- The Mental Health Act 1983 (MHA) Code of Practice came into force on 1 April 2015.
- The Code applies to any decisions made in relation to a patient’s care, support or treatment provided under the MHA.
- The Code includes new chapters on equality, care planning and human rights.
- There is new guidance in the Code on when to use the MHA and when to use the Mental Capacity Act 2005 and deprivation of liberty safeguards.
- The Code includes five new overarching principles: least restrictive option and maximising independence; empowerment and involvement; respect and dignity; purpose and effectiveness; efficiency and equity.
The Mental Health Act 1983 (MHA) Code of Practice came into force on 1 April 2015.
The MHA applies to people in hospitals and care homes and, where a community treatment order applies, domiciliary care. Some patients have a greater degree of freedom; for example, those subject to guardianship (under Section 7, MHA) or a community treatment order (under Section 17A, MHA) may be able to come and go as they please while still being subject to restrictions such as having to live in a particular place or comply with treatment.
The MHA permits individuals to be deprived of their liberty – or at least to have their liberty restricted – and so interferes with the basic right to liberty under Article 5 of the European Convention on Human Rights (ECHR). It is essential that care provided under the MHA accords with the legislation and the Code of Practice so that any interference with the right to liberty is lawful.
What does the MHA Code of Practice apply to?
The Code applies to any decisions relating to a patients’ care, support or treatment provided under the MHA. It is essential for providers to be up to speed with the new Code if they work with residents detained under the MHA in a residential care home setting, or subject to guardianship or a community treatment order in their own home and receiving domiciliary care.
The Code is not statutory (i.e. it is not binding) for those in the independent and voluntary sectors (including those receiving funding for care placements) that provide services for people who are, or may become, subject to the MHA. However, the Code is considered beneficial for them, and the introduction to the Code itself says ‘it is important that these persons have training on the Code and ensure that they are familiar with its requirements’ (Introduction, paragraph VI).
When inspecting a placement that has residents under the MHA, the Care Quality Commission (CQC) will look at a provider’s exercise of powers and discharge of duties under the MHA as part of that inspection. Professor Sir Mike Richards, Chief Inspector of Hospitals, has said that: ‘CQC uses the Code to assess how providers are meeting the requirements of the Mental Health Act and when responding to patients’ concerns about how the Act has been applied to them... Our inspection team will continue to use the code to help identify good practice or improvements required by services during inspections and it will help us to judge whether services are safe, effective, well-led and responsive to people’s needs.’
The Code is a comprehensive and lengthy document, and so we have focused here on the changes to it that are most relevant to health and social care providers. Remember that the Code only applies to those patients receiving care under the MHA (although there are many principles that can be taken as good practice for other service users also).
Key changes to the Code
The main changes in the new Code of Practice include:
- the introduction of five overarching principles
- new chapters on equality and health inequalities, care planning and human rights
- new guidance on when to use the MHA and when to use the Mental Capacity Act 2005 and deprivation of liberty safeguards
- additional guidance on blanket restrictions, supporting patients with dementia, autism and/or learning disabilities, and on physical healthcare
- revisions to the guidance on restrictive interventions, including in relation to segregation
- a new list of policies and procedures.
Safeguarding only features in the Code’s introduction but it is worth highlighting given how important an issue it is for vulnerable adults.
Every local authority must establish a Safeguarding Adults Board (SAB). The objective of a SAB is to protect adults with care and support needs who are experiencing, or are at risk of experiencing, abuse or neglect and are unable to protect themselves. Therefore, if a provider is concerned about a safeguarding issue, this should be reported to the local authority where the individual is residing at the time so that the SAB can address the matter.
The Care Act 2014 and its statutory guidance contain more detail on safeguarding issues.
Guiding principles (Chapter 1)
The Code starts with the new five overarching principles that should always be taken into consideration when any decisions are made in relation to a patient's care provided under the MHA. Departure from the principles must be explained and justified, and CQC will look for evidence of this in their inspections.
The principles are:
- Least restrictive option and maximising independence
- Empowerment and involvement
- Respect and dignity
- Purpose and effectiveness
- Efficiency and equity.
Least restrictive option and maximising independence
Wherever possible a patient should be treated without being detained under the MHA, if this can be done safely and lawfully. Patients’ independence should be encouraged and supported.
Empowerment and involvement
Patients should be fully involved in decisions about their care, support and treatment, bearing in mind that they may need support to participate in this way. So, for example, a patient should be consulted about their own care plan before it is produced.
If a patient lacks capacity to make a particular decision, they should still be asked their wishes, and attempts made to determine what their past wishes and feelings were, and if they have any advance decision that should be referred to. Consideration should be given as to whether the patient needs an advocate to help them express their views.
The views of their family, carers and other appropriate individuals should also be fully considered.
If a decision has to be taken that is contrary to the patient’s decision, or that of others involved, the reasons for this should be explained and documented.
Respect and dignity
Patients, their families and carers should be treated with respect and dignity.
Purpose and effectiveness
Decisions about care and treatment should be appropriate to the patient, and have clear therapeutic aims, promote recovery, and follow national or best practice guidelines from professional bodies. Care plans for detained patients should focus on maximising recovery and ending detention as soon as possible. Care plans should also address physical healthcare needs, including promoting healthy living and reducing any side-effects of treatment.
Efficiency and equity
Providers, commissioners and other relevant organisations should work together to ensure that the quality of commissioning and provision of mental health services are of high quality, and are given equal priority to physical health and social care services. All services should work together to facilitate timely, safe and supportive discharge from detention. Staff must have sufficient skills, information and knowledge about the MHA to support their patients.
Monitoring and compliance (Chapter 3)
The MHA involves fundamental human rights. The Equality Act 2010 is also relevant, as it makes it unlawful to discriminate against a person on the basis of a protected characteristic, such as disability. Providers should therefore have in place a human rights and equality policy for service provision under the MHA. The Code sets out the minimum that this policy should include:
- how the organisation complies with applicable human rights and equality legislation
- provision for robust monitoring of equalities so the organisation can better understand how people with protected characteristics are affected by the MHA
- detail as to how the organisation will review its environment and culture to ensure there is a therapeutic environment, and that patients are treated with dignity and respect
- detail as to how the organisation will obtain qualitative evidence on patients’ experiences
- consideration of the need for reasonable adjustments
- detail as to how staff will be provided with learning, development and training on human rights legislation and the Equality Act 2010.
Information for patients, nearest relatives and carers (Chapter 4)
In accordance with the guiding principles, patients should be kept well informed and consulted on their care.
Some patients will not have capacity to consent to their treatment under the MHA. Patients should be told the circumstances in which they can be treated without consent and those treatments which they have a right to refuse.
Patients under the MHA will have a ‘nearest relative’, who is defined under Section 26 of the MHA. The patient’s Mental Health Act administrator can confirm who the nearest relative is. It is important to know this, as the nearest relative is entitled to information about the patient. However, if the patient objects to information being shared with their nearest relative, it should not be shared. Equally, the patient may nominate additional people, such as his/her carers, to be kept informed. Providers should establish the patient’s wishes in this regard as soon as possible.
Carers are noted in the Code as being ‘key partners with health and care services and local authorities in providing care, especially for relatives and friends who have mental disorders’. The guidance provides that professionals should identify all individuals who provide care and support for patients.
Finally, information regarding how to make a complaint should always be given to a patient and their family/carers. Complaints should be addressed at a local level first, if possible, but details of how to complain to the service commissioner, CQC and the Parliamentary and Health Ombudsman should also be made available to the patient.
Attorneys and deputies (Chapter 7)
Although not new, it is worth highlighting that being detained under the MHA does not affect the validity or scope of any lasting power of attorney or deputyship that an individual may have. It is important to note that, although an attorney or a deputy can exercise a patient’s rights under the MHA on their behalf, they cannot exercise the rights of the nearest relative.
Privacy, safety and dignity (Chapter 8)
This chapter applies where a patient is detained in a hospital or care home. Article 8 of the ECHR provides individuals with a right to respect for private life, and this can be particularly difficult to adhere to in a hospital or care home setting. Efforts should be made to give patients as much privacy as possible, while taking into account their needs and any risk assessments.
New guidance is given on blanket restrictions; restrictions applied to all patients should be avoided whenever possible. Restrictions should be a proportionate and measured response to an individually identified risk, and should not be applied for longer than is necessary.
Having a locked door will amount to a blanket policy as it will affect all patients. In such a case, patients who are not detained under the MHA and who have capacity should be made aware of the locked door and asked if they consent. It should also be made clear to them who they need to speak to when they wish to leave. Where the patient lacks capacity to decide on their residence, they will not be able to consent to such an arrangement and will likely be deprived of their liberty.
This chapter also addresses guidance as to:
- private telephone calls and internet access
- the separation of women and men
- carrying out personal and other searches.
Mental capacity and deprivation of liberty (Chapter 13)
There is new guidance relating to when the MHA should be used and when the Mental Capacity Act 2005 (MCA) should be used. This has arisen following the significant changes in the law relating to deprivation of liberty in the past year.
This chapter provides an overview as to what the MCA and the deprivation of liberty safeguards (DoLS) are, and how to determine capacity and recognise if there is a deprivation of liberty. Remember that a decision about whether to use the MCA or the MHA only arises if the patient lacks capacity, as deprivation of liberty under the MCA does not apply to adults with capacity.
Use of the MCA for those already detained under the MHA
If the person has a physical illness or condition unrelated to their mental disorder and which requires treatment (e.g. cancer treat-ment or pregnancy), the MCA will apply in assessing whether they have the capacity to give consent to that treatment. If they are assessed as lacking capacity to consent, any treatment given must be in accordance with the MCA (not the MHA).
When is there a deprivation of liberty?
To establish whether there is a deprivation of liberty of an adult without capacity, providers are advised to consider whether the person is under continuous supervision and control and not free to leave his or her placement. Consideration must be given to whether the patient’s care plan can be amended to avoid any potential deprivation of liberty. Factors that are not relevant to whether there is a deprivation include:
- the person’s compliance or lack of objection
- the reason or purpose behind a particular placement.
A deprivation of liberty can also occur in domestic settings where the state is responsible for such arrangements. For example, a person may be living in their own home but staff are present 24 hours a day, the front door is locked and they can only go outside accompanied by staff. Where the state is funding this arrangement, or even just aware of it, this would amount to a deprivation of liberty even though the person is in their own home.
MHA vs MCA
The chapter provides helpful guidance on determining when to use the MHA or the MCA, which we suggest is read in detail. The situation is summarised in an options grid within the Code, but we have provided what we think is a more helpful summary in Table 1.
The Code says it is necessary to consider whether a patient is objecting, taking into account all the circumstances. The decision to be made is whether the patient objects; the reasonableness of that objection is not the issue. If the patient cannot state their objection, it will be necessary to consider the patient’s behaviour, wishes, feelings, views, beliefs and values, both present and past, in order to ascertain whether or not they object. The guidance suggests that decision-makers should err on the side of caution and, where in doubt, take the position that a patient is objecting.
In our experience, it is not only whether the patient objects to the placement, but also whether they comply. A patient without capacity may say they object, i.e. they want to be elsewhere, but comply with treatment and the rules of the placement. For such a patient, the MCA may well be more suitable. Conversely, for a patient who says they object and resists treatment, requiring, for example, regular restraint, the MHA would be appropriate.
Note that objection/compliance is not relevant to deciding whether there is a deprivation of liberty, but it is relevant in deciding whether the MHA or MCA should be used.
Where a DoLS authorisation is used, this does not in itself authorise care or treatment, only the deprivation of liberty that results from the proposed care plan. Any care or treatment should be provided in accordance with the MCA.
We would strongly recommend reading the Law Society’s newly issued guidance Identifying a Deprivation of Liberty: A Practical Guide. This guidance was commissioned by the Department of Health and is aimed at practitioners to help them identify when a deprivation of liberty is occurring.
Supporting patients with dementia (Chapter 14 and 23)
The Mental Health Act 1983 Code of Practice now provides guidance as to how to support those with dementia. There are several points of guidance for those caring for people with dementia under the MHA:
Professionals supporting patients/service users with dementia should have appropriate skills, knowledge and expertise, or be able to acquire these, to support patients with dementia effectively.
People with dementia may take time to engage and develop motivation for treatment, and can benefit from approaches that do not involve drugs, such as cognitive stimulation therapy. People with dementia may experience depression or anxiety and it may be appropriate to offer them antidepressant drugs and/or talking therapies.
Conversely, although some people with dementia may display challenging behaviour, the use of sedation or antipsychotic medication may not be appropriate in these circumstances and it is suggested that professionals consider alternative intervention or treatment that could be more appropriate.
Supporting patients with autism and learning disability (Chapter 20)
Extensive guidance is given on working with those under the MHA who have a learning disability and/or autism. If you do work with those who have a learning disability or autism, we suggest looking at this chapter in detail.
The guidance provides that sensitive, person-centred support in a familiar setting will usually be helpful to those with autism. The Code suggests that the specialist expertise and skills of staff should be regularly audited. The key to appropriate care for those with autism is having staff with the relevant expertise and experience who can consider a range of care options, with an emphasis on those that are least restrictive to the person.
Promoting good physical healthcare (Chapter 24)
Providers are advised to ensure that patients with a mental disorder receive physical healthcare that is equivalent to that received by people without a mental disorder. This should include routinely assessing physical needs to ensure that conditions are not undiagnosed or untreated, and routinely screening for high risk health conditions, as well as ensuring that care planning has a focus on reducing common risk factors, e.g. smoking. This is particularly important given that patients under the MHA are at particular risk of co-morbidities (the presence of one or more additional disorders, or diseases, co-occurring at the same time as a primary disease or disorder).
The Code sets out that all providers should comply with the following:
- Ensure compliance with current requirements on food, diet and nutrition as set out in the NHS Standard Contract.
- Have a food and drink strategy that covers nutrition and hydration needs, healthier eating, and sustainable procurement of food and catering services.
- Assess patients’ nutritional state on admission and at regular intervals thereafter, using an accredited screening tool.
- Ensure that all patients have sufficient opportunities to undertake sufficient physical and other meaningful activity to support their physical and mental health.
New policies and procedures list
Annex B to the Code contains a lengthy (seven page) list of policies, procedures and guidance that should be put in place locally by hospital managers, local authorities and others. If you do have patients under the MHA, you should contact your local authority for copies of these policies, such as a human rights and equality policy, a complaints policy and a blanket locked door policy (see Toolkit for policies).
The key changes and chapters are addressed in this article. This is, however, only an overview of the Code. If you do provide services to those under the MHA we would recommend that you look at it in detail, particularly if you are not already familiar with its content.
- Mental Health Act 1983: Code of Practice, Department of Health, March 2015: http://bit.ly/MHACodeofPractice
- Care and Support Statutory Guidance: Issued under the Care Act 2014, Department of Health, October 2014: http://bit.ly/CareSupportStatutoryGuidance
- Identifying a Deprivation of Liberty: A Practical Guide, The Law Society, April 2015: http://bit.ly/LawSocietyDoL
Use the following items in the toolkit to put the ideas in the article into practice:
- Policy - Locked door.doc62 KB
- Policy - Mental Health Act 1983.doc60.5 KB
- Policy - Respect for human rights.doc65.5 KB
- Checklist - Mental Health Act 1983 Code of Practice.doc79.5 KB
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