NHS Security Info – Free Download #8 – This brief provides a focus on use of force in NHS Mental Health settings, the requirements of the Mental Health Units (Use of Force) Act 2018, plus the new (draft) Guidance. Author: Jim O’Dwyer, Senior Consultant at AEGIS Protective Services..


In a rush?

Click Here to download this article as .pdf

Use of force in NHS Mental Health Units

1. How big is the problem of use of force in NHS Mental Health Units?

Data from NHS Digital (2017) showed that in 2016-2017 there were 80,387 uses of restraint and other forms of restrictive practice of individuals in services classified under NHS Mental Health Units. These included 10,071 cases of “prone” restraint (patients being held face down), 43,117 cases of “non-prone” physical restraint and chemical restrictions being used on another 8,639 occasions.

The Crisis Prevention Institute (a founder member of the Restraint Reduction NetworkTM) sent FOI requests to Mental Health Trusts and discovered that, during 2016-17, in England:

  • 13% of trusts did not have a Restraint Reduction Policy
  • 97,000 restraints took place
  • More than 2,600 NHS staff assaulted by patients during interventions.
  • 3,652 patients injured while being restrained
  • 46 mental health patients died.

1.1 Significant variations in use of force

Mental Health charity Mind’s report on Mental health crisis care: physical restraint in crisis (June 2013) found evidence of significant variations in the use of restraint across the country, with some restraining 5% of patients and others restraining over 50%. It also raised concerns about the use of face down or ‘prone’ restraint and the numbers of restraint related injuries that were sustained.

The CQC report on The state of care in mental health services 2014 to 2017 highlighted concerns that care for some patients is overly restrictive.

“We are concerned about the great variation across the country in how often staff physically restrain patients whose behaviour they find challenging. This wide variation is present even between wards that admit the same patient group.”

1.2 Racial disparity

Mental Health charity Mind’s report on Mental health crisis care: physical restraint in crisis (June 2013) and its guidance on Restraint in mental health services raised concerns about inequalities in mental health care for people from some black and minority ethnic groups. And, during the passage of the Mental Health Units (Use of Force) Bill, concerns were raised in Parliament about the disproportionate use of physical restraint on people from minority ethnic groups, particularly from African and Caribbean communities.

Black people are four times more likely to be detained under the 1983 Act than white people.

“If we look at the faces of the people who have died after severe restraint in a mental health hospital, we see many more young black faces than in the population as a whole .”

“The lack of publicly-available data is particularly concerning in relation to ethnicity where…there have been significant questions raised about an over-representation of black people in mental health settings and the coercive use of force that features in some of their deaths.

Unconscious bias among clinical professionals affects how mental health services respond to and meet the needs of people from different racial and religious backgrounds.”

1.3 Women at higher risk of death from use of force

In July 2018, Agenda – an organisation that looks at issues faced by women – published research showing that, over a five-year period, 32 women had died after experiencing restraint.

“The data, on patients detained under the Mental Health Act, suggests women were more likely to have restraint-related deaths than men between 2012/13 and 2016/17. Younger women made up a large number of the restraint-related deaths – 13 were aged 30 and under, compared to 4 men in that age range. More than a fifth of women who died were from Black, Asian and Minority Ethnic backgrounds, according to the figures, which were originally gathered by the Care Quality Commission”.

During a debate on the Mental Health Units (Use of Force) Bill in the House of Lords on 7th September 2018, Baroness Tyler of Enfield said:

In terms of gender, I have already mentioned my real concern over the figures for girls and women, who experience, on average, double the number of restrictive interventions. Again, I was frankly surprised to read that; I do not know why, but I was. I want to understand more about why that happens and what we need to do about it, because it seems to me that that is not a situation we should allow. I then looked at the impact of this and realised that it is happening in secure settings—non-mental health settings – in secure children’s homes, secure training centres and young offender institutions. So there is a lot for this Bill to address.”

1.4 Children more likely to be subjected to use of force

During a House of Lords debate on the Mental Health Units (Use of Force) Bill on 7th September 2018, Baroness Tyler of Enfield said:

Children and young people under the age of 20 seem to be subject to the use of force four times more than adults in mental health in-patient units.

1.5 A clear case for change

The facts presented above provide a clear and compelling case for improvement in the way MH services are operated, regulated and inspected.

2. Seni’s Law

The Mental Health Units (Use of Force) Act 2018 is also known as Seni’s Law. The Bill for the Act was originally proposed by Steve Reed – MP for Croydon North – following the devastating death of his constituent, Seni Lewis in 2010.

Seni was a young graduate embarking on his life, aged 23, and living with his parents in Thornton Heath, when he suffered his first ever mental health episode. His parents recognised what was happening and took him to their local hospital. Seni ended up in the Bethlem Royal mental health hospital in Croydon. His parents stayed with him all day but had to leave at 8 o’clock in the evening. Seni became very agitated when he realised they had gone, and he tried to leave, too.

According to the coroner, the staff lacked the training to deal with him, and although there are no allegations that he attacked anyone, they called the police.

Eleven police officers took Seni into a seclusion room and, using pain compliance techniques – the kind used against violent criminals – they took it in turns to hold him face down on the floor for 30 minutes in total. His hands were cuffed behind his back, and his legs were in restraints. They held him like that until he could no longer breathe, and he suffered a heart attack. He went into a coma, and four days later Seni was dead.

At the inquest into Seni’s death, the restraint used was deemed to be excessive, unreasonable and disproportionate.

Seni’s family then campaigned tirelessly over seven years to change the law around the use of force, and in 2018 their efforts finally paid off and the Mental Health Units (Use of Force) Act 2018 became law.

3. The Mental Health Units ‘use of force’ Act 2018

Use of physical force in NHS Mental Health Units is now governed by the Mental Health Units (Use of Force) Act 2018, as well as, the Human Rights Act 1998; the Mental Health Act (and Code of Practice); the Mental Capacity Act 2005; the Health and Social Care Act 2008 (Regulated Activities) Regulations 2014; and the Equality Act 2010.

The primary purpose of the Mental Health Units (Use of Force) Act 2018, (the Act), was to reduce the incidence of deaths and serious injuries arising from use of force in Mental Health Units.

The legislators aimed to accomplish this by increasing the oversight and management of the use of force, reducing the use of force and variation in the quality-of-service delivery, eliminating any racial prejudice affecting staff performance (including unconscious bias), standardising reporting procedures, providing for transparency and accountability and improved access to justice.

In the Act, “Mental health unit” means

“Mental health unit” means—

(a) a health service hospital, or part of a health service hospital, in England, the purpose of which is to provide treatment to in-patients for mental disorder, or
(b) an independent hospital, or part of an independent hospital, in England —

  • (i) the purpose of which is to provide treatment to in-patients for mental disorder, and
  • (ii) where at least some of that treatment is provided, or is intended to be provided, for the purposes of the NHS.

An independent hospital (or part thereof) will only be a “mental health unit” if its purpose is “to provide treatment to in-patients for mental disorder”, and “at least some of that treatment is provided, or is intended to be provided, for the purposes of the NHS.

The types of in-patient service which would be considered within the definition of a mental health unit (this is not an exhaustive list) include:

  • acute mental health wards for adults of working age and psychiatric intensive care units
  • long-stay or rehabilitation mental health wards for working age adults
  • forensic inpatient or secure wards (low/medium and high)
  • child and adolescent mental health wards
  • wards for older people with mental health problems
  • wards for people with a learning disability or autism
  • specialist mental health eating disorder services
  • acute hospital wards where patients are detained under the Mental Health Act 1983 for assessment and treatment of their mental disorder.

The following services are considered to be outside of the definition of a Mental Health Unit and therefore NOT covered by the requirements of the Act:

  • accident and emergency departments
  • section 135 and 136 suites
  • outpatient departments or clinics.

3.1 The Act requires the appointment of a Responsible Person

The Act requires health organisations that operate Mental Health Units to appoint a Responsible Person (to be accountable) for reduction in the ‘use of force’. The Responsible Person must be a permanent member of staff within the organisation and at an appropriate level of seniority, such as an Executive Director or equivalent. This may be, for example, the Chief Nurse or Medical Director.

3.2 A Use of Force Reduction Policy and Plan

The Act requires the Responsible Person for each mental health unit to publish a Policy that sets out the steps to be taken to reduce the ‘use of force’ by staff who work in that unit.

Policies need to reflect the needs of the patient population using the services and be tailored to the specific services being provided. Where an organisation is providing different types of services across several units the Policy should clearly set out the different needs or considerations that may be relevant for particular patient groups, for example, children and young people, adults, women and girls, patients with autism or a learning disability, and people who share protected characteristics under the Equality Act 2010. It is also important that policies reflect the differences in approach required to ensure services are culturally appropriate, and respectful and responsive to the cultural differences, beliefs and practices of the patient population being served.

The Policy should include a statement which sets out the organisation’s commitment to minimising the use of force, through the promotion of positive cultures, relationships and approaches which will prevent escalation and any need to use force.

The Policy should set out the plan or approach the organisation is taking to reduce the use of force within their mental health units and should be co-produced with people with ‘lived experience’ of mental health services, along with their families and carers.

Policy terms should also include:

  1. the organisation’s commitment to protect human rights and freedoms.
  2. the organisation’s recognition of the potentially traumatising impact the use of force can have.
  3. information on how the risks associated with the use of force will be managed.
  4. how the organisation will monitor the use of force on people who share protected characteristics.
  5. what action the organisation will take if inappropriate use of force is identified.
  6. details of the types of force and specific techniques which the organisation may use, which may be different in services for children and young people, adults or older people. This should include information about the risk assessments undertaken prior to the techniques being approved by the organisation or trust board, and an assessment of the training needs of staff in using these techniques.
  7. examples of the circumstances in which the use of force may or may not be used, and when a use of force is considered negligible.
  8. details of relevant staff training programmes and how learning and knowledge will be transferred into the workplace. This should also include the importance of all training complying with Restraint Reduction Network National Training Standards.
  9. details of how patients, their families, carers, and independent advocates will be involved in care planning which sets out the preventative strategies to the use of force, through for example advance statements.
  10. information about how staff will use and follow individualised patient plans.
  11. details of how patients, their families, carers, and independent advocates will be involved in post incident reviews following the use of force, and how the impact (physical or emotional) will be reflected in the patients’ follow up care.
  12. clear information on the expectations for recording and reporting of the use of force within the organisation.
  13. details on how local management information will be used to inform development and review of the Policy.
  14. details on how organisations will work to co-produce policies with their local patient populations to reflect their needs and experiences.
  15. details of how the Policy will be communicated to patients, families, carers and independent advocates.
  16. details of how often the Policy will be reviewed and by whom.

Suggested terms to include specifically in relation to physical restraint:

  • people must not be deliberately restrained in a way that impacts on their airway, breathing or circulation. The mouth and/or nose must never be covered and techniques should not incur pressure to the neck region, rib cage and/or abdomen.
  • there must be no planned or intentional restraint of a person in a prone or face down position on any surface, not just the floor.
  • if exceptionally a person is restrained unintentionally in a prone or face down position, staff should either release their holds or reposition into a safer alternative as soon as possible.
  • staff must not use physical restraint or breakaway techniques that involve the use of pain, including holds where movement by the individual induces pain, other than for the purpose of an immediate rescue in a life-threatening situation.

Prior to publishing the Policy, the responsible person must consult with whoever they consider it appropriate to consult. This should include both current and former patients, their families and carers, bereaved families, and any relevant local third sector organisations. This may be carried out through existing networks, user groups and forums. The Policy should also include details of who or which groups were consulted.

3.3 The Policy must be published and kept under review

The Policy should be published on the trust’s website and in hard copy format, and any other way that the organisation usually makes information available and accessible for patients and service users.

The Policy should also be made available in different formats (such as easy read) and languages as appropriate to the type of service being provided and the population being served.

The Act requires the Responsible Person to keep the Policy on use of force under regular review. This should be done on an annual basis to ensure it is up to date with current practice and evidence, and to allow for local management information to inform the review. If the review suggests changes to the Policy which are considered to be a substantial change, the Act requires that the responsible person must again consult on the changes and re-publish the Policy.

3.4 Must produce and publish info about Patients’ Rights

The Responsible Person for each Mental Health Unit must also produce and publish information about Patients’ Rights in relation to the ‘use of force’ by staff who work in that unit and provide it to patients.

The information provided should (as a minimum) cover the following:

  • A clear statement that the use of force is only ever used proportionately and as a last resort and that it can never be used to cause pain, suffering, humiliation or as a punishment.
  • Which staff may use force and in what limited circumstances, and what approaches and steps will be taken to avoid using it.
  • Details of the types of force (techniques and approaches used) which staff may use with a distinction between children and young people, adults and older people and sex.
  • Details of how patients, their families, carers, and independent advocates must be involved in care planning which sets out the preventative strategies to the use of force, through for example advance decisions.
  • Details of how patients, their families, carers, and independent advocates must be involved in post incident reviews following the use of force.
  • What action the organisation will take if the inappropriate use of force is identified.
  • The patient’s rights in relation to the use of force; this includes rights protected by the Human Rights Act 1998; the Mental Health Act 1983; the Mental Capacity Act 2005; and the Equality Act 2010 (including the duty to make reasonable adjustments.)
  • The patient’s legal rights to independent advocacy and how to access organisations who can provide this service, and the role of the Independent Mental Health Advocate and Independent Mental Capacity Advocate (if applicable).
  • The organisation’s complaints procedure and the help available from an independent advocate to pursue a complaint in relation to the use of force.
  • The process for raising concerns about abuse and breaches of human rights, and the help available from independent advocates.
  • Clear information on what will be recorded and reported on the use of force.
  • Details on how organisations will work to co-produce policies and information with their local patient populations.
  • A glossary of the terms used by staff and the organisation or trust in relation to the use of force.
  • Contact details of independent advocacy services and other relevant local and national organisations.
  • Details on where the Policy on the use of force can be found.
  • Details of how often the information will be reviewed and by whom.

3.5 The Act provides the following definitions:

References to “use of force” are to: the use of physical, mechanical or chemical restraint on a patient, or the isolation of a patient.

“physical restraint” means the use of physical contact which is intended to prevent, restrict or subdue movement of any part of the patient’s body;

mechanical restraint” means the use of a device which:

(a) is intended to prevent, restrict or subdue movement of any part of the patient’s body, and (b) is for the primary purpose of behavioural control;

chemical restraint” means the use of medication which is intended to prevent, restrict or subdue movement of any part of the patient’s body;

isolation” means any seclusion or segregation that is imposed on a patient.

Note: No mention in the Act of the use of ‘threats’ to coerce compliance – even though threatening to use force is included within the meaning of control or restraint set out in the Health and Social Care Act 2008 (Regulated Activities) Regulations 2014.

(Massive hole here!)

3.6 Training in appropriate use of force

The responsible person for each Mental Health Unit must provide training for staff that relates to the use of force by staff who work in that unit.

The training must include training on the following topics:

  1. How to involve patients in the planning, development and delivery of care and treatment in the Mental Health Unit,
  2. Showing respect for patients’ past and present wishes and feelings,
  3. howing respect for diversity generally,
  4. Avoiding unlawful discrimination, harassment and victimisation,
  5. he use of techniques for avoiding or reducing the use of force,
  6. The risks associated with the use of force,
  7. The impact of trauma (whether historic or otherwise) on a patient’s mental and physical health,
  8. The impact of any use of force on a patient’s mental and physical health,
  9. The impact of any use of force on a patient’s development,
  10. How to ensure the safety of patients and the public*
  11. The principal legal or ethical issues associated with the use of force.

Note * re: 10) above. This ‘topic’, (to my surprise and relief) actually refers to:

  • The process by which patients and their families or carers are informed of the approaches and techniques which may be used
  • The process by which patients and their families or carers are involved in agreeing their own care plan and arrangements to take active steps to prevent and pre-empt distress and conflict arising
  • The impact of the use of force on staff’s mental and physical health whether this is caused by a patient’s physical aggression or by observing the use of force and how this is mitigated within the organisation
  • The role of observers in any use of force incidents
  • The role of independent advocates in assisting patients and their families or carers in agreeing plans and raising concerns about the use of force
  • Duty of Candour in regulation 20 of the 2014 Regulations in respect of the use of force.
  • The organisation’s approach to the inappropriate use of force and action which will be taken
  • Whistleblowing procedures.

Note: There is no mention in the Act of any kind of hands-on, physical restraint training!

However, the Draft Guidance states:

The Responsible Person must ensure staff are trained in prevention and de-escalation techniques and the safe use of force.

Note: The Draft Guidance also states: the Responsible Person should attend appropriate training in the use of force to ensure they understand the strategies and techniques their staff are being trained in and that it’s important they are guided by the impact of trauma on their patients and the potentially re-traumatising impact of the use of force.

3.7 Recording ‘use of force’ incidents:

The Act requires that each Mental Health Unit must keep a record of any use of force by staff who work in that unit where the use of force is more than “negligible“.

(Another massive hole here!)

An example of a negligible use of force could be, the use of a flat (not gripping) guiding hand by one member of staff to provide redirection or support to prevent potential harm to a person, where the contact is so slight that the person could at any time reject the direction of the guiding hand and exercise their autonomy.

If, however, the level of contact between a member of staff and the patient goes beyond the minimum necessary in order to carry out daily therapeutic or caring activities, it is not a negligible use of force and must be recorded.

Use of force can never be considered as negligible in the following circumstances:

  • Any form of chemical or mechanical restraint is used
  • The patient verbally or physically resists the contact of a member of staff
  • A patient complains about the use of force either during or following the use of force
  • Someone else complains about the use of force
  • The use of force causes an injury to the patient or a member of staff
  • More than one member of staff carried out the use of force.

3.8 Information that must be recorded:

Where force has been used, the Act requires Mental Health Units to record:

a) The reason for the use of force;
b) The place, date and duration of the use of force;
c) The type or types of force used on the patient;
d) Whether the type or types of force used on the patient formed part of the patient’s care plan;
e) Name of the patient on whom force was used;
f) A description of how force was used;
g) The patient’s consistent identifier; (see section 251A of the Health and Social Care Act 2012)
h) The name and job title of any member of staff who used force on the patient;
i) The reason any person who was not a member of staff in the Mental Health Unit was involved in the use of force on the patient;
j) The patient’s mental disorder (if known);
k) The relevant characteristics* of the patient (if known);
l) Whether the patient has a learning disability or autistic spectrum disorders;
m) A description of the outcome of the use of force;
n) Whether the patient died or suffered any serious injury as a result of the use of force;
o) Any efforts made to avoid the need to use force on the patient;
p) Whether a notification regarding the use of force was sent to the person or persons (if any) to be notified under the patient’s care plan.
q) The Responsible Person must keep the record for 3 years from the date on which it was made.

Note: In subsection (k) above, the “relevant characteristics” in relation to a patient mean –

  • The patient’s age;
  • Whether the patient has a disability, and if so, the nature of that disability;
  • The patient’s status regarding marriage or civil partnership;
  • Whether the patient is pregnant;
  • The patient’s race;
  • The patient’s religion or belief:
  • The patient’s sex;
  • The patient’s sexual orientation.

3.9 Statistics to be published annually

At the end of each year the Secretary of State must ensure that statistics relating to the records collected are analysed and published. Section 7(2) of the Act provides that the statistics must provide an analysis of the use of force by reference to some of the information that the responsible person is required to record including: the place, date and duration of the use of force; the type or types of force used on a patient; the patient’s relative characteristics; whether the patient has a learning disability or autistic spectrum disorder; and whether the patient died or suffered any serious injury as a result of the use of force.

3.10 Investigation of deaths and serious injuries

Section 9 of the Mental Health Units (Use of Force) Act 2018 made provision for deaths and serious injuries that occur during, or result from, the use of force in Mental Health Units to be automatically investigated. In practice, this means complying with the NHS National Serious Incident Framework and CQC reporting requirements.

3.11 Police use of BWV

Section 12 of the Act makes provision for police officers to, if practicable, wear and operate body cameras when attending Mental Health Units.

3.12 (DRAFT) Guidance from the Secretary of State

Section 11(1) of the Act requires the Secretary of State to publish guidance about the exercise of functions by responsible persons and relevant health organisations under this Act and section 11(2) requires that in exercising functions under this Act, Responsible Persons and relevant health organisations must have regard to guidance published under this section.

The Guidance has not yet been published.

However, on 25th May 2021, an Open Consultation commenced on the DRAFT Mental Health Units (Use of Force) Act 2018 : statutory guidance for NHS organisations in England and police forces in England and Wales.

Note: The Guidance, when it is finalised and published, will be statutory. So, a failure to ‘have regard’ to it will be a breach of a statutory duty.

3.13 Other (non-statutory) Guidance was also published

The Mental Health Units (Use of Force) Bill originally proposed that the Care Quality Commission (CQC) should be responsible for providing the Guidance/Code of Practice to accompany the legislation. However, at the first sitting of the Bill, this was changed to be the responsibility of the Secretary of State.

The change of responsibility for producing the Guidance sparked off production of new government Guidance, including, “Reducing the Need for Restraint and Restrictive Intervention – Children and young people with learning disabilities, autistic spectrum conditions and mental health difficulties in health and social care services and special education settings”, published: 27 June 2019.

And, from April 2020, providers of Mental Health and Learning Disability services and providers of Mental Health Secure Services, became ‘contractually incentivised’ to provide training in restrictive practices to all relevant staff that is certified (by a UKAS accredited certification body) as complying with the Restraint Reduction Network Training Standards and in accordance with the Mental Health Units (Use of Force) Act 2018.

The ‘contractual incentive’ was repeated in the NHS Standard Contract 2021/22 – Technical Guidance (s.41.5) – Service Development and Improvement Plan (SDIP).

The introduction of the Restraint Reduction Network Training Standards Certification Scheme (RRN TS CS) has caused discord and a number of commercial training providers are refusing to participate in the ‘expensive and unworkable’ scheme.

For example, this is what Mark Dawes (National Federation for Personal Safety) said in an article titled:Why The RRN Standards Are Unworkable’, published September 2020:

“What do I get by adopting the RRN standards and BILD certification? The answer seems to be nothing, apart of course from increased interference and more complicated logistical and bureaucratic processes.”

Mark Dawes is right in what he has said.

I am not going to participate in the RRN Training Standards Certification scheme, and I would advise others to, for the time being, refrain from investing too. I will explain why in detail in my next ‘brief’ which will focus on the Restraint Reduction Network Training Standards Certification Scheme. Meanwhile, my advice to NHS Trusts would be to ensure they are, in every respect, complying with the statutory requirements of the Act and to hold fire with any investment in the RRN Training Standards Certification Scheme and see how it develops/fails.

The ‘business case’ for hesitating is simply cost over against any potential gain and that is a valid reason for ‘non-compliance’ provided by s.41.6 NHS Standard Contract 2021/22 – Technical Guidance which makes it clear that the intention of mandatory SDIPs is not to require significant additional investment from commissioners or providers; rather, it is to encourage joint management action to tackle these important priorities to the extent possible within available resources.

What this means is that if the expense involved in meeting the objective is significant (and it is!), it can excuse non-compliance – especially if the organisation is providing services that are safe, effective, caring, responsive and well led!

3.14 Enforcement

The Mental Health Units (Use of Force) Act 2018 does not carry any specific penalties for non-compliance.

However, the Care Quality Commission (CQC) has functions relating to the registration, review and investigation of providers of regulated health and social care services. During the registration, inspection and monitoring process, CQC may consider a provider’s compliance with the requirements of any enactment it considers to be relevant, and the provisions of the Act are likely to be “relevant requirements”.

Significant failings could therefore prejudice continuing registration with CQC. Also, failure to meet the Act’s requirements can be raised in civil proceedings e.g. complaints and compensation claims.

3.15 What will CQC Inspectors be looking for?

CQC Inspectors will be looking to assess compliance with the Essential Standards of Quality and Safety (See page 92, Outcome 7: Safeguarding people who use services from abuse.)

Exactly what CQC Inspectors are looking for during an inspection will vary according to the type of inspection it is and will be informed by the relevant CQC ‘Brief guide’.

Note: Brief guides are a learning resource for CQC inspectors. They provide information, references, links to professional guidance, legal requirements or recognised best practice guidance about particular topics in order to assist inspection teams.

For example:

See a full list of CQC Brief guides here.

3.16 Legislative impact on NHS Mental Health providers

Most mental health providers are likely to already be meeting the Act’s requirements, as they are really not too different to the existing CQC requirements around restrictive practices in mental health settings. However, the responsible person requirement will be likely to be new for some and the training content and level of detail needed for reporting may also require a bit of tweaking to ensure alignment.

3.17 Recommendations to providers of NHS acute services

The Mental Health Units (Use of Force) Act 2018 does not make any requirements of providers of NHS acute services. However, providers are advised to compare the provisions of the Act against their existing policy, training and reporting arrangements and make appropriate adjustments including, involving patients in the planning, development and delivery of care and treatment.

3.18 Will the Act achieve its objectives?

The primary aim of the Act was to reduce the incidence of deaths and serious injuries arising from use of force in Mental Health Units and the legislation is a positive step forward to achieving that goal.

For example, S.9 of the Act, which makes provision for deaths and serious injuries that occur during, or resulting from, the use of force in Mental Health Units to be automatically investigated, will certainly help illuminate instances of a seriously untoward nature; and the clearer, more direct lines of responsibility required by the Act will provide for a higher degree of corporate and individual accountability if/when things do go wrong.

And the requirement to incorporate input from people with lived experience of MH Services when defining policy, procedures and staff training will almost certainly have a positive effect too.

However, whether or not the Act will successfully achieve all the other aspirations of the supporters of the Bill when it passed through parliament is open to question. (I’m referring here to the insidious, unnecessary and unjustifiable restrictive interventions that deprive patients freedom of choice and freedom of movement and are imposed simply for staff convenience, or because that’s the way it’s always been done!)

Staff training is an important component of a ‘use of force reduction’ programme and the list of training topics the Act requires to be delivered to staff provide a useful guide to what is required. But that’s all it is – a list of topics. No required outcomes or competencies defined. No real ‘standards’.

Note: The new Restraint Reduction Training Standards don’t set required outcomes or competencies either. So, they are not really ‘standards’ either.

The legislators have sensibly not attempted to dictate to the police how they will manage incidents. However, the requirement to operate BWV if attending a Mental Health Unit to assist staff with a patient, will provide an independent, unbiased record of future events – enabling speedier investigation and analysis.

Although intended to ‘standardise reporting procedures’ (so as to enable comparison of performance across sites nationally), s.6 of the Act, ‘Recording of use of force’ does not prescribe a standardised methodology/system of reporting. This together with the flexibility of interpretation about what is a negligible (non-reportable) use of force’, coupled with the omission of threats to achieve compliance (coercion) as a form of ‘use of force’ provides scope for huge variation in the reporting systems at each Trust and the integrity of any statistics that can subsequently be generated. Even so, the requirements will still provide a baseline against which future comparisons can be made.

The biggest influence on the success or demise of the Act in achieving it’s objectives will be how diligently and effectively CQC Inspectors conduct their tasks.

The requirements in s3 Policy on use of force will help to ensure MH Service providers publicly commit to reducing reducing/eliminating use of force and document their arrangements for achieving the objective. But what is the value of a policy if it is not implemented in practice?

Note: The independent review of CQC inspections and regulation of Whorlton Hall, 2015-2019, by Glynis Murphy, stated (page 6):

On paper, the policy, procedures, operational practices and clinical governance of Castlebeck Ltd were impressive. However, in practice, Winterbourne View Hospital’s failings in terms of self-reporting, attending to the mental and physical health needs of patients, physically restraining patients, assessing and treating patients, dealing with their complaints, recruiting and retaining staff, leading, managing and disciplining its workforce, providing credible and competency based training and clinical governance, provided the opportunity for the kind of arbitrary violence and abuses exposed by the undercover reporter.”

All agencies also need to be mindful that it is not unheard of for CQC Inspectors, Police and Emergency Department staff to be lied to by very plausible NHS staff (and management), for example fobbing off injuries to patients as self-harm or accidental during ‘necessary restraint.

Mental Health Units are high risk environments for patients (and staff).

The Stanford Prison Experiment carried out in 1973, by Dr Zimbardo, clearly demonstrated that ordinary and good people who are given authority over others will quickly begin to abuse them and treat them in object like ways. It is, unfortunately, human nature and the only way to prevent the abuse happening is through effective, independent oversight and supervision.

In order to minimise the opportunity for abuse to occur, Mental Health Units need to be subjected to more frequent, more stringent and unannounced CQC inspections and more exacting safeguarding investigations (and that is what has been promised.)

The Act helpfully provides CQC Inspectors with important new ‘warning indicators’ to look out for during inspections i.e. alongside those already highlighted by previous Serious Case Reviews and CQC Inspection reports listed below:

  • The service being provided is a long way from the patient’s home
  • Many different Commissioning Services have referred patients to the Unit
  • The length of stay for patients is longer than average
  • Evidence of routine healthcare needs not being attended to
  • Evidence of a lack of meaningful activities for patients
  • Minimal interaction between staff and patients
  • Above average/excessive use of anti-psychotic and anti-depressant drugs
  • Limited opportunity for outsiders to observe daily living in the Unit
  • The site is untidy/unclean/smelly
  • Inattention to patients’ appearance
  • Above average numbers of injuries to patients
  • High number of recorded physical-restraints
  • Evidence of over-crowding
  • Evidence of under-staffing/unsuitable skill-mix
  • Evidence of over-reliance on agency/support staff
  • Evidence of staff working excessive hours
  • Evidence of inadequate staff training
  • Evidence of untrained staff being involved in physical restraint
  • Limited access for patients to independent advocacy and representation
  • Evidence that patients’ complaints are not dealt with satisfactorily
  • High level of staff sickness absence
  • High level of staff turnover.

Some Mental Health Units are exemplary models of human rights based, person-centered, compassionate care.

However, Mental Health Units can be impersonal, intimidating, frightening places, with high levels of assaults.

The situation really calls out for much higher levels of ‘transparency of process’ to be demonstrated by Mental Health Units.

For example, by:

  • Inviting Lay Visitors to visit the Mental Health Unit frequently and unannounced
  • Body Worn Video for staff and CCTV everywhere – even in ‘sensitive’ areas.

Note: A pilot study on the use of BWV on Mental Health wards at West London Trust (WLT) in 2019, demonstrated that it is feasible to deploy BWV in all types of MH ward settings, up to, and including, enhanced medium secure wards, and that their use is acceptable and beneficial to patients, MH staff and MH managers.

But, what about patients’ rights to privacy/dignity?

Well, although situations could feasibly arise which may make it unreasonable to video record the scene, in the vast majority of cases, the imperative to demonstrate ‘transparency of process’ (i.e. the way things are done) will outweigh patients’ rights to privacy/dignity.

It’s my belief that if they were candidly warned about how ‘dangerous’ a stay in a Mental Health Unit can be for inpatients, (both in terms of risk of attack by another patient and risk of abusive mistreatment by staff) most patients (and their relatives) would probably be willing to sacrifice privacy rights in favour of having cameras protecting them. In fact, given the choice, they’d insist on the cameras!

Wouldn’t you?

Download this article free, no sign up required

Click on the image below to view/download this article as a .pdf document.

Now available – Training for NHS Staff on Use of BWV on NHS Premises

More info

I hope the information above is useful to you. If you would like to discuss any aspect of it, please feel free to give me a call.

Jim O’Dwyer
Senior Consultant
AEGIS Protective Services

T: 01202 773736

Jim O'Dwyer image