Mental Health Units Act – Heritage Anti Ligature Services

The commencement of the Mental Health Units (Use of Force) Act 2018 and publication of this statutory guidance represents a significant moment towards improving the care and treatment of the most vulnerable patients in our care. We have heard from people with personal experience of mental health services about how the use of force can be a frightening, traumatising and humiliating experience that can have a lasting impact long after the incident.

Every patient has the right to be treated with dignity and respect in a caring and therapeutic environment where their rights are upheld, their needs are met, and they feel supported and listened to. The use of force must always be used proportionately, in accordance with the law, and only ever as a last resort. It must never be used with the intention of causing pain, suffering or humiliation to a patient.

We must remember why the Mental Health Units (Use of Force) Act 2018 is needed. The use of force can have serious and sometimes fatal consequences, as was the case of Olaseni (Seni) Lewis, a young Black man who lost his life following the disproportionate and inappropriate use of force in a mental health unit. After the tragic loss of their son, Aji and Conrad Lewis and the wider Lewis family campaigned tirelessly for change to ensure no other family need suffer in the way they did. The act is a testament to the hard work of the Lewis family and other families who have lost loved ones following the use of force in mental health services.

We must also acknowledge that the use of force is often disproportionately used on people who share certain protected characteristics under the Equality Act 2010, such as people from Black and minority ethnic backgrounds, and women and girls. Through the introduction of the act, we must see an end to this – this is an opportunity to make changes to promote positive ward cultures that support recovery, engender trust between patients and staff, and protect the safety and wellbeing of all our patients and people using our mental health services.

For too long, the use of force has been accepted as the norm in many mental health services. This must change. While there has been guidance in recent years that has aimed to reduce the reliance on the use of force, there are still too often reports of its misuse and abuse, reminding us there is still work to do.

Data from the NHS Digital Mental Health Bulletin shows that the use of force is at an all-time high. While there are many reasons for this rise, such as improved recording and reporting, and more patients using services, there is still an over-reliance on the use of force. While the reasons behind this may be complex, this data also shines a light on the often disproportionate use against some groups who share a protected characteristic under the Equality Act 2010, such as:

people from Black and minority ethnic background
women and girls
people with autism or a learning disability

While there is good practice in many of our mental health units, there is still a greater focus on managing behaviour, rather than working to prevent situations from escalating to the point at which the use of force is seen to be the only solution. Poor staff communication with patients due to language or cultural barriers and not understanding the reasons for a patient’s behaviour also create an environment where escalation and force is more likely.

The Mental Health Units (Use of Force) Act 2018 introduces the following definitions of use of force.

Use of force includes physical, mechanical or chemical restraint of a patient, or the isolation of a patient (which includes seclusion and segregation).

The act defines the different types of force as:

physical restraint: the use of physical contact that is intended to prevent, restrict or subdue movement of any part of the patient’s body. This would include holding a patient to give them a depot injection
mechanical restraint: the use of a device that is intended to prevent, restrict or subdue movement of any part of the patient’s body, and is for the primary purpose of behavioural control
chemical restraint: the use of medication that is intended to prevent, restrict or subdue movement of any part of the patient’s body. This includes the use of rapid tranquillisation (see National Institute for Health and Care Excellence (NICE) guideline [NG10] Violence and aggression: short-term management in mental health, health and community settings)

The act states that isolation is any seclusion or segregation that is imposed on a patient. However, it does not define these terms. The definitions of these are defined in Annex A of the Mental Health Act 1983: code of practice, which applies to any patient in a mental health unit detained under that act, as:

seclusion: the supervised confinement and isolation of a patient, away from other patients, in an area from which the patient is prevented from leaving, where it is of immediate necessity for the purpose of the containment of severe behavioural disturbance that is likely to cause harm to others. This can include seclusion where the door to a room is open, but the patient is still prevented from leaving, for example, by a staff member either in or next to the doorway
(long-term) segregation: a situation where, in order to reduce a sustained risk of harm posed by the patient to others, which is a constant feature of their presentation, a multidisciplinary review and representative from the responsible commissioning authority determines that a patient should not be allowed to mix freely with other patients on the ward on a long-term basis

It is important to acknowledge that there are circumstances where it may be difficult to avoid the use of force to ensure the safe care and treatment of the patient, and the safety of other patients and staff. For example, nasogastric feeding for patients with eating disorders, or a need to restrain a patient who is resisting or refusing help with personal care and support. Even within these situations, it is still essential that the relevant legal principles are applied and that the use of force is proportionate.

‘Chapter 26: Safe and therapeutic responses to disturbed behaviour’ of the Mental Health Act 1983: code of practice provides further statutory guidance in relation to the use of force, which staff are under a statutory duty to have regard to in relation to patients in mental health units detained under the Mental Health Act 1983.

In particular, paragraphs 26.36 and 26.37 provide further guidance on the meaning of any use of force that amounts to restrictive interventions, as:

“…deliberate acts on the part of other person(s) that restrict a patient’s movement, liberty and/or freedom to act independently in order to:

take immediate control of a dangerous situation where there is a real possibility of harm to the person or others if no action is undertaken, and
end or reduce significantly the danger to the patient or others

Restrictive interventions should not be used to punish or for the sole intention of inflicting pain, suffering or humiliation.

All uses of force must be rights-respecting, lawful and compliant with the Human Rights Act 1998. Human rights are the fundamental freedoms and protections that everyone is entitled to. They cannot be taken away, but some rights can be restricted in specific circumstances for a legitimate reason, as long as that restriction is proportionate. Some rights, including freedom from torture, inhuman and degrading treatment are absolute and can never be restricted.

The Human Rights Act 1998 incorporates into domestic law the rights enshrined in the European Convention on Human Rights (ECHR). Articles 2 (right to life), 3 (freedom from torture, inhuman and degrading treatment), 8 (respect for private and family life) and 14 (protection from discrimination) of the ECHR are those that relate to the use of force in mental health settings. It means all public authorities and organisations carrying out public functions (including the provision of mental health units) are legally obliged to respect patient’s rights, and take reasonable steps to protect those rights.

Alongside the Human Rights Act 1998, the UK government has signed and ratified other United Nations (UN) human rights treaties relevant to the use of force. Organisations should ensure that all staff are aware of and understand their duties under this statutory guidance, which reflects their obligations under the Human Rights Act 1998, and other relevant UN human rights treaties. These include:

The following documents provide further detailed guidance on human rights:

Chapter 26: Safe and therapeutic responses to disturbed behaviour, Mental Health Act 1983: code of practice
Human rights framework for restraint – Equality and Human Rights Commission
Human rights framework for people in detention – Equality and Human Rights Commission
Mental Health, Mental Capacity and Human Rights: A practitioner’s guide – the British Institute of Human Rights

It is important that staff and senior managers ensure that the legislative framework is applied in a way that is compatible with ECHR rights and freedoms. The Human Rights Act 1998 is the foundation upon which other laws and duties are implemented.

There are legal frameworks, including those under the Mental Health Act 1983 and the Mental Capacity Act 2005, that are designed to ensure that any use of force is applied only after a proper process has been followed. Such legal frameworks require any force used to be necessary and proportionate, and the least restrictive option.

The principle of least restriction would involve the least restrictive method, using the least amount of force (proportionate to the risk posed) and for the minimum amount of time.

The following is a list (not exhaustive) of legislation relevant to the use of force:

This statutory guidance issued by the Secretary of State for Health and Social Care under section 11 of the act provides guidance to a ‘responsible person’ (see section 2 below) and ‘relevant health organisations’ (mental health units) about how they exercise their functions under the act.

Both the ‘responsible person’ and staff working in mental health units ‘must have regard’ to this guidance. It is important that the responsible person ensures that they and other staff are familiar with its requirements because departures from the guidance could give rise to legal challenge.

There should be clear and cogent documented reasons for departing from the guidance as courts will scrutinise such reasons to ensure that there is a sufficiently convincing justification in the circumstances. Organisations or trusts should have a process in place to ensure that the reasons for any departures from the guidance are clearly documented.

This guidance is not intended to override other guidance that already applies to mental health units but sits alongside it. For example, the Mental Health Act 1983: code of practice in relation to restrictive interventions will still apply to patients in mental health units who are detained under the Mental Health Act 1983. Where relevant, this guidance will refer directly to other legislation, guidance and information.

This guidance will be kept under review and updated as necessary. Any substantial changes to the guidance will be consulted on with appropriate persons before being published in accordance with section 11(6) of the act.

This section explains some of the important terms used in the act.

‘Mental disorder’

‘Mental disorder’ has the same meaning as in the Mental Health Act 1983, which is:

any disorder or disability of the mind

This includes people with a learning disability, although a learning disability is not always considered to be a mental disorder for the purpose of the Mental Health Act 1983 and, as set out in that act, in some situations is only included where the disability is associated with abnormally aggressive or seriously irresponsible conduct.

‘Learning disability’

‘Learning disability’ also has the same meaning as in the Mental Health Act 1983, which means:

a state of arrested or incomplete development of the mind which includes significant impairment of intelligence and social functioning

‘Chapter 2: Mental Disorder Definition’ of the Mental Health Act 1983: code of practice details the list of clinically recognised conditions that could fall within the definition of a ‘mental disorder’ for both the Mental Health Act 1983 and this act.

‘Mental health unit’

‘Mental health unit ‘is described as a health service hospital or independent hospital in England (or part thereof) that provides treatment to inpatients for a mental disorder. An independent hospital (or part thereof) will only be a ‘mental health unit’ if its purpose is

to provide treatment to inpatients for mental disorder

and

at least some of that treatment is provided, or is intended to be provided, for the purposes of the NHS

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

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

The following services are considered to be outside of the definition of a mental health unit (this is not an exhaustive list) and therefore not covered by the requirements of the act:

accident and emergency departments of emergency departments
section 135 and 136 suites that are outside of a mental health unit
outpatient departments or clinics
mental health transport vehicles

Please refer to the ‘What is the use of force, why and when it can be used’ section of this guidance (above) for the definitions of the use of force introduced by this act.

The responsible person (or delegated members of staff) must ensure the information about the use of force is provided to each patient, and to any person whom the responsible person (or delegated members of staff) considers it appropriate to provide the information to in connection with the patient, such as a family member or carer. However, the duty to provide patients and others with the information does not apply if the patient or other person refuses the information.

There may be legitimate reasons for patients refusing information, such as they find it causes further distress, or they feel they do not require it. If the patient initially refuses the information, the responsible person (or delegated members of staff) should make further attempts at reasonable intervals to provide them with the information in an appropriate format.

The responsible person should guard against patients being routinely said to refuse information about their rights. They should actively monitor take-up of information, and ensure strategies are in place to encourage positive dissemination of the information. The responsible person should also record whether the information was accepted or refused by the patient.

The information must be provided to the patient as soon as reasonably practicable after they are admitted to the mental health unit. The responsible person (or delegated members of staff) within the unit will need to use their professional judgement about when it is an appropriate time to provide the information to patients. Individual approaches may be required and will be dependent on each patient. Staff will need to be sensitive to the timing of approaches to inform some patients (for example, children and young people or survivors of abuse) about their rights in relation to the use of force, so as not to cause alarm or distress.

It can be traumatic for other persons within the unit to witness force being used on others. It is recommended that other persons who may witness force being used be offered the information about use of force to avoid any distress and confusion this may cause them. It would be good practice to offer the other person who may have witnessed the use of force the opportunity to debrief with a member of staff not involved in that use of force. This should be seen as a further opportunity to learn and take action if required.

The responsible person (or delegated members of staff) must take whatever steps are reasonably practicable to make sure the patient is aware of the information about use of force and understands it, while having regard to the interests of the patient who has the right not to discuss the information if they do not want to.

This means that staff must explain the information set out in an accessible and easily understandable way. Staff may need to talk to patients more than once about the information, using tailored approaches that are appropriate to the patient to ensure they are aware of and understand the information they are being provided with.

Staff education and training are central to promoting and supporting calm, safe and respectful environments where the use of force is kept to a minimum. It is essential that staff are properly trained to provide safe, trauma-informed, person-centred care, where children and young people, adults, women and girls and older adults are treated with dignity and respect, and their views and feelings are understood and their specific needs are met.

A former child patient said:

My key nurse was fantastic. She had a very calming approach. We used to be able to have a laugh. That allowed me to open up a lot more with her. When it was a bad day, I could communicate with her. She actually cared about me getting better.

The training provided should support an overall human rights-based approach that is focused on the minimisation of the use of force and ensures any use of force is rights-respecting. Human rights apply to all patients receiving care and treatment, and all training must be informed by the legal duties of staff to respect and protect those human rights. The emphasis of any training programme should be on creating a positive environment for care, which promotes the patient’s best interests and reduces the reliance on the use of force. Through understanding the impact of trauma and the reasons for a patient’s behaviour, it is possible to pre-empt, take active steps to avoid, or de-escalate distress or conflict.

Organisation or trust boards should ensure that training and workforce development reflects the therapeutic nature and purpose of health and care settings, and ensure that it has been appropriately developed for use in health and social care rather than for other purposes.

People with personal experience told us:

We would like to see more pre-escalation. There is de-escalation obviously, which is what people should be focusing on. But then there’s pre-escalation, which is obviously the prevention of anything escalating in the first place.

On the rare occasions where the use of force is needed, patients, their families and carers must feel confident that staff have been properly trained in the safe use of the techniques they are using.

It is also important that training is done in a manner that is respectful of staff’s legitimate concerns to be able to protect the safety of the patient and others against potential violence from another patient. The training should aim to provide staff with the confidence to know when they can and should use appropriate and proportionate force, as well as being able to recognise what is inappropriate or excessive force.

There should be clear plans in place to ensure that knowledge gained during staff training is transferred to the workplace and applied in practice, and that staff should only use techniques they have been appropriately trained to use.

An NHS member of staff told us:

The training can be exemplary but if this is not employed within the clinical setting then it was worthless. Staff need to be monitored to ensure they are delivering the training as taught and don’t start taking short cuts, making things up or just resorting to the use of force as the quickest and easiest option.

As with the policy on use of force and information about use of force, it is important to ensure the experiences of people with personal experience inform the development of training materials and delivery of the training through meaningful co-production. This could involve presentations from people with personal experience talking to staff about how the use of force impacts patients.

Good co-production should involve:

respectful communication
listening to everyone’s perspective
getting to know patients
breaking down barriers between patients and staff

Training programmes should also be relevant to the patient population using the services and cover the different approaches that will be needed for children and young people, women and girls, people with autism or a learning disability, or patients from Black and minority ethnic backgrounds.

The responsible person must provide training for staff about the use of force by staff who work in the mental health unit. The definition of ‘staff’ is included within section 13 of the act. For the purposes of complying with the act, ‘staff’ means any person (whether as an employee or contractor) who works for an organisation or trust that operates a mental health unit who either:

may be authorised to use force on a patient
may authorise the use of force on a patient
has general authority for the use of force

This means that all staff (including temporary, bank or agency staff) involved in using force on a patient or involved in the authorisation of the use of force must undertake training that is appropriate to the role they are undertaking.

For example, executive board members (or equivalent) who authorise the use of force in their organisation or trust should undertake appropriate training to ensure they are fully aware of the approaches and techniques (prevention or otherwise) their staff are being trained in. It should also include training on why force is used, and the impact and risks the use of force has on patients. They would not be expected to complete the full training programme given to staff who are directly involved in patient care.

Section 5 sets out, as a minimum, the list of training topics that must be covered. The list in the act is not exhaustive. For each of the topic areas that must be included in staff training, the following sections set out examples of what should be covered in each of those topic areas.