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Published 13 enero 2022
From 31 March 2022, new statutory obligations aimed at preventing inappropriate use of force will apply to organisations running inpatient mental health units, including NHS Trusts and independent sector organisations that provide NHS-funded care.
With this start date now fast-approaching, organisations need to satisfy themselves that they will meet all the new requirements. Failure to comply fully could lead to scrutiny from the courts, commissioners and/or the CQC.
In this briefing, we look at some of the key questions organisations need to be asking themselves ahead of the new rules coming into effect.
Is your organisation ready?
In preparation for the new legal obligations due to come into effect on 31 March 2022 about the use of force by staff in mental health units, NHS Trusts and independent sector organisations providing NHS-funded care will need to consider the detail of what is required as set out in the Mental Health Units (Use of Force) Act (‘the Act’) and the accompanying statutory guidance (‘the Guidance’).
Departures from the Guidance could lead to legal challenge. The CQC will also have regard to the Guidance when considering whether providers meet its regulatory requirements, plus commissioners will look to ensure that the services they commission are consistent with it.
‘Use of force’ under these provisions includes restraint (whether physical, mechanical or chemical) and isolation (including seclusion and segregation). The requirements will apply to all patients in mental health units, whether detained or not.
Key questions for organisations to be asking themselves now include:
One of the central provisions in the Act is an obligation on organisations that run inpatient mental health units to appoint a ‘responsible person’ whose role will be to ensure compliance with the use of force requirements.
This does not have to be a new appointment, but must be someone at an appropriate level of seniority - for example, the organisation’s Chief Nursing Officer or Medical Director. Although they can delegate functions to another person, the responsible person remains ultimately accountable for the organisation’s compliance with new legal framework.
Whoever is appointed as ‘responsible person’ will need to ensure they fully understand what the law requires of them, including their responsibilities in ensuring compliance with the rules on use of force policies and staff training.
The Act requires organisations running inpatient mental health units to publish a policy on use of force by staff who work on those units, setting out the steps being taken to reduce and minimise the use of force.
There are numerous specific requirements in the Guidance about what use of force policies should include, such as details of the types of force/specific techniques staff may use for different patient groups and details of how patients/families/carers/advocates will be involved in care planning that sets out preventative strategies to the use of force.
The Guidance states that, where an organisation has an existing policy on use of force, this may be updated to ensure that it complies with the requirements in the Act and Guidance.
The Act requires that, as soon as reasonably practicable after admission to a mental health unit, each patient must be given information about their rights in relation to the use of force by staff who work in that unit.
The Guidance sets out a long list of what the information provided to patients should, as a minimum, include - for example, which staff may use force in what limited circumstances and what approaches will be taken to avoid it.
Organisations will need to check that the information given to patients on use of force covers off all the points set out in the Guidance.
The Act provides that mental health unit staff must be provided with training on the appropriate use of force. It lists 11 topics that must be covered as part of this training - for example, techniques for avoiding/reducing use of force and the impact of use of force on a patient’s mental and physical health. The Guidance then fleshes out in a lot of detail what the training should include within each of those topic areas.
Organisations will need to consider these detailed training requirements carefully to make sure the training it provides its staff covers all the required areas.
The Guidance indicates that training which is certified to comply with RRN (Restraint Reduction Network) standards should meet the requirements in the Act/Guidance.
In terms of the practicalities of implementing this, if the responsible person considers that staff have received existing use of force training of an equivalent standard sufficiently recently prior to the start of these new provisions, those staff will not have to do the training again until a refresher is due. If in doubt as to whether previous training was adequate or sufficiently recent, however, the responsible person should err on the side of caution and ensure that further training is provided.
Under the Act, a record must be kept (for 3 years) of any use of force by staff that is more than ‘negligible’.
The Act also gives a list of information which must be recorded in each case, such as the reason for the use of force, whether it formed part of the patient’s care plan and efforts made to avoid it. The Guidance builds on this by providing further details about what needs to be recorded.
One of the challenges here will be to understand when use of force may legitimately be classed as ‘negligible’, therefore falling outside the duty to record. The Guidance attempts to explain this, emphasising that use of force will only be ‘negligible’ in a ‘very small set of circumstances’ - specifically, where it is the minimum necessary to carry out therapeutic or caring activities as part of the patient’s care plan and, only then, if it falls outside the circumstances set out in the Guidance where use of force can never be considered negligible - e.g. if the patient verbally or physically resists the contact of a member of staff.
What needs to be done?
Given the existing requirements imposed by the CQC and commissioners in relation to matters such as training, reporting and record-keeping around use of force, it is likely that most organisations running mental health units will - in practice - already be compliant with much of the Act and the Guidance.
However, the fact that these requirements are now enshrined in separate legislation, together with the specific obligations around publishing use of force policies and ensuring people know their rights in relation to use of force, are likely to require some changes to practice and further increase public awareness and levels of scrutiny in this area.
Given that this legislation has been waiting in the wings for some time now, organisations may already have taken steps to check their compliance against the requirements of the Act, but now that the operational detail has been finalised in the Guidance and we have an imminent start date, organisations should be making final checks and ensuring that staff at all levels are aware of the upcoming changes and when they are coming into effect.
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:
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.
+44 (0)191 404 4045
+44 (0) 117 918 2744
+44 (0)113 251 4763
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