The designated County Court of Protection is busy and under a duty to deal with matters expeditiously.
So the next court hearing is case management to move quickly to what is in your loved one’s ‘best interests’.
So wherever possible parties must agree matters before the hearing .
And family members represented or not are harried by the local authority and Official Solicitor into agreement.
Usually in a small, 8×6 windowless room with insufficient chairs for its 5 or more occupants.
With the pressure of never knowing when they will be summoned to court, as all hearings are set for 10.30, a month of sleepless nights and the horror of being in the place that can remove their loved one.
An expert report states they are ‘incapable’ and this must be agreed before the court has jurisdiction.
Initially the Official Solicitor and Local Authority will try to get you to concede your loved one does not have the capacity to litigate .
Confusing as does the MCA test, capacity to make a decision as defined by the Act with the ability to perform that decision once made.
They know capacity to litigate is the most difficult one not to concede.
As who would have capacity to litigate ?
How could anyone foresee the consequences of deciding to litigate or not unless they were a mental capacity lawyer .
Once this is agreed its then a slippery slope to conceding incapacity to form relationships as again they are unable to foresee the consequences.
Particularly on a perfunctory basis where relationships with family members are equated with those with strangers.
Experts report the autistic only exist in the present and can therefore never pass the MCA capacity test as they are unable to foresee the consequences of their decisions..
Yet a declaration of general capacity is not allowed by the MCA, which states capacity to make a decision must be assessed in respect to a specific decision at the time that decision needs to be made without delay in a person’s best interests.
As the MCA was passed to increase autonomy not destroy it.
Regardless of this, the standard court ordered assessment will be in relation to effectively all decisions- capacity to form a relationship , choose where to live, medication and all day to day decisions.
These are many decisions and most, if not all, need not be made at the time of the hearing without delay in a person’s best interests.
The expert has been chosen and remitted by agreement between the Local Authority and Official Solicitor whose continued employment is dependent upon that expert finding incapacity.
And his role is largely prescribed to find your loved one ‘incapable’ of making decisions in relation to those asked for in the court order.
Despite the fact it is often unlikely this expert has engaged much with his assessee.
And despite the fact it is unlikely when he visited your home he took ‘all practicable steps to help him [make that decision]…….without success’ s1(2) Mental Capacity Act.
The mental health industry is apparently awash with people who do not engage with their assessments. .
And we have no numbers of those who are found capable, if any.
If family do not agree ‘incapacity’, the judge may declare it, with or without a contested capacity hearing.
Again we have no numbers of those were the court of protection have declared capable.
It is impossible to appeal a county court capacity declaration beyond the local high court as capacity is treated as a case management issue despite its jurisdictional nature.
Once incapacity has been agreed /declared, any Enduring/Lasting Power of Attorney is set aside on the grounds of retrospective incapacity, despite the MCA providing capacity is presumed until it is set aside on the balance of probabilities.
And all relationships with family members are voided as your loved one is incapable of ever being able to form them.
Now the state controls your loved one’s decisions for life and can move to whatever they decide is in his ‘best interests’.
And neither family member nor indeed the subject of the proceedings has any say in the matter.
A court date will be set in a months time and your home will be occupied by the state regardless of the affect on you and your vulnerable loved one .
Two social workers will arrive in your home every week for over an hour.
Your GP will be sent a detailed remit of what is needed in his s49 report and state the local authority have concerns about your care.
He is given the option of not actually examining should this prove difficult and will normally rely on medical records and you for information.
Information already existing and shared illegally in a Multi agency Safeguarding Hub with all agencies.
You will, on threat of court proceedings, have to provide paper details of months of DLA payments before legal aid can be granted to the lawyer appointed by the Official Solicitor’s Office to be the ‘incapacitated’s litigation friend, to purportedly represent him.
As family carers are cast as abusers, they can’t instruct a solicitor to represent their loved one, even if they had the funds, as now a conflict of interests exists between them and their child/spouse/parent.
It is impossible to find the numbers of Official Solicitors appointed or the public cost, as they are not subject to Freedom of Information Act Notices.
And there is no guidance in the MCA or in any supporting materials, as to how a litigation friend should discharge his duties in the court of protection.
At common law his duty is to represent the person subject to the proceedings and relay as clearly as possible his wishes to the court. RP v United Kingdom at paragraph 76.
But in the practice now created by case law, the Official Solicitor’s representative function, has been replaced by an investigatory one, which supports what the court and local authority believe is in his ‘client’s’ ‘best interests’, rather than what his client actually wants.
As there are many cases which show that an ‘incapacitated’ ’s litigation friend hasn’t positively advanced, or has conceded matters, he would not have done, if he were representing him, as is his duty in law as his next friend.
So it appears, in a court, statutorily created to protect the vulnerable, no one is actually representing him or arguing his case.
But instead, arguing what the court believe to be his case and what they believe is in his best interests.
So ‘substitute decision’ making is the norm in breach of Article 12 of the United Nations Treaty on Rights of Disabled.
Nor, unless the family can afford it is anyone defending family carers and arguing their case.
So an Official Solicitor will be another visitor.
And again you will provide the information on behalf of your loved one, but, as you are cast as abuser, and the OS role is now investigatory, he will be suspicious and note matters supporting the LA case, unhygienic/disorganised home, lack of care, signs of risk.
He will then write up his witness statement without approval from either you or his ‘client’.
A psychiatrist and psychologist will be jointly instructed and remitted to assess your loved ones capacity and psychological and emotionally wellbeing.
Again you will provide the information and again there is likely to be little engagement with the assesse.
A local authority carers assessment of family members will need to take place, although this can’t be forced but you’ll think it can because it is contained in a Court Order.
Carers Assessments involve a very intrusive, detailed investigation into the effects of caring on all members of your family , disclosure of all medical records and psychological assessments.
A two hour continuing NHS financial assessment will also need to be factored into your busy schedule.
But it is rare for funding to be provided for support in the family home, despite the same assessment of need allowing on average £80,000 per annum for such support in private residential care.
An assessor of your loved one’s possible benefits will also need to visit.
During this deluge of bureaucratic, pointless scrutiny, you will need to maintain a spotless, tidy house and care meticulously for your no doubt distressed family member, without support .
You cannot complain, or even voice irritation .
Complaints about provision are not considered and stayed once court proceedings are applied for.
And will be evidence of your inability to work with professionals putting your loved one at risk the basis of the s48 application.
You are trapped, worn out, with no help and no where to turn and have court documents from two sets of solicitors to attend to.
Court of Protection solicitors usually pay for Charity endorsement and Law Society Mental Capacity Accreditation.
They increasingly work for large Alternative Business Structures which market themselves as old style solicitors but are commercially aware corporations with scant competition and no personal liability .
Fees and services are therefore fairly standardised.
These lawyers are also contracted by the government to act as Official Solicitors.
To attend the hearing to remove your loved one in less than 24 hours you will be billed £500 over the phone and informed that this is half the legal aid rate.
On arrival at court you meet your lawyer who liaises with the LA solicitor and tells you that if you agree their Orders, you can avoid the police arriving to remove .
So faced with no option you agree to anything.
If you do not, the judge will usually order what the LA want anyway.
What you are unlikely to be told is that removal of your loved is unlikely at this point, as ‘incapacity‘ has not been assessed, an Official Solicitor not yet appointed and Deprivation of Liberty Safeguards not yet in place.
Your protestation that allegations of parental incapacity, abuse and neglect are out of context, unfair and/ or lies is ignored.
It would appear such allegations do not need to be proved.
In contrast to care proceedings where s31(2) Childrens Act provides it must be proved that a child is suffering or likely to suffer significant harm on the balance of probabilities, there is no such requirement for an adult under the MCA and courts have stated Parliament did not intend there to be one.
Rarely, if ever, will the court hold a specific fact finding hearing on allegations made by social services .
Such a failure of natural justice/ due process can only aid false, unfair accusations against families now that only residential care is funded.
A Local Authority v PB and P, one of the few judgments on fact finding, saw the removal of an ‘incapacitated’ adult from his mother on the basis of her alleged inadequate care.
Charles J noting ‘there are a number of ways in which the best interests issues can be put to the court. Some of them may well involve proceeding on the basis that historical disputes of fact can be left as that and as matters of disagreement .(As they were in this case.) In other cases, that would not be so’.
But no reported cases indicate what these ‘other cases’ might be.
So we haven’t a clue when/if fact finding will be deemed necessary as a separate exercise or even as part of a ‘best interests’ checklist .
And there is no judicial, or practice direction, or indeed any guidance.
So at best, fact finding is ad hoc and rare in today’s clogged up courts where judges are under a statutory duty to have regard to the costs of proceedings.
The allegations upon which hundreds of thousands of families have been torn apart for life, assets seized and liberty lost have never been proved.
Attempts at forcing proof of social services allegations are case management issues and any appeal against refusal is limited to a local High Court judge, and LA and OS legal costs may be payable.
So for now your loved one is still at home, but you have to allow social workers into your house at least once a week, a s49 GP physical assessment, capacity, psychological and financial assessments and NHS Continuing Care Assessments and Carers Assessments.
The evidence gathering continues and the next hearing date is set.
A standard paragraph in the social worker’s statement will strike terror into a family’s heart.
‘ It is the view of the Local Authority that contact with X’s family members should be promoted and it recommends that initially this should take the form of weekly visits of an hour and a half supervised by a worker independent of both the Local Authority and the care home. The worker will report back to the Local Authority their observations during contact and this will help to inform their view on X’s future placement and contact with his family.’
So the future of a parent/spouse/child to be even viewed by their loved one for life is in the hands of a single care worker.
No family concern, spy cameras, possible complaint; no oversight of ‘care ‘other than by the LA/HSCT’s commissioning body’s Adult Services Manager.
And for these services, including medication and restraint, the care provider is exempted from liability under s5 of the MCA which provides;
(1)If a person (“D”) does an act in connection with the care or treatment of another person (“P”), the act is one to which this section applies if—
(a)before doing the act, D takes reasonable steps to establish whether P lacks capacity in relation to the the act
(i)that P lacks capacity in relation to the matter, and
(ii)that it will be in P’s best interests for the act to be done.
(2)D does not incur any liability in relation to the act that he would not have incurred if P
(a)had had capacity to consent in relation to the matter, and
(b)had consented to D’s doing the act.
So your ‘incapable’ loved one in law is deemed to consent to any action deemed in his ‘best interests’ once he is only ‘reasonably’ believed incapable of making the decision by a commercially aware, for maximum profit ‘care’ service .
Yet this is subject to taking all practical steps to see if the person is able to make the decision and the least restriction action, and with regard to that persons known wishes.
How will all this be checked in the world of itinerant. maximum profit care that has a court declaration that that person is incapable of making decisions about their care ?
The standard Social worker’s statement also states;
‘Should more than light restraint be necessary to remove X from the family home and take him to the placement the police are authorised to provide appropriate assistance including forced restraint and any authorised person operating under the terms of this order shall be acting in compliance with section 6 of the Mental Capacity Act.’
But will the police be ‘acting in compliance with section 6 of the Mental Capacity Act.’ ?
No, only if the restraint and removal is needed to mitigate an imminent, life-threatening risk.
That will be rare and involve removal to a hospital not care home.
The ‘Sessey case ‘ held the Metropolitan Police were acting illegally when they assisted a removal on private premises just because the person was suffering from mental health problems.
The LA are already armed with a Court of Protection s48 Order from the High Court of Protection in London granted without the family’s knowledge, let alone right of reply.
This Order, despite its legal interim status authorises the County Court to make any orders it thinks fit including the removal of your loved one if deemed in his ‘best interests’.
But is this legal ?
s48 MCA provides,
The court may, pending the determination of an application to it in relation to a person (“P”), make an order or give directions in respect of any matter if—
(a)there is reason to believe that P lacks capacity in relation to the matter,
( This is usually shown by social worker and GP statements that they believe he lacks capacity, based on his condition- autism, learning disability, alzheimers and his presentation.
Despite the MCA presumption of capacity and ‘incapacity’ based on a person’s disability and appearance alone being prohibited by the MCA.
And what of ‘any matter’? The LA’s S48 application relates to several matters -capacity to litigate, contact, residence and welfare, and is therefore not ‘time’ or ‘subject’ specific as required by the MCA. )
(b)the matter is one to which its powers under this Act extend,
(As MCA powers only extend to people who are ‘incapable’, how can they have such power ?)
(c)it is in P’s best interests to make the order, or give the directions, without delay
(This will be shown in the LA’s application by the alleged abuse/neglect/ safeguarding issues which are not proved and cannot not even be questioned. )
The High Court of Protection has already in the absence of anyone other than the LA applicant on paper, decided the grounds for a s48 Order have been made out, so how can they then be disputed in a County Court hearing this power has been delegated to ?
The stage is set.
Does anyone really believe successive governments care about protecting children and the mentally disabled?
Do they really believe they are worried about our mental health, our NHS and us not being burdened with our parents care ?
If so, why do welfare/mental services continue to deteriorate and how will even more public money help ?
No, such state propaganda is a PR smokescreen and fund raising device to disguise the real purpose- the provision of monopoly privatised, enforced, unaccountable for maximum profit ‘services’.
Allowing the siphoning off of as much public money as possible to their mainly foreign owners.
These multinationals and venture capitalists know, that only in the UK can they find guaranteed and increasing public income, and the opportunity to make huge profits from cheap itinerant ‘care’ of captive drugged consumers with little accountability as the LA/HSC commissioners also employ the providers overseeers.
Such Goldrushes will ultimately apply to most public services.
Lets deal with how the’ mentally vulnerable gold’ is mined.
Those at risk of being ‘incapable’ are targeted by a £433 million army of local safeguarders.
The mental, physical health and wellbeing of family love, reduced to ‘unpaid care’, is assessed by Carer Assessments.
And confidential conversations with GPs, social workers, support groups, neighbours are shared with any relevant party and entered on a Multi Agency Safeguarding Hub Data Base.
Agencies and any ‘support’ will be charged to secretly find ‘safeguarding issues’.
This agenda of information gathering is ruthlessly pursued and increasingly such professionals/ carers are employed on an itinerant, performance package basis by the company providing residential services.
So a conflict of interests exists between their ‘support’ and their continued employment and bonuses.
Because of this’ Arbeit macht frei ‘modus, you will know nothing of the real purpose of the state’s ‘support’ until the Court come knocking on your door with a s 48 MCA application to remove your loved one the next day.
The LA/HSCT’s legal department have been sent the safeguarding issues- unhygienic, disorganised house, insufficient/inappropriate clothing, food, bedding, slipping hazards, derogatory comments, mentally unstable, unfit carers spun and placed, out of context, in social worker and GP statements, all to show your loved one is ‘incapable’, abused and at risk.
A s48 application must be issued out of the High Court of Protection in London so the LA will have already applied there ex parte in secret without any challenge .
Under the auspices of this High Court of Protection Order, all matters can now be dealt with by the local County Court.
Parents/spouse/child will be beyond shock at such a lynching and systemically unable to correct or reply to any allegation. And without a clue as to how to stop the removal of their loved one the next day.
Even if living on state benefits, they cannot get legal aid. And if they could afford advice who would they trust, and what is their status as abusers in a court protecting their loved one ?
The person you know and love is already owned by the State and you cast as his abuser.
Family will not be allowed to represent their son/daughter/spouse/mother/father.
Even if that relative has signed a Lasting Power of Attorney saying they can or they are their public guardian, as there is now a conflict of interests between parent and child, husband and wife.
Their voice is a state Official Solicitor appointed by the Court who they have never met.
Social services may offer ‘support’ to enable you to go to court but now you know it can’t be trusted .
The Nightmare has only just begun.
In an age of gay marriage affecting 1.6% of the population, transgender toilets and a vague Supreme Court pronouncement on wheel chairs on buses, our Local Authorities encage over a million and increasing.
Before the Court of Protection was created, you had to be convicted of a crime or be so mentally unstable you were sectioned before you lost your liberty.
Now anyone declared ‘incapable’ can have their liberty removed for life and not just as a punishment or for treatment .
And worse still all aspects of their existence controlled.
So what law gives a court such God like power ?
s 4A MCA states;
This Act does not authorise any person (“D”) to deprive any other person (“P”) of his liberty.
But that is subject to the following provisions of this section, and section 4B.
D may deprive P of his liberty if, by doing so,
D is giving effect to a relevant decision of the court [or Protection] … D may deprive P of his liberty if the deprivation is authorised by Schedule A1 (hospital and care home residents: deprivation of liberty)
If it is not to give effect to a court of protection decision nothing in the MCA allows deprivation of a person’s liberty, even where they lack capacity unless it is necessary to provide life-sustaining treatment or to prevent a serious deterioration in their condition and this is the only practical way in the circumstances. See s4 B.
So there we have it, if the Court of Protection decides it is in your ‘best interests’, they can deprive you of your liberty effectively for life.
The Deprivation of Liberty Safeguards came into force in 2009 included in the 2007 Mental Health Act, as an addition in Schedule A1 to the 2005 Mental Capacity Act.
Created solely on the excuse of the incompatibility between English Common law, not the MCA/MHA, and Article 5 of the European Convention on Human Rights ( right to liberty) revealed by HL v UK, the ‘Bournewood’ case.
The creation of DOLs enabled a procedure, whereby people who lacked ‘capacity’ under the MCA, could, if deemed necessary in their ‘best interests’ be lawfully detained in a hospital or care home.
HL v UK held England’s common law detention on the grounds of necessity was incompatible with Article 5 of ECHR
The autistic gentleman HL, could not be detained under MHA 1983 as he was autistic and as non verbal deemed incapable of being able to consent to treatment.
HL’s legal loophole has since been remedied by the MHA 2007, definitively making behavioural disorders like autism, mental disorders and then using the MCA to assess ‘capacity’ and decide ‘best interests’.
So it would appear HL v UK, ironically, gave the UK government the excuse, to watertight its legislation to remove the liberty of the ‘incapable’ because it was in their ‘best interests’ avoiding any ECHR challenge on its lawfulness.
Article 5 litigation in the ECHR does not appear to inquire into the reasonableness and merits of the process by which liberty is removed, only that it is ’ lawful’..
Adult Protection Departments appear, on the excuse of ‘safeguarding’, to be facilitating ever more efficient/profitable care by LA commissioned providers.
Remember the horrific effect of DOLs, removal of any objection as to when or what you eat, who you see, where you live, when you go out and where and even when you wash and how.
Forced medication and encagement.
Yet, once you are deemed MCA ‘incapable’, all that is needed by a private provider to do any of these and more is an effectively a rubber stamped DOL.
195,840 DOLS applications were received by councils from care providers in 2015-16.
The highest number recorded since DOLS were introduced in 2009, representing 454 DOLS per 100,000 adults in England.
As these are applications are by care providers, I assume these will not include new removals to residential care whose DOLs are granted by the Court of Protection.
So these need to be added.
We need statistics for the actual number of those in state ‘care’ subject to DOLS per se.
The statistics show large variations between regions .
The North East had almost three times as many (900 per 100,000) compared to London (319).
The remaining regions between 400 and 500 applications per 100,000 adults in 2015-16.
105,055 successful applications were reported in 2015-16, compared to 62,645 in 2014-15.
An increase of 68%, following a 380 % increase in successful applications between 2013-14, and 2014-15 (from 13,040 in 2013-14).
Of the 105,055 applications in 2015-16, 76,530 (73 per cent) were granted and 28,530 (27 per cent) were not granted.
This may point mainly to the fact, they were not a deprivation of a person’s liberty and therefore not needed.
The North East has the highest rate with 665 applications per 100,000 residents.
This is more than two and a half times the next highest region, the South West (258).
The other eight regions display some variation, with the South East having the lowest rate of 179 per 100,000 residents..
Although the proportion of applications granted was relatively consistent across most regions, only 44 per cent were granted in the South West, whereas 86 per cent were granted in the North East and London.
Councils are unable to cope with the number of applications and backlogs have resulted in some urgent applications, not being signed off for seven months, rather than the seven days required by law.
Official figures released last week by NHS Digital revealed the DOLS case backlog hit 101,750 in April 2016, up from 75,000 the previous year.
Local Authorities have resorted to the use of desktop assessments, to grant deprivation of liberty orders in a bid to clear a backlog of more than 100,000 referrals
And DOLS trainer and a best interests assessors raised concerns that desktop assessments risked losing a key check and balance in the process.
So much for Magna Carta.
The new age of for profit Britain requires a monopoly of increasing, maximum profit commodities.
Whilst the Mental Health Taskforce Report harvested, it said nothing about how it intended to improve the state of our mental health hospitals and services, despite their ever increasing budget eating a quarter of our NHS funding.
Over a third of mental hospitals are now privately owned and no new admissions to public hospitals are now funded.
See the statistics for formally sectioned under MHA inpatients here from NHS digital.
Hospitals are paid on average £900 per patient per night, and locked wards £12,500 a week.
With such huge sums on offer, is it any wonder we have the highest number of MHA detentions and retentions ever known.
And the highest number of detentions after s2 MHA assessment stay only.
Consent to treatment before the first administration of medication improved in 2011/12 to 55%, up from 46% in 2010/11.
But this still means that in almost half of all treatments, the CQC found no evidence that doctors had talked to patients about whether they consented to this treatment.
Unless consent is removed by an assessment which was not the case this is an actionable battery and in breach of HRA.
The only rights a patient has, is to information about their treatment and to appeal to a Tribunal, but patients are not being informed of them, despite access to IMCAs.
Neither families nor patients are being involved in ‘treatment’ the CQC stating;
‘The biggest issue we found for patients who were subject to the MHA in 2014/15 was a lack of support to be involved in their care and treatment. This included the information they were given, access to external support such as advocacy, and care planning. We are concerned by this finding, as not supporting patient, family and carer involvement may limit people’s recovery and could result in longer stays in hospital, poor discharge or an increase in the potential for readmission’
CQC Second Opinion Doctors change a third of treatments.
The actual number of deaths are unknown, only notifications to CQC and these are increasing.
Unlike deaths in prisons, where independent investigations are mandatory, in mental hospitals they still aren’t, despite this CQC statement in 2014/15;
‘We are concerned by the lack of an independent system for investigating the deaths of detained patients in healthcare settings, and believe there is much greater opportunity for learning to take place when deaths occur, and for improvements to be put in place. We are awaiting the publication of the Mental Health Taskforce recommendations, but we would welcome suggestions for the Department of Health to consider establishing a new system for investigations’.
But there has been no recommendation for an independent investigation system.
And the only possible investigation into a death in by a Coroner.
And as Thomas Rawnsley’s death showed, there is no legal aid for families, toxicology reports are not standard, and narrative verdicts now the norm.
Juries under new Rules are no longer available as they were under Article 5, if a patient is held under a Deprivation of Liberty Order under the MCA which is increasingly the case.
An ‘incapables’ representation will only be paid for, if it is from a solicitor recognised by the Legal Aid Commission.
Because of this, after 20 years of representation, the Moors Murderer Ian Brady’s solicitor, Robin Maxin, can no longer represent him.
So investigations into deaths and patient’s rights are getting worse not better.
Hospitals are not following the MHA Code of Practice nor providing information and data systems to evidence this, despite this statement from CQC in 2015;
‘In our monitoring of the MHA we expect to see providers following the standards of the Act and its Code of Practice, and have information and data systems in place that tell them where improvements are needed. However, our findings have shown that services were struggling in 2014/15 to meet the previous Code and failing to collect or review information for use by leadership teams.
This includes significant under reporting to the national data sets in 2014/15, with variation between the returns to the KP90 (of 58,399 uses of the Act) compared to the returns to the Mental Health Learning and Disabilities Minimum (of just 41,592). We highlighted the importance of data and transparency in our State of Care’
And reported figures for care planning, patient involvement and discharge planning show unacceptable variation in meeting the MHA Code’s expectations.
Despite calls for the Policing and Crime Bill, to ban the use of tasers in mental hospitals, it was silent, and their regular use in secure wards continues, unmonitored by the CQC.
In one London Trust alone FOI notices revealed 617 emergency calls to police in 2015/16.
Why ? When these wards cost £12,500 per week of public money per patient .
All new mental health inpatient beds are in private hospitals, public beds are being phased out, so even greater vigilance and information is needed, in this for profit ,no accountability,totalitarian regime.
Here are CQC Reports from 2011-2016 with my comments in blue.
CQC, ‘Monitoring the Mental Health Act in 2015/16’
These are the key points from Part 1 (“The Mental Health Act in action”) and Part 2 (“CQC and the Mental Health Act”) respectively:
(1) We have seen examples of good practice and innovative approaches to overcoming areas of concern highlighted in our previous reports. We have met thousands of staff who are compassionate and dedicated to providing the best support and treatment they possibly can for their patients.
(b) Staff had received training on the changes in the Code, or the revised policies and procedures to reflect its guidance, on less than half of wards we sampled.
From 2016, we have taken these failings into account and use them to inform the ratings we issue to providers.
(Why would monopoly, chosen providers worry about ratings, when there is no competition, the public have no choice, the CQC have no teeth, so effectively there is no regulation. Just collation of information and even that is voluntary and hugely variable. )
(c) Overall, the figures for care planning, patient involvement and discharge planning subject areas show unacceptable variation in meeting the Code’s expectations, similar to those recorded in the 2014/15 report.
Some services need to address the quality of care in these areas for people detained under the MHA.
(d) One in 10 records do not show evidence that patients have had their rights explained to them at the point of detention. This leads to patients not knowing what to expect, or understanding their rights under the MHA.
(And these ‘Rights’ are only to know what will happen to them via access to IMCA, and a right to appeal to a tribunal, but if assessed ‘incapable’ which is increasingly the position, their legal representative can be chosen by that Tribunal).
(e) We were notified of 201 deaths of detained patients by natural causes, 46 deaths by unnatural causes and 19 yet to be determined verdicts.
( We do not know how many deaths have not been notified, so have no definite number of deaths
Shockingly a third of deaths are not of natural causes. And why weren’t those two thirds who died of natural causes not transferred to medical hospitals that might have saved them ?
Where these natural causes pneumonia, heart failure, caused by medication as why else would so many die ?
This shows the physical health of those in mental hospitals is being ignored.
Reported deaths by unnatural causes rose from 36 to 48 in 2012/13 ie a third, compared to the previous year)
(a) We carried out 1,349 visits, met with 4,282 patients and required 6,867 actions from providers.
(b) Our Second Opinion Appointed Doctor service carried out 14,601 visits to review patient treatment plans, and changed treatment plans in 27% of their visits.
(So nearly a third of all treatment was wrong.)
(c) We received 1,422 complaints and enquiries about the way the MHA was applied to patients.
Issues identified included medication, care provided by doctors and nurses, leave arrangements and safeguarding concerns.
Monitoring the Mental Health Act in 2014/15
“There are 57 mental health NHS trusts and 86 independent mental health hospitals registered with CQC.
Throughout the year we visit these services to interview patients and review practice.
During 2014/15, 51% of all mental health inpatients were subject to the Mental Health Act 1983 (MHA) with 19,656 detained inpatients on 31 March 2015.
We carried out 1,292 MHA visits, meeting over 5,900 patients to discuss how the MHA and its Code of Practice were being applied to them.
Our Second Opinion Appointed Doctors also made 14,375 visits to patients in hospital and the community and we received 227 notifications following the death of people detained in hospital.”
Findings (headings from Summary chapter):
(1) There is unacceptable variation in the way providers are applying the Code of Practice;
(2) Providers are failing to make sure patients receive the support they need to be involved in their care;
(3)Greater priority needs to be given to deaths in detention;
(4)Providers must manage and monitor their use of the MHA better;
(5)Understanding and improving the way the Mental Health Act is being applied for patients must be a priority for all.
CQC, ‘Monitoring the Mental Health Act in 2012/13’
The following are the report’s key findings for each chapter, and its concluding recommendations:
(1) The use of the Mental Health Act in 2012/13.
(a) The number of detentions continued to rise, with the highest number of uses of the Act ever recorded. The national statistics on use of the Act showed a rise in detentions, whether these are at the point of admission to hospital or subsequent to informal admission.
(b) In 2012/13, 27% of recorded outcomes of section 2 detentions (first assessment ) showed that the patient continued to be detained.
This is a small but significant rising trend from the 24% in the previous year.
(So increasingly more people are being forcefully detained just for assessment, without a dignosed mental disorder.)
(c) Since the introduction of community treatment orders (CTOs) in 2008, the power had been used 18,942 times by 31 March 2013.
(d) Data available for 2012/13, as in previous years, showed a continuing trend in high rates of detention among certain black and minority ethnic groups.
(e) Data on self-harm, restraint, assaults and seclusion, which were previously collected for inpatients in the Count Me In census, are now being collected through the Mental Health Minimum Data Set.
CQC is looking at how we can use this data to monitor the experience of inpatients, including any associations with ethnicity.
(2) A service responsive to people’s needs.
(a) Some progress has been made in this area, although there is still a long way to go, with evidence that care plans and risk assessments had not considered the principle of least restriction in 10% of wards visited.
(b) 27% of care plans we reviewed in six months of 2012/13 showed no evidence of patients being involved in their creation.
And at least 22% of care plans showed no evidence of patients’ views being taken into account.
This is no improvement on our finding in 2011/12.
(c) Inadequate discharge planning can lead to prolonged periods of detention and we are very concerned there was a lack of evidence of discharge planning in 29% of the care plans we viewed.
The Code of Practice is clear in its expectations for providers to consider aftercare with all detained patients and we expect this to be evident for all patients subject to the MHA.
(d) We are pleased to report almost all wards had access to Independent Mental Health Advocacy (IMHA) services. This is a considerable improvement in basic access to IMHAs with 92% of wards reporting direct access for patients to IMHA
(e) However, there was no improvement in evidence of patients’ rights being explained to them.
In the last two years we have not seen adequate evidence of discussions with patients about their rights in at least one in 10 wards.
(3)Ways in which people are subject to restrictions.
(a) We continued to see widespread use of blanket rules. Some type of blanket rule was in place in more than three quarters of the wards we visited.
Such practices have no basis in law or national guidance on good practice and are unacceptable.
(b) In 46% of cases reviewed the reason given for the blanket rules was ‘hospital policy’.
We were also told it was because of a historical incident, or in 13% of cases no-one seemed able to give a reason.
(c) The most common restrictions related to using the internet and mobile phones, smoking, and access to secure outdoor space and communal rooms.
In many cases these rules applied across the ward to both detained and informal patients.
(d) Overall, about a third of ward managers told us the police had been called to their ward at least once in the previous 12 months to help contain patient behaviour.
(e) We continue to hear accounts of patients’ experiences of being restrained.
We promote examples of good practice where providers of inpatient mental health services have taken positive steps to reduce the use of restraint.
(4) Consent to treatment.
(a)We continue to observe that in a significant proportion of records there are no recorded assessments of patients’ consent or capacity at the point of admission or at the three month stage in detention.
(b) We noted improving good practice in helping patients to draw up advance statements of their preferences for care and treatment.
(c) In 2012/13, we arranged 13,520 visits by Second Opinion Appointed Doctors (SOADs).
This is the heaviest demand for second opinions to date.
This was despite an amendment to regulations that, from June 2012, removed the legal requirement for second opinion certification in the case of consenting CTO patients.
(d) Where the treatment plan proposes medicine above BNF limits our SOADs are twice as likely to make significant (8%) or slight changes (32%) to the prescribed treatment as when it falls within BNF limits.
This gives an indication of the safeguard provided by our SOADs against unwarranted treatment.
(5) Access to care during a mental health crisis and the Mental Health Act.
(a) In some areas difficulty in accessing Approved Mental Health Professionals (AMHPs), with waits of over four hours out of hours, are being reported.
(b) In 2012/13, there were 21,814 uses of section 136, with over 7,500 estimated to involve the use of a police cell. This is a decrease of 7% on the previous reporting period.
(c) Only 17% of recorded uses of hospital- based places of safety under section 136 resulted in further detention, following assessment by mental health professionals.
(d) In one area police told us that 41 young people had been detained in police cells over the previous year, the youngest of whom was 11. This is unacceptable.
(e) Health-based places of safety are often not staffed at all times. This has led to hospital places of safety lying empty while a patient is taken to police custody.
(f) When we met with carers through our MHA monitoring they told us they were not always provided with enough information to understand the role and function of services or how to get help in a crisis.
(6) Deaths of patients subject to the Mental Health Act.
(a) In 2011/12 and 2012/13 we were notified of 595 deaths in total.
There were 511 deaths of detained patients, and 84 deaths of patients subject to CTOs.
(b) We support the recommendation of the Ministerial Board on Deaths in Custody that, NHS England – with input from CQC and the Coroners Society – should produce clear and consistent guidance on how all mental health providers should undertake investigations following the death of a detained patient.
(c) We will be working with others to review national data and how this can be combined and shared to improve scrutiny and embed learning.
We believe this will improve national understanding and our ability to work together to protect patients’ rights and increase safety.
(d) We have introduced a patient safety outliers programme ( as outliers are statistical variants, this can only record consistency) in mental health and will be using the data from this and our collaborative work with other national organisations to inform our understanding of providers and our assessment of how safe their services are.
(e) The total number of reported deaths by unnatural causes for detained patients deaths reported to CQC rose from 36 to 48 in 2012/13 compared to the previous year.
(7)Conclusions and next steps.
We expect to see change in the following areas:
(a) Hospitals must ensure that their policies promote the principle of least restriction and that their staff are supported to promote the dignity and autonomy of people in their care.
(b) Hospitals must promote cultures that support therapeutic practices and reduce to a minimum the use of restraint and seclusion.
The principles of the Code of Practice and the emerging national evidence on restraint need to be considered by all services.
We expect ( but what happens if they do not?) detaining authorities to audit and review their local practices to minimise the use of restraint and seclusion.
We expect to see evidence of coordinated care planning that allows patients’ preferences to be taken into account. This is to promote individual choice and involvement in avoiding or managing episodes that may otherwise result in restraint or seclusion.
(c) NHS and local authority service commissioners of mental health services must act on these findings and on guidance in the Implementation Framework to the national mental health outcomes strategy to improve access to services and outcomes for people with mental health problems.
We expect Clinical Commissioning Groups to ensure that local special urgency arrangements (section 140) are clear and provided to local authorities.
(d) Commissioners and providers of mental health services must be proactive in initiating and embedding learning from the deaths of people subject to the MHA.
We expect to see alignment of local preventative and investigative work with the national findings on mental health related deaths.
This includes emerging guidance from national bodies and the use of the National Confidential Inquiry into Suicide and Homicide by People with Mental Illness toolkit.
We expect ( no duty) services to notify us of deaths of detained patients and patients who are on a community treatment order at the time of their death.
Monitoring the MHA 2011/12 published 30/1/13
following are the report’s key findings for each chapter, and its concluding recommendations:
(1) Use of the Act:
(a)The number of people subject to detention under the Act is rising.
The number of detentions rose by 5% on the previous year; the number of community treatment orders rose by 10%.
(b) Of the 4,576 patient records checked in 2011/12, 4% showed irregularities that called the legality of the detention into question.
(c) Care planning was the most frequently raised category of concern; 85% of the care plans examined showed evidence of individualised planning, regular review and evaluation, 15% did not.
This was no change on 2010/11 and amounted to just over 650 patients where basic expectations about care planning were not met.
(d) The greater detail now available in the Mental Health Minimum Data Set has exposed a number of data quality issues that must be addressed before the data can realise its full potential.
(2)Participation and Respect:
(a) CQC’s MHA Commissioners visited many mental health wards where a great deal of respect was given to patients.
(b) Patients were able to influence the running of their ward in almost all cases – 94% of all wards in 2011/12, up from 90%.
(c) Patients were more involved in planning their own care: their views were recorded in 63% of care plans, a rise from 58%. But this means an unacceptably high proportion – more than a third – did not have their views written down.
(d) More than half of patients were still not given a copy of their care plan.
(e) Most patients (90%) were given general information about their rights when they were first detained.
(f) But one patient in five was not informed of their right to an Independent Mental Health Advocate (IMHA).
(g) This may reflect continuing difficulties that some services have in accessing IMHAs.
There was no evidence of an IMHA service in one in seven of the wards CQC visited.
(3) Coercion in practice:
(a) The human rights of patients are often affected by controlling practices that only seem to serve the hospital’s needs.
Hospitals have a difficult task in balancing the realities of detention and compulsory treatment with the requirement that they provide services according to a principle of least restriction on patients.
But it has proved all too easy for cultures to develop in which blanket rules deny people their basic rights – especially the right to dignity
(b) In one in five visits – an unacceptably high number – MHA Commissioners thought that patients who were in hospital voluntarily might be detained in all but name. For example, in 88 out of 481 visits there were no signs on locked doors that explained to voluntary patients how they could leave the ward.
(c) On 24 occasions, patients had been secluded but the ward staff had not realised this was classed as seclusion and they had not applied the proper safeguards.
(d) In many hospitals restraint practices are generally safe and appropriate. Almost all staff will now have some degree of training not only in physical methods of restraint, but in ways to prevent confrontational situations.
(e) However, CQC is still concerned at the lack of regulation of training programmes with regard to restraint. Safeguards could be improved.
(f) CQC is talking with the Department of Health about how to promote best practice around support for positive behaviour.
(4) Care pathways
(a) CQC saw evidence that many Approved Mental Health Professionals are trying to find alternative care for people that avoids them having to be detained in hospital.
(Now that more private beds have been created to demand, this may well have reduced)
(b) Pressures on beds continued to put services and patients under stress, making it harder to provide appropriate care for people in times of crisis.
In 2011/12, 93 wards (6% of all wards) visited had more patients than beds; a further 10% were at full capacity.
(c) Patients are being affected by reductions in staff numbers.
For example, MHA Commissioners raised concerns in 77 visits that a lack of staff prevented patients taking escorted leave.
( Why ? When secure wards can charge up to £12,500 per patient ?)
(d) In some services MHA Commissioners saw excellent examples of patients benefiting from psychological therapies. But in others, services were too ready to rely on psychiatric medication as their response to patients’ distress.
(e) Patients are benefiting from good discharge planning in a number of units – with considerable investment in time and effort being spent in identifying step down accommodation and suitable support arrangements.
( But are these effectively just to another institution, like the LD/autistic 133 million drive to ‘community living’.)
But an unacceptably high proportion – more than a third of care plans – still showed no evidence of discharge planning.
(5)Consent to treatment:
(a) Consent to treatment discussions, before the first administration of medication, improved in 2011/12 – 55% of records showed these, up from 46% in 2010/11.
But this means that in almost half of cases there was no evidence that doctors had talked to patients about whether they consented to proposed treatment.
(In any event, there is no right to refuse treatment, unless ECG, only appeal against it, to a hospital tribunal)
(b) There was better evidence of consent discussions after the first use of medication (72% of records).
(But can this be taken as consent ,in view of the effect of medication, and is not consent to the first medication )
But still this means consent was not discussed in more than a quarter of cases.
( Consent is an even more important issue, since an amendment to regulations from June 2012, removed the legal requirement for second opinion certification in the case of consenting CTO patients.)
(c) One patient in 10 receiving medication for three months or more, was prescribed medication above the legally authorised care plan.
(d) In CQC’s view, the assumption of a patient’s capacity to consent to or refuse treatment should be backed up by a written record.
More than a third of records did not show any evidence of a capacity assessment 42% on admission; 36% at the end of three months or the last administration of medication.
( This is important issue, as mentioned as lack of consent, removes second opinion certification requirement, and also allows the Mental Health Tribunal to appoint a legal representative on any application to them ).
(e) Patients may be reluctant to say what they think about their treatment in public, particularly in a traditional ward round. CQC saw some good services that have developed private arrangements instead of ward rounds.
( Most will not have been told the long term effect of their medication, which is the main/only treatment, and be subject to its effect and the effect of their mental distress)
(6) Community Treatment Orders:
(a) CTOs are used widely by some providers, and used little by others.
In an analysis of NHS organisations, the lowest reported ‘discharge rate’ onto a CTO was 4.0%; the highest was 45.5%.
Why such huge variation what was the private/public split ?
(b) There were also a number of NHS organisations – with considerable rates of detention under the Act – that provided nil returns for the use of CTOs.
(c) A number of patients are worried that it isn’t clear when a CTO will have served its purpose – and therefore they do not know what they have to do to come off a CTO.
(a) Policy makers must consider the reasons why there are rising numbers of people subject to the Act and develop an appropriate policy response.
(b) The Boards of mental health trusts, independent providers of mental health care, and community trusts are responsible and accountable for the quality of care people receive.
They must drive the changes needed in their organisations
In particular they need to recognise and promote good practice and ensure that robust mechanisms are in place to understand individuals’ experience of their services.
(But how . when board members are being made directors of the private companies that run the organisation, so a conflict of interests, between their duty to make profits, and their own salaries and that to make changes )
CQC reminds providers of their own duties to monitor how they use powers derived from the Act (see the Code of Practice) and their duties under the Health and Social Care Act 2008 to demonstrate how they have learned lessons from practice and have made consequent improvements.
This is an area that CQC will focus on in the next 12 months in its regulatory activity.
(But there is no accountability for breach of these duties. Even if so severe they warrant a public enquiry, as with Staffordshire Health Trust, it will be fined and go into administration the loss set off against other assets.)
(c) The NHS Commissioning Board, local authorities, clinical commissioning groups and specialist commissioners must commission services that guarantee a person’s dignity, recovery and participation.
Clinical commissioning groups and local authorities must ensure that local needs assessments for community services and commissioned models of care are informed by an understanding of their statutory duties under the Act and by the experiences of people who use services.
On the 4th February 2015 Thomas Rawnsley’s life support unit was switched off.
He was just 20, Downs and autistic but physically fit.
It is 4 years since Thomas was removed from his sisters and mother to Norcott House to his ‘independent’ life in his own bungalow in his ‘local community’ with 24/7 support .
But Norcott House carers blew the whistle after a particularly horrific night shift, when a worker who had been targeting and abusing Thomas for six months, kicking him into his bedroom and….continues @ source https://finolamoss.wordpress.com/page/2/