission (2001) Deaths of Detained patients in England and Wales; a report by the Mental Health Act Commission on information collected from 1 February 1997 to 31 January 2000. Nottingham: MHAC. March 2001. p 8. Back

24 In our Deaths of Detained patients report (MHAC 2001, paragraphs 81-85), we note that various load-bearing supports, not all of which would allow for suspension, were involved in deaths classified as "hangings" at inquest. This is further discussed at paragraph 5.18 below. Back

25 Source: Mental Heath Act Commission (2001) Deaths of Detained Patients in England and Wales (ibid) Chart 14. This table excludes 20 deaths whose cause was unknown at the time of the study. Back

26 Banerjee S, Bingley W and Murphy E (1995) Deaths of Detained Patients: a review of reports to the Mental Health Act Commission. A joint report of the Mental Health Act Commission and the Division of Psychiatry, United Medical and Dental Schools of Guy's & St Thomas' Hospitals, London: Mental Health Foundation, December 1995. p 19. Back

27 Department of Health (2002) Cases for Change, Introduction. National Institute for Mental Health, England. p 6. Back

28 Department of Health (2002) Mental Health Policy Implementation Guide: National Minimum Standards for General Adult Services in Psychiatric Intensive Care Units (PICU) and Low Secure Units; Department of Health (2002) Mental Health Policy Implementation Guide: Adult Acute Inpatient Care Provision. Back

29 Mental Health Act Commission (2001) Deaths of Detained patients in England and Wales (ibid) paragraph 49. Back

30 Mental Health Act Commission (2001) Ninth Biennial Report 1999-2001, London: Stationery Office. Chapter 6.33 et seq. Back

31 Department of Health, personal communication to Mental Health Act Commission. Back

32 Mental Health Act Commission (1999) Eighth Biennial Report 1997-99, London: Stationery Office. Chapter 10.72. Back

33 Department of Health (2003) Engaging and Changing: Developing effective policy for the care and treatment of Black and minority ethnic detained patients, London: National Institute for Mental Health in England, UCLAN & Mental health Act Commission. Back