Monitoring the Mental Health Act in 2021 to 2022

In both our 2019/20 and 2020/21 annual reports, we raised concerns about the increasing demand for services, which has been exacerbated by the COVID-19 pandemic. As reported in our 2020/21 State of Care report, this increasing demand, combined with a lack of capacity in community mental health services, means that people are not getting the care and support they need when they need it. This was supported by the findings of our provider collaboration review on mental health care of children and young people during the COVID-19 pandemic. For example, one system told us how staff from a GP out-of-hours service felt there was no point in referring on to CYPMH services as demand and thresholds were so high.

Similarly, in our community mental health survey 2021 41% of all respondents reported feeling they had ‘definitely’ seen NHS mental health services often enough for their needs in the last 12 months. This was the lowest score across the period from 2014 to 2021.

Not being able to access the right care and support when it is needed increases the risk of people’s mental health deteriorating, and people being admitted to mental health services with more severe mental ill-health.

As part of NHS England’s plans to improve mental health outcomes, the 2016 Five Year Forward View for mental health and subsequent action plan set out an ambition for Crisis Resolution and Home Treatment Teams (CRHTTs) to offer intensive home treatment as an alternative to acute inpatient admission in each part of England by 2020/21. NHS England reinforced their commitment to this aim in the NHS Long Term Plan. However, the impact of the pandemic will have stalled a full implementation of this aim, while increasing demand. Staffing shortages will continue to frustrate the aim for some time to come.

Through our work looking at the progress from our thematic review ‘Out of sight – Who Cares?’, NHS England and NHS Improvement told us they are also investing £2.3 billion of additional funding in mental health services by 2023/24 as part of the NHS Mental Health Implementation Plan. Some of the investment includes:

• almost £1 billion additional funding for new models of integrated primary and community services for adults with serious mental illness
• around £300 million in enhancing adult mental health crisis services, including a range of alternative crisis services in every part of the country
• all mental health crisis services to be ‘open access’, through 24-hour urgent mental health helplines, by 2024. This means that anyone can self-refer and there should be no exclusions. NHS England and NHS Improvement will share guidance on making reasonable adjustments for people with a learning disability and autistic people who call these lines
• ring-fenced investment in models such as crisis houses, sanctuaries and crisis cafes in all parts of the country.

While we welcome this additional funding, current gaps in community support mean that demand for inpatient services has again grown during 2021/22. This, combined with issues around staffing and bed availability, is putting pressure on inpatient services.

The development of integrated care systems (ICSs) as new commissioning models may be an opportunity for a more joined-up review of service provision, in the widest sense, across local areas.

Pressure on inpatient services

In February 2022, NHS Confederation published their report ‘Running hot: the impact of the pandemic on mental health services’. This showed the effect of increased demand on inpatient services, with services reporting a steep rise in the severity of the mental health needs of the people presenting to their services after the pandemic, and highlighted the pressure this is putting on them.

This echoes the findings from our MHA reviewer visits, with many mental health services telling us they have been busier since the COVID-19 pandemic, both in terms of volume and acuity of cases presenting to them. Acuity is defined as the severity of illness and/or level of attention or service required from professional staff.

However, in line with last year’s report, many services are running close to or above bed capacity. As highlighted in our 2018/19 and 2020/21 reports, high bed occupancy may also be a factor in rising levels of detention under the MHA.

We have seen examples of wards that cannot physically accommodate all of their patients, even taking overnight leave into account. This is leading to contingency-planning arrangements for some patients to ‘sleep-over’ on other wards, which can disrupt their care and that of other wards’ patients.

We have also challenged services where they have routinely used seclusion rooms as bedrooms. By necessity, seclusion rooms are less welcoming spaces for patients and will rarely meet the standards of other patients’ rooms. It also creates a problem should the ward need to use the seclusion room for its intended purpose.

While some services are managing to accommodate patients without extended delays, many others are struggling to provide a bed. This can leave patients in crisis in vulnerable and unsafe positions, places community services under additional strain, and leads to people being cared for in unsuitable environments, such as health-based places of safety, for prolonged periods.

Under sections 135 and 136 of the MHA, patients may be admitted to a health-based place of safety for up to 24 hours. However, we have found that this time limit is regularly breached because of delays in accessing an inpatient bed.

In some services, we continue to find health-based places of safety being used as ‘swing beds’ attached to inpatient wards, with patients being held there until a bed becomes available. This can have the effect of worsening the overall situation, by preventing further admissions to the health-based place of safety.

A number of services have told us that the health-based places of safety are often fully occupied, so people are routinely taken to emergency departments. This echoes the concerns raised in our 2021/22 State of Care report, where we reported that we have continued to see increasing numbers of people in crisis and in need of support attending emergency departments.

We have similar concerns around the pressure on psychiatric intensive care units (PICUs). These small, highly staffed units are designed to provide short periods of rapid assessment and intensive treatment, and help to stabilise patients before or during admission to inpatient care. The PICU model relies on services’ ability to manage admissions and discharges according to clinical need. Shortages of inpatient beds elsewhere can lead to use of PICU even though this is not the most appropriate clinical environment, and to discharge or transfer delays from both independent and NHS PICUs. Such delays create barriers to new appropriate admissions, with knock-on effects across patient pathways through inpatient care.

Discharge delays

As well as increasing pressure on inpatient services to admit patients, gaps in community and social care services can also lead to delays in discharging patients from hospital.

For example, at one PICU we visited we noted the delay in discharging a patient who was no longer detained under the MHA. We raised concerns that the restrictive environment of the PICU was not suitable for the person as an informal patient and was not following the principle of least restriction. In response, the unit took steps to support the person in line with least restrictive practices, and ensure the patient was transferred at the earliest possible opportunity.

This was not the only example we found where people have been discharged from formal detention but remain in hospital because of external delays. This has led, in some services, to the development of ‘sub-acute’ wards whose core purpose is to accommodate patients whose discharge from inpatient care is delayed. In other cases, external delays mean that people have remained detained under MHA powers, potentially past the time when this would be clinically justified.

Planning for discharge and aftercare should begin from admission, and include social work input across every patient’s pathway through services. However, we are concerned that social work support to some inpatient services has reduced during 2021/22.

On a visit to a forensic low secure unit in September 2021, we were told that the restructuring of community services meant social workers were no longer being allocated to the wards. As a result, requests for specific interventions had to be made via a referral. Staff told us that this reduction in the availability and input of social workers could lead to delays in patient pathways. Staff were also concerned that the time they spent completing health funding application forms was more time away from patient engagement. While the trust told us that this was an interim arrangement, it is clear that these types of arrangements cannot provide the best possible service to patients and their families.

Delays in discharge can be made worse where people have been placed in hospitals out of area. For example, this can increase challenges around communication with community mental health teams and securing appropriate community support back in the person’s local area.

In addition, as highlighted in last year’s report, it can also lead to issues around which local authority area is responsible for paying for the person’s care. This year, we have seen many examples of delays due to commissioning and local authority disputes over who should be responsible for providing or paying for aftercare, together with problems with social care funding and placements.

All of these issues can have a negative impact on patients and lead to them staying longer in hospital.

Children and young people’s mental health services

The broader problem of lack of capacity in mental health services, together with increased demand, is also seen in services for children and young people. Demand for these services has continued to increase during 2021/22. We have seen evidence of this increased demand leading to delays in people accessing help, and people being cared for in inappropriate settings such as acute medical units and general children’s wards, sometimes for extended periods.

Children and young people who are being cared for in unsuitable settings are at increased risk of poor experiences when moving services and poorer outcomes. Care and discharge planning can be disjointed, staff can feel unprepared and unsupported, and the child or young person and their parents or carers can have a negative experience of care. In October 2022, we published our brief guide on the care of children and young people in unsuitable hospital settings, which shows the measures we hope to see to improve the suitability of placements.

Under the MHA, hospital managers have a duty to ensure that children and young people are cared for in an environment that is suitable for their age and needs. Where a patient under 18 years of age is admitted to an adult ward for longer than 48 hours, the hospital managers must tell CQC.

In 2021/22, these notifications showed there was a 32% rise in the number of under 18s admitted to adult psychiatric wards (260 admissions in 2021/22 compared with 197 in 2020/21). The main reason given for admitting the child to an adult ward (70%, 182 admissions) was because there was no alternative mental health inpatient or outreach service available for children and young people. In over half of the notifications received, providers recorded that the child needed to be admitted immediately for their safety (58%, 152 admissions). Only 13% of providers recorded that admission to the adult ward was clinically preferred and 4% that it was socially the preferred option. (Note: these figures are an update to those we reported in this year’s State of care report, following updated analysis of the notification returns.)

Most of the admissions were under the MHA, with the most common legal status at admission (54%) being the MHA section 2 power of admission for assessment and/or treatment, lasting up to 28 days (figure 1).

Figure 1: Admissions of children and young people to adult wards for longer than 48 hours, by MHA section, 2021/22
 

Source: CQC, notifications data, 2021/22

Without access to the right care at the right time, we have also seen children and young people ending up in emergency departments or health-based places of safety. Even with designated mental health spaces, emergency departments can be unsuitable places to hold and assess people with mental health needs.

Where there are delays in accessing a mental health bed for children and young people, health-based places of safety can often be the least worst option. These are generally self-contained, relatively modern built environments and, if staffed appropriately, may be a tolerable experience for patients, provided the situation does not extend over many days.

Some CYPMH services are investing in dedicated health-based places of safety, echoing the model in adult acute care. While this is a welcome development, services should monitor the local use of section 136 powers for children and young people, as high use of this power could indicate gaps in service.

As highlighted in the section on staffing and impact on patient care, staffing shortages can also lead to delays in children and young people accessing mental health inpatient care. This includes shortages in specialists to carry out assessments, as well as issues with staffing levels on inpatient wards. In some cases, this has led to services reducing bed numbers. For example, on our visit to one CYPMH hospital in March 2021, we heard how issues with staffing levels and problems with recruitment had led to the hospital reducing its capacity by half, leaving 11 beds to serve the whole county in which the hospital was located. At the time of our visit there were 26 children and young people from the county being accommodated in out of area mental health beds.

As noted in this year’s State of Care, we are particularly concerned about delays in accessing eating disorder services, with some mental health units for children and young people struggling with increasing numbers of patients with eating disorders and higher levels of distress and clinical need.

As with other mental health services, CYPMH inpatient services are operating above recommended levels of occupancy and many have delayed discharges due to blockages in other parts of the care pathway. In some cases, we have seen patients remain in such placements beyond the age of 18 as they await a suitable follow-on placement.

Pathways for people with a learning disability and autistic people

Care for people with a learning disability and for autistic people is still not good enough.

Two years ago, our report ‘Out of sight – Who cares?’ shone a light on the consequences of people not getting the right care and support in the community when they need it. This, we highlighted, can lead to crisis point and admission to a mental health hospital. We also raised our concerns that while admission to hospital – where it is appropriate at all ­– should be temporary. However, poor environments, lack of discharge planning and difficulties in finding suitable community placements were leading to people staying in hospital for years.

In last year’s report, we published the findings from our thematic reviews and involvement in the Independent Care (Education) and Treatment Reviews (IC(E)TRs). This again showed that a lack of community alternatives and poor commissioning decisions had led to people being admitted to hospitals that were a long way from home for prolonged periods of time. Over a third of the people we reviewed had been in hospital for between 10 and 30 years.

In March this year, we published our update report on the progress made since our Out of Sight report. Of the 17 recommendations made, we found that just 4 had been partially met and 13 had not been met. We also found that too many people with a learning disability and autistic people are still in hospital, many of whom are often subject to extreme delays in being discharged.

Being placed in hospitals that are far from friends, family and support networks for prolonged periods can increase the risk of closed cultures developing. This is a poor culture that can lead to harm, including human rights breaches such as abuse. In these services, people are more likely to be at risk of deliberate or unintentional harm.

While much of the focus on this group of people has centred around specialist assessment and treatment units, many people with a learning disability and autistic people are also stuck in other types of inpatient mental health services. These are often not therapeutic environments, with services struggling to meet people’s needs.

We welcome plans in the draft Mental Health Bill to stop using the MHA to detain people with a learning disability or autistic people in hospital where this is the sole reason for detention. Having a learning disability or autism can never justify this type of hospital care. However, we remain concerned that a lack of early intervention services in the community to avoid crisis and hospital admission, alongside a lack of community-based, bespoke placements is leading to people being detained in hospital. This, together with a lack of appropriate resources will lead to people continuing to be institutionalised through some means or other.

As an organisation, we are committed to improving the quality of care in community-based supported living services across the country. As outlined in our strategy, a key part of this will be listening to the experiences of people who use services. We believe that they, their unpaid carers, families, friends and advocates are the best sources of evidence about their lived experiences of care and how good it is from their perspective.

While we are aware of the pressure on commissioners to provide for people moving on from hospital care, our role is to ensure that any new service meets our Right support, right care, right culture guidance and will provide the best possible care for autistic people or people with a learning disability. We currently refuse a substantial proportion of applications to register services with us due to inappropriate models of care or the applicant’s poor understanding of how care should be delivered. Over the last year we have also taken more enforcement action against adult social care providers of services for people with a learning disability and autistic people.

We are aware that people with a learning disability and autistic people may have mental health needs, unrelated to their disability or neurodiversity, that may need admission to a mental health hospital. As a result, services need to ensure that they are able to meet the needs of people with a learning disability and autistic people. In particular, they need to make sure that staff have the skills and training required to care for these people.

Lack of appropriate staff training and support in caring for autistic people is likely to seriously limit the quality of people’s care. It can also contribute to longer hospital stays and to patients staying in secure services for prolonged periods.

From 1 July 2022, a new legal requirement introduced by the Health and Care Act 2022 requires all CQC registered providers to ensure their staff receive learning disability and autism training at a level appropriate to their role. This applies to all settings, including mental health hospitals, and providers need to consider the training needs of staff who deliver care directly as well as administrative staff, for example reception staff and call-handlers.

To support this new legislative requirement, the government is rolling out the Oliver McGowan training package. Co-designed by autistic people, people with a learning disability, family, carers and subject matter experts, this training is intended to ensure that health and social care staff have the skills and knowledge to provide safe, compassionate, and informed care.

Deprivation of Liberty Safeguards

The Deprivation of Liberty Safeguards (DoLS) are an important part of the Mental Capacity Act (MCA) 2005 legislation. The DoLS can be used in care homes and hospitals of all types, and they are a vital safeguard to ensure that where someone who lacks capacity to consent is deprived of their liberty, this deprivation of liberty only occurs if necessary, proportionate and in their best interests.

As highlighted in our 2021/22 State of Care report, we are concerned that ongoing problems with the DoLS process mean that some people are at risk of being unlawfully deprived of their liberty, with no safeguards, rights or protection in place.

Lack of training for staff in mental health hospitals is an ongoing area of concern. Without appropriate training, staff struggle to understand people’s legal rights under the MHA, MCA and DoLS. In some cases, this means that a DoLS application has not always been considered when at times it should have been. We have also found that there is a misconception that if people were happy to be on a ward, then they could be classed as informal patients, without considering whether they had capacity to consent. As a result, we are concerned that people could be confined in hospital without the appropriate legal framework to protect them or their human rights.

In some cases, we have found confusion among nursing staff over the legal status of patients who may be subject to DoLS on the basis of an application that is awaiting action from the local authority. We have also seen examples where the capacity and consent of patients is unclear.

We are aware that on some older people’s wards, patients are admitted under section 2 of the MHA and when this expires, a DoLS authorisation is applied for to enable a continued stay on the ward if further hospital care is required. In very many cases, this is now effectively arranging for unauthorised detention to start immediately or, at best, in the 14 days after a renewed urgent DoLS authorisation expires and a longer-term authorisation has not yet been granted.

As reported last year, the DoLS process is due to be replaced by the Liberty Protection Safeguards (LPS). At the time of writing the government is considering responses to its consultation on the MCA and LPS code of practice and relevant regulations, held between March and July 2022.