This article sets out some thoughts about the Mental Health Act in relation to the 2gether Trust, the mental health trust for Gloucestershire and Herefordshire. I’ve had to limit some of my findings to Gloucestershire for lack of time. Although in many ways the operation of the Mental Health Act in Gloucestershire is unremarkable, I have three areas of concern.
If you only want to know what my concerns are, you can skip this introduction.
The Mental Health Act 1983 (PDF, 143 pages), which I’ll refer to as the MHA or the Act, was later significantly amended by the Mental Health Act 2007 (PDF, 168 pages). In practice it meshes with the Mental Capacity Act 2005 (PDF, 88 pages, the MCA), and with other legislation, such as human rights legislation.
Altogether it’s a complex and wide-ranging legal framework. The thing about the Act that generates the most interest is that it sets out the circumstances in which people can be treated against their will for mental disorders, including being detained by police and detained in hospital.
Being detained in these ways is commonly referred to as being “sectioned”, because the circumstances of any detention are set out in one or other section of the Act. For example, someone might be compulsorily admitted to hospital for assessment under section 2 of the Act, commonly abbreviated to “s2”.
Because of the complexity and the serious implications of the legislation, there’s a helpful official Code of Practice for the MHA (PDF, 394 pages) that explains to everyone what to do. The MCA has its own Code of Practice (PDF, 301 pages).
The Care Quality Commission (CQC) has a responsibility to monitor the use of the Act, and recently it has produced annual reports on its findings. The latest is Monitoring the Mental Health Act in 2011/12 (108 pages). Unlike the other hefty documents that I’ve provided links to above, this one is actually quite readable, especially the Key Findings sections at the start of each chapter.
Another of the CQC’s roles in relation to the Act is that specialist CQC Mental Health Act Commissioners in each area of the country oversee the operation of the Act quite closely, working with providers of mental health care at Board level, with managers and clinicians, and with patients, to ensure adherence to the Act and its Code of Practice.
The management of people who are seriously mentally ill is not just a matter for the mental health trust. Police, social services, the ambulance service, A&E, and others may be involved. So there are local joint agreements on policy and procedure relating to the Act.
In Gloucestershire, there are joint agreements are between the 2gether Trust, Gloucestershire Hospitals NHS Foundation Trust, Gloucestershire Constabulary and Gloucestershire County Council, but they’re hard to get hold of. The County Council publishes a collection of Policies relating to the Mental Health Act 1983, but it is not clear that they are up to date.
Finally, in the 2gether Trust, there is a Mental Health Act Scrutiny Committee, a subcommittee of the Board, which oversees the operation of the Act within the Trust and reports to public Board meetings up to six times a year. Some of these reports are published as part of the papers for public Board meetings.
So the operation of the Act within the Trust is in part determined and overseen nationally, in part at county level, and in part within the Trust itself.
The operation of the Act within 2gether
As far as I can tell, the operation of the Act within 2gether is unremarkable. There are occasional slip-ups as one might expect dealing with difficult illnesses in the context of a complex legal framework. There are also some controversies, but they tend to be national controversies reflected in local practice, rather than being peculiar to 2gether.
One of the national controversies, for example, is around the use of section 17A (introduced in the 2007 Act). This section allows for compulsory treatment in the community, instead of detention in hospital or leave of absence from detention, through the use of Community Treatment Orders (CTOs, also known as Supervised Community Treatment, SCT). However, doctors have the final decision on whether to use a CTO, and there is wide variation in the use of CTOs from doctor to doctor and from hospital to hospital. This wide variation is reflected within 2gether.
Other issues considered by 2gether’s MHA Scrutiny Committee also broadly reflect national difficulties with the Act. In the CQC’s annual report, many of the key findings are that information of one sort or another is not always properly recorded, so that there is not always a clear record showing that the proper procedures have been followed. This is the case in 2gether, too.
Consent to treatment is one example. In May’s meeting the Committee reported that in the Trust:
Capacity and consent – the Commissioner acknowledged the efforts made by the Trust, but noted that…recorded evidence of consultees’ discussions remained patchy.
This reflects the CQC’s national finding (p. 67) that:
…in almost half of cases there was no evidence that doctors had talked to patients about whether they consented to proposed treatment.
Of course, the schoolboy excuse, “But, Sir! All the other boys were doing it too!” is no excuse at all, and I do not mean to excuse the Trust for being criticised in May for something the CQC had publicised as a national problem in January. This relates to one of my concerns about the operation of the Act in Gloucestershire, and I’ll return to it below.
The Trust’s MHA Scrutiny Committee
The first of my concerns is about the role of the Trust’s MHA Scrutiny Committee. Its reports do not appear to show a committee operating at Board level. Rather, the Committee appears to achieve very little other than dabble in management.
For example, in the May meeting one of the Committee’s achievements was to give matrons the task of ensuring that a certain kind of form is always attached to a certain kind of record card. In January the Committee requested certain alterations to another form. The rest of the Committee’s time appears to be taken up with receiving reports and “noting” them, and with agreeing to various things that other people have already suggested. I very much doubt whether this is useful and appropriate activity for directors.
Furthermore, the Committee regularly reports to full Board meetings. I very much doubt whether the operation of the Act, supported as it is by a very comprehensive Code of Practice and the expert guidance of the Commissioner, warrants this amount of the Board’s time and attention.
Contrast the Board’s approach to psychotherapy, colloquially “talking therapy”. In the CQC’s last report on community mental health, the 2gether Trust was rated the worst in England for the talking therapy it provides. Meanwhile the Trust’s flagship “Let’s Talk” service in Gloucestershire (part of the national IAPT programme) failed to achieve locally agreed targets throughout last year, and is on commissioners’ risk register this year, the risk being stated as:
Commissioned services do not deliver population access, waiting times or outcomes as per national expectations
Yet there’s no Psychotherapy Scrutiny Committee receiving reports, “noting” them, and dabbling in the management of talking therapy, and there’s no regular psychotherapy item on Board agendas.
The Board’s priorities seem to make little sense.
The second of my concerns is transparency. Aspects of the operation of the Act in Gloucestershire are subject to various local agreements, but these local agreements are difficult or impossible for the public to find. Versions of them that can be found on the Internet are mostly (or perhaps entirely) out of date.
This means, for example, that a member of the public who is concerned about whether procedures have been correctly followed cannot simply search the Internet or go into a public library and find out. If any information at all can be obtained that way, it is very likely to be wrong.
For example, in March the Trust’s MHA Scrutiny Committee reported that, in relation to Section 136 of the Act:
An amended policy will now be produced and, following formal ratification by police, ambulance, Local Authority and Hospital’s Trust, will come into force.
But this amended policy has apparently never been made public. Patients, carers, family members and possibly even advocates are left in the dark about what the current local policies are. It’s the same with all the locally agreed policies.
All the public bodies that are party to these agreements should, in my view, ensure that current information, and only current information, is publicly available.
The third of my concerns is consistency between local agreements and the Act, taken together with its Code of Practice. Much of the text of local agreements repeats the text of the Code of Practice, but it can be subtly reworded in ways that change the meaning. The result is that staff following a local agreement to the letter may be in breach of the Code of Practice, or even of the Act itself.
The recent BBC Panorama documentary, Locked Up For Being Ill?, illustrated some of the issues around s136 of the Act, and they are explained in much more detail by the excellent police blogger, Mental Health Cop, initially in an article entitled Panorama, then in follow-up articles including, Locked Up for Being Ill, and most recently, Reducing Section 136 Usage.
An example from the Code of Practice (10.17) is:
…hospital or ambulance transport will generally be preferable to police transport, which should be used exceptionally, such as in cases of extreme urgency or where there is a risk of violence);
And a further example is (10.21):
A police station should be used as a place of safety only on an exceptional basis…
The concern here is that because of lack of transparency around local agreements in Gloucestershire, and lack of adequate reporting, it is far from clear whether these requirements of the Code are being met. Indications from the outdated local agreements that are available to the public are that, in practice, patients detained under s136 in Gloucestershire may be transported by police to police custody in the first instance, and only then possibly transferred by ambulance to Gloucestershire’s designated place of safety, the Maxwell Suite in Gloucester.
Add in the numbers of people known to be mentally ill, and who are arrested by police and taken into custody without invoking s136 at all, and the picture emerges of a widespread breakdown in community mental health, concealed by the relatively low numbers of patients reaching the designated place of safety to be counted in 2gether’s reports. How true this picture is needs to be made public through monthly statistics from all the public bodies that are parties to local agreements on the use of the Act.
It’s disappointing that the Trust’s Mental Health Act Scrutiny Committee does not appear to be playing a useful part in ensuring consistency with the Code, or in opening up the use of the Act to public view.