At one health-based place of safety based in a psychiatric intensive care unit, approved mental health professionals (AMHPs) would only start the assessment once they had identified a potential bed for admission. On the basis of our comments, which expressed concern that this was both a cause of unnecessary delay and assumed that the person would need to be admitted to hospital after assessment, the trust raised this with the local authority. We received assurances that this was not a policy position and any further incidents would be reported to AMHP leads by health staff. The local authority stated that it would aim for an AMHP to attend within three hours of notification, and would establish a reporting system for any occasion when attendance exceeds four hours.
Discharge planning and aftercare
arrangements are another area of the Code where local care planning arrangements and joint agency working must be effective. If not, they will have significant impact on patient outcomes, resulting in longer stays in hospital or risking repeat admissions where appropriate arrangements have not been put in place. We have noted our concerns about providers ensuring discharge plans are in place for patients.
In 2014/15, our Mental Health Act Reviewers required 11 specific actions to be taken by providers relating to delayed discharges for detained patients, both back to the community but also between service types such as children’s service to adult. Our findings include examples where providers have had difficulties in discharging patients because of reasons outside their control, for example having to negotiate with commissioning bodies or other provider agencies to ensure appropriate community service support or identify step-down beds for patients.
Hospital managers’ discharge power
Chapter 38 of the Code gives providers guidance on exercising their power to
discharge patients from section. The power is usually delegated to a committee of people appointed specifically for this purpose by the provider, who cannot be employees or, in the case of independent providers, have a financial interest in the organisation. The ‘managers’ panels’ may carry out reviews of patients’ care and circumstances at any time, including at the point of renewal or following a request for discharge from detention by the patient or their nearest relative. Providers are expected to work with the people they have appointed to this role to be clear they understand their responsibilities and the working of the Act to make sure that they are providing patients with a fair, reasonable and lawful hearing before making their decision.
The Code states that ideally this should take place before the renewal date, although the clinician’s report will provide authority for continuing detention if the panel meets after the period of detention ends.† There are
negative impacts for patients if the process is delayed. This includes limiting the ability to empower patients to feel involved in the renewal of their detention or seeking the involvement of others at the hearing such as relatives, carers, Independent Mental Health Advocates (IMHAs) or legal representatives. To ensure positive outcomes can be achieved services should arrange the hearings before, or as close as possible to, the renewal date. However, we have found examples where the panel meeting had not taken place for up to three months after the renewal date, which is unacceptable. The revised Code of Practice states that a failure to do this ‘is a very serious matter’ and, as such, it should be reported to CQC as a serious incident.§
We do not agree that a failure to hold the hearing warrants a serious incident to CQC because the patient’s detention remains lawful if the Responsible Clinician’s report is completed. However, it is good practice, therefore local systems should monitor how often this is achieved and seek to remove any challenges to hearings being planned before the renewal date.
Even though it is not a legal requirement, we expect well-led providers to have systems in place that consider the renewal before the end of the period of detention or CTO and involve patients fully in the process.¶ This
would include explaining to patients if their hearing needs to take place after the renewal date and ensuring they are supported by others, such as an IMHA, as required.
† MHA Code of Practice (2008), paragraph 31.13 and MHA Code of Practice (2015) paragraph 38.14
§ MHA Code of Practice (2015), paragraph 38.50 ¶ MHA Code of Practice (2015), paragraphs 38.14
Our challenge to services
Providers need to ensure that they have embedded the learning from our Right here, right
now report on crisis care into their health-based places of safety practices and review how local
partnership agreements are meeting the requirements of the revised Code. This includes having a clear framework for collecting, analysing and sharing outcomes data from the use of police powers. Hospital managers should have systems in place that support holding managers’ hearings before
renewal date or monitor the reasons when this cannot be done, ensuring steps are in place to allow patients, families, carers and others an opportunity to be fully involved in the process.
The Tribunal
The First-tier Tribunal (Mental Health) is the primary route of appeal against the use of the MHA’s powers for detention and community treatment order. It is an independent judicial body and we look at the way providers are supporting patients to appeal to the Tribunal, prepare for their hearings and make sure that they are involved throughout the process. By doing this, we can highlight a number of areas, including difficulties with discharge arrangements or ensuring a provider has systems in place to support patients, staff and other agencies involved, or impacted by the Tribunal process.
In 2014/15, there were 28,892 applications to the tribunal from hospital patients with 17,635 hearings taking place. For CTO patients there were 4,349 applications and 3,629 full hearings (patient present) and 486 paper hearings (without the patient present).* For hospital patients, 46% of applications do not result in a hearing, as they are discharged by their clinician or the application is withdrawn by the patient. However, the preparation for a hearing will still have a resource impact for providers and the Tribunal service.
We have raised a number of actions for providers to make sure that patients understand and are informed of their right to apply to the Tribunal and supported to
do so by staff. We are often told that there is confusion between the rights of appeal to hospital managers and to the Tribunal, and IMHAs can play an important role in helping patients to understand and discuss the options for individual patients.
There have been some less frequent examples, where patients have told us they are ‘discouraged from applying for tribunals’. We worked with the providers to identify the origins of this perception and were reassured by their response and local investigation. We met with the Tribunal service in 2015 who shared concerns they are responding to using their powers. This included delays in receiving reports, the quality of professional reports and the accommodation for hearings to take place at some of the hospital sites. The Code includes guidance on both of these areas, which we expect providers to follow, and we have raised actions during our visits where we identified direct patient impacts. We will continue to work with the Tribunal service and consider completing joint reviews when we identify issues that are having direct impacts on patients, including delays to hearings, and problems in involving the patients before and during the hearing because submission of reports from professionals is delayed.