Use of Force in Mental Health Units - Impact of New Legislation?

Published 1 febrero 2019

With the push to minimise use of patient restraint in the mental health context remaining high on the government and CQC agenda, there is now legislation in place which specifically addresses this.

The Mental Health Units (Use of Force) Act 2018 was given Royal Assent on 1 November 2018.  

Once the Act’s provisions come into force, mental health inpatient units will have to comply with new requirements around use of force policies, training and data collection.

Whilst - in practice - most mental health providers are likely to be complying with many of these requirements already, there are steps which organisations can be taking now to ensure they are ready for when the Act comes into force.

We look in more detail at this new legislation and its practical impact.

Context

The Mental Health Units (Use of Force) Act 2018 started life as a bill put forward by an MP following the death of one of his constituents after being restrained on a mental health ward by 11 police officers.

An inquest into the death found that the restraint used was excessive and disproportionate and the patient’s family subsequently campaigned to bring in new laws about use of force, culminating in this new piece of legislation.

What does the Act require?

When it comes into force, the Act will place new statutory obligations on inpatient mental health units - including NHS hospitals and independent sector units which may provide NHS-funded services.

‘Responsible person’

A central pillar of the Act is the concept of organisations which run mental health units having to appoint a ‘responsible person’ for the purposes of the Act, in order to increase accountability in relation to use of force.

The ‘responsible person’ must be of an appropriate level of seniority and will have responsibility for ensuring compliance with the Act’s requirements as set out below.   Whilst they will be able to delegate any of their functions to another person (also of an ‘appropriate level of seniority’), the ‘responsible person’ will retain ultimate responsibility.

Policy

All organisations running mental health units must publish (and keep under review) a policy on use of force by staff.  

Importantly, this policy must set out what steps will be taken to reduce the use of force by mental health unit staff.

Little further detail is provided in the Act itself about what such policies must contain, but there is a provision requiring the Secretary of State for Health and Social Care to publish guidance to accompany the Act, which may put more flesh on the bones when it comes.

Rights information

As soon as reasonably practicable after admission, each patient must be given information about their rights in relation to use of force by staff.

The Act does not, however, give any detail about what that information should cover. Again, the yet-to-be-published accompanying guidance may assist with this.

Training

Mental health unit staff must be provided with training on appropriate use of force.

There is considerably more detail here, with the Act including a list of topics which must be covered in use of force training, such as:

• Techniques for avoiding/reducing use of force
• Risks associated with use of force
• Impact of any use of force on a patient’s mental and physical health
• How to involve patients in the planning, development and delivery of their care

If existing training covers the areas listed in the Act (which we anticipate it will in many cases), staff who have received that training sufficiently recently prior to this provision coming into force will not have to do the training again until such time as a refresher is due.

Record-keeping

There must be a record kept (for 3 years) of any use of force by staff which is more than ‘negligible’ (with the meaning of ‘negligible’ to be further defined in the accompanying guidance).

The Act includes a detailed list of information which must be recorded in each case, including the reason for use of force, the date/place/duration of it, whether it formed part of the patient’s care plan, the outcome of the use of force, efforts made to avoid it, whether any notification regarding use of force was sent to the person (if any) to be notified under the care plan, plus the patient’s ‘relevant characteristics’ (if known), such as their sex, age, race, religion/beliefs and sexual orientation.

Incident investigation

If a patient in a mental health unit dies or suffers a serious injury in connection with use of force, regard must be had to guidance relating to the investigation of such incidents.  

In practice, this will mean complying with the national Serious Incident Framework (which is currently being re-vamped, with the new version due for publication this Spring), plus CQC reporting requirements, which should already be happening regardless of the new Act.

Statistics

The information which mental health units are required to collect about use of force (see above) must be published each year in statistical form.

Annual report

The Secretary of State for Health and Social Care must review any ‘Prevention of Future Deaths’ reports relating to use of restraint which have been produced by coroners in the previous year, plus he may review any other findings made in such cases - e.g. by the CQC or as part of serious incident investigations. Conclusions from these reviews must be published in the form of an annual report.

Police body cameras…

Finally, the Act requires that, if a police officer attends a mental health unit on duty and is involved in assisting staff at the unit, the officer must wear a body camera and keep it operating at all times when reasonably practicable unless there are special circumstances at the time that justify not doing so.

Whilst one can envisage use of police body cameras being a potentially useful deterrent to the use of excessive force as well as providing evidence to support investigations into what happened and why, further guidance would be helpful on matters such as how patient confidentiality would be protected and what any video footage could and could not subsequently be used for.

Practical Impact?

The Act itself does not carry any specific penalties for non-compliance.   However, failure to comply with its provisions could amount to a breach of the provider organisation’s statutory obligations and, as such, could potentially be subject to challenge via judicial review.

In practice, however, mental health providers are likely to be meeting the majority of the Act’s requirements already because they are in line with existing CQC requirements around restrictive practices in mental health - e.g. the CQC already expects providers to have in place a detailed policy aimed at minimising use of restraint, effective staff training and robust record-keeping/data collection around this.

As a result, organisations that are CQC-compliant are likely to find that they are also already broadly compliant with the new Act, but provisions such as the responsible person requirement will be new. In addition, the existence of new legislation focusing specifically on this issue is likely to raise public and patient awareness and increase scrutiny in this area.

What should your organisation be doing?

There are a number of practical steps which organisations running mental health units could be taking now to ensure they are ready for when this new legislation comes into force, including:

• Consider who in your organisation would be the appropriate ‘responsible person’ under the Act and familiarise them with what will be required of them under the Act;
  
  
• Review your existing use of force/control & restraint policy to ensure it reflects the provisions of the Act (although it is likely that more detail on what such policies should cover will be provided in the anticipated accompanying guidance);
  
  
• Review the training your organisation already provides to staff on use of force and check that it covers the areas listed in the Act;
  
  
• Check the systems currently in place for recording information about all uses of force by staff to ensure these are sufficiently robust to fulfil the data collection/statistical reporting requirements in the Act.

What next?

The next step will be for the government to produce regulations bringing the Act’s provisions into force. We are not aware of the timescale for that currently.

Ahead of that, we await a draft of the guidance which the Act says must be produced (and consulted on) to accompany the legislative provisions.

Meanwhile, the issue of reducing use of restrictive practices remains high on the national agenda, with the CQC recently having launched a thematic review about the use of restraint, prolonged seclusion and segregation for people with mental health problems, a learning disability and/or autism. The CQC says this review will look at the range of factors that lead to restrictive practices and the extent to which services follow best practice in minimising the need to use force. The review’s interim findings are expected in May 2019, with a full report due by March 2020.

How we can help

Our national team of mental health and mental capacity specialists have extensive experience in advising health and social care providers - both in the NHS and the independent sector - in relation to all aspects of the law in this area, including:

• Advice on all aspects of the Mental Health Act, including the impact of legislative changes;
  
  
• Advice on drafting and implementing policies that are compliant with legislative change and will withstand regulatory scrutiny;
  
  
• Support with investigation of serious incidents, including those relating to use of restraint;
  
  
• Advice on the interface between the Mental Capacity Act and Mental Health Act;
  
  
• Support in relation to CQC inspections and enforcement actions.
  
  

We also provide training on all aspects of the Mental Health Act and Mental Capacity Act, including induction and refresher courses for s.12 Approved Clinicians.