Protecting people's rights under the Mental Health Act

The challenges faced by providers in protecting people's rights under the MHA

We have a duty under the Mental Health Act 1983 (MHA) to monitor how services exercise their powers and discharge their duties when people are detained in hospital or are subject to community treatment orders or guardianship. To do this under the current COVID-19 restrictions, since 8 April we have been using a new remote method of monitoring individual mental health wards. This has included collecting data from a range of people via phone, email or video calls. We have also spoken with patients and their families and carers by phone or online to identify, support or seek response to the new challenges impacting patients, such as visits by families and carers, blanket restrictions and decision making.

We have seen how the pandemic and related restrictions have created challenges for providers of mental health care, requiring them to balance the need to keep people safe from the virus with their duty to meet the requirements of the MHA, ensuring that they are upholding people’s human rights.

For people with severe mental health conditions, we have seen examples where COVID-19 has resulted in delayed discharges into community placements, and also of community placements no longer being available, for example care homes and residential schools being closed to admissions. This is a particular concern for people with a learning disability and/or autistic people, who may end up staying in hospital due to the unavailability of community placements.

What’s the current picture?

From the new remote monitoring carried out so far, we have found some examples of providers giving good support to their patients. This includes:

• Helping people to access family and friends and informal support networks, by providing them with digital devices for video calling and contact – patients have been very appreciative of this where it has been facilitated well.
• Providers proactively arranging for advocacy services to be brought into wards in a remote way, for example by ‘walking’ an advocate round a ward on a tablet screen in order to engage patients ‘on the spot’. Some face-to-face advocacy meetings are now taking place.
• Providers arranging remote contact with other support services, for example, interpreters.
• Providers arranging for family members to be involved in care planning meetings.

However, a key challenge for providers has been maintaining a safe environment – managing the need to socially distance or isolate people due to COVID-19 – while also maintaining a therapeutic environment. As wards are often unsuitable environments in which to socially distance, this has increased the risk of segregation and seclusion. Some hospitals have created cohort wards for suspected COVID-19 patients. With access to testing for all now available, new admissions can be safely integrated onto wards as soon as test results are obtained, although services still have to manage keeping patients apart while awaiting test results, or if they test positive. We have encouraged services to ensure that patients in isolation have adequate staff contact and support, as well as access to activities and to fresh air.

In hospitals, we saw examples of patients’ leave being cancelled or restrictions placed on their movements, as well as limits on visits from friends and family, in line with government COVID-19 advice. Cancelled leave and restrictions on movements, including visits from loved ones, can increase the risk of closed cultures developing. We have seen examples of services managing this challenge well, with increased mobile phone access and the use of video calling. However, some patients have expressed concern that restrictions on communicating with families will increase once the crisis is over. While we do not think this will happen, we will continue to work with services to challenge any increase in restrictions.

Where we have found immediate concerns, we have been working to ensure any rules put in place are proportionate and in line with the MHA Code of Practice and any emerging national guidance to support people during COVID-19. We have also been sharing information from our MHA work with NHS England/ NHS Improvement and the Department for Health and Social Care to help inform the development of guidance, making sure the minimum restrictions necessary are required and human rights are protected for people subject to the Act.

Section 6: Our data from this issue