Wednesday, 24 July 2013

To The Barricades?

In the last few posts I've used information from a CQC publication to show a few, widely acknowledged problems with the mental health system in England. The first showed that over 12,000 people are being denied their legal rights. The second showed that poor commissioning has led to people being denied their rights, and gave some suggestions for changing this. The most recent post pointed to wider problems of illegal detention and treatment of people in psychiatric hospitals, of an attempt by some staff to outsource their legal responsibilities for providing people information.

This collection of statements should shock us. The fact that most people who have had dealings with the mental health system will not be shocked by them troubles me deeply.There seems to be a widespread resignation  that things are like that, that change is unlikely, that we should settle for small victories. I no longer want to settle.

I've had a lot of discussions with people as a result of those blogs. Most agree that the situations is appalling. However, when asked how things should be changed the answers dry up somewhat.

Take the example of underfunding of IMHA services. IMHA is accepted as having a key role in supporting people to have more control over their care in very distressing situations.  Yet despite proof that IMHA is generally underfunded, that this has been known since at least 2009, that people have a legal right of access to this service and that this is being denied to thousands, nothing happens. People point out that if we were to fund the IMHA service properly it would lead to reductions in funding for other kinds of advocacy, that maybe we shouldn't be rocking the boat. I don't believe we should be picking and choosing which legal rights we are willing to fight for.

Given the importance that CQC rightly places on people having a voice in their own care, and the fact that CQC reports have repeatedly observed a systematic breaching of people's rights to an IMHA, I might naively expect them to take some action. I have been told that the noting of these breaches leads to a pressure, a knowledge that services should improve their practice, the weight of expectations. Unfortunately, I still believe the title of this blog is relevant - that the distance from "should" to "is" is immense. If CQC does not have some means of implementing the service improvement aspect of its role, of compelling  change in a system which it has identified is malfunctioning, it creates a vacuum that leads either to anger or despair.

So what happens next? How are professionals, services and commissioners meant to be held to account? Unless there is some concerted action by CQC in this regard, it appears that the responsibility lies ultimately on people who are being mistreated and denied their rights. I have heard many people say that things won't change until someone takes a professional or authority to court . Not so much "to the barricades!" as "To the barristers!"

I feel that this is highly unfair. It should not be up to the people who use a hospital to make the system work. Nevertheless, as things currently stand we are placing responsibility for maintaining dignity and rights upon the very people who are having these things denied them.

Personally I do not want to see the money that is so badly needed to support good care being diverted into legal battles, costs and damages. I don't want people to have to fight for good care. I don't want to see hard worked doctors or nurses sued for treating someone without obtaining their consent as a result of inappropriate threats of detention. These do not seem like good uses of energy, but in the absence of other moves towards addressing the situation they seem increasingly likely.

Of course, one barrier to legal challenges being raised is that often people aren't aware of their rights or of their ways of accessing justice. That doesn't have to be the case. There are ways in which people could be supported to raise legal challenges more easily; ways that a link could be forged between individuals, service user groups and the legal profession.

I'm reminded of the yellow card scheme for reporting undocumented side effects of medication. Any time someone talked about a doctor disbelieving them when they described unwanted side effects of the medication they were taking, you could pull out a card on which to record this and send it to a central point for collation. The view of one person might be discounted. The accumulated experience of hundreds or thousands are harder to ignore.

Think of how many service user groups there are out there. Think how many advocacy providers. Think how many local services or support systems for people facing mental health issues. These are all points of potential access, information and support.  Imagine how easy it would be connect these experiences now in this age of social media. Imagine how many legal challenges could arise - my quick calculation in my first blog puts the potential number above ten thousand. That's starting to sound quite expensive to me.

So should we spend public money ensuring people have dignified, appropriate and legal treatment that supports people towards recovery or should spend it instead fighting legal battles to defend a system that isn't working properly? I believe that positive change is the better route but I'm willing explore alternatives.

I'm in the process of developing an organisation called True Voice. I'm going to use it for various things, one of which is to do some campaigning.  If you're interested in continuing this conversation, either comment below or email me 

Wednesday, 10 July 2013

Bang to Rights

There’s a recurring trope in police and procedural dramas. After the chase, the bending of the rules, the adrenalin charge and the (inevitably) emotional arrest, someone starts to intone, “You have the right to remain silent….”. It’s not only about a grounding in the real world. It’s a signifier. The crisis is over, normal service has been resumed, justice has retaken its natural guise. Even in these hyper-charged dramas, you’ve got to tell people their rights, right? Right.

Now, imagine that you’re in a psychiatric hospital. You’re scared, but you’re not a criminal. You’re ill or at least perceived as being ill. If you’ve been detained against your will you are now experiencing the effects of  the Mental Health Act (MHA) one of the most powerful pieces of legislation on the statute books – and you’re on the wrong end of it. Unless you’re somehow working in the mental health area you probably won’t know what the powers mean. But now that the drama’s over you’ll be told your rights, right? Well, sometimes.

Giving people information about their rights is one of the obligations of those using the Mental Health Act. For that reason, it’s one of the areas examined in the CQC report, Monitoring The Mental Health Act. The data in the last report suggests that people are often not told their rights, showing that  10% of people appear not to have been given information about their rights under the Mental Health Act at the start of their detention. It stated that,

“MHA Commissioners reported a lack of evidence of staff discussions with patients about their rights on 458 visits overall. In some cases discussions had taken place but they were not recorded; in others patients were unaware of or unclear about their rights. In a number of cases the relevant forms (section 132) were missing or incomplete.”

Unsurprisingly, the area where the least information was given was on people’s right to access an Independent Mental Health Advocate (IMHA). One of the roles of the IMHA is to help people understand and realise their rights. There was no evidence of telling people of this right in 21% of records. There was often no effort to contact an IMHA service for the person if that person was unable to do so themselves. But I want to come back to rights in a wider sense, so I’m going to do something unusual. I’m not going to bang on about advocacy. I’m going to talk about outsourcing instead.

The hospital has the legal duty to tell people their rights. Usually this is delegated through ward staff, but the duty remains. That’s why I was alarmed to read the following section of the MHA report:

“The Code suggests that it will usually be appropriate for professionals working with the patient to provide the information about rights required by statute. In some instances, CQC is concerned to see this role delegated to IMHAs. Although IMHAs also have a statutory role to give patients information about their legal status, their rights and how to exercise them, this duty is described in the Code of Practice as an “additional safeguard”. It does not relieve nursing staff or other professionals who work under the direction of the hospital management of their duties under section 132.”
Well, quite.

Mental health staff can not outsource the provision of information about their own curtailment of people’s rights. That would be an abrogation of responsibility. It could be seen as part of a package where involvement, treating people with respect and dignity, supporting people to make their voice heard and ensuring person centred care is somehow seen as someone else’s job. Obviously this would never happen, it’s just hyperbole. Probably some glitch in the system led to a belief that discussing rights was the IMHA’s job, right? Erm,…

I’d be more inclined to believe that were it not for a long standing problem in mental health, one which prompts me to remind you what a psychiatric ward is. It’s part of a hospital – you know, the kind of place you go to for care and treatment. The combination of media portrayals of mental illness and the weight of the MHA can sometimes obscure this fact, but it’s important. So, not everyone on a psychiatric ward is detained under section. That means they can leave any time they want, right? Well, yes, but, only in theory.

In reality many people who are voluntary patients hit a barrier when they try to leave. They’re told that they will be sectioned if they go out of the door. So, you’re free to leave unless you try to. This piece of logic is so deliberately perverse it deserves the name Catch 23. And it is not legal. Yet anyone who has worked in mental health knows that this happens with depressing regularity. The powers which are regularly used by staff on psychiatric wards, to detain and to treat without consent, do not inherently arise out of a professional status. Nor is the loss of rights an inherent consequence of mental health problems. Both come from the MHA, a piece of legislation of that is meant to protect the rights of people. Using the Mental HEalth Act as a threat suggests a system too used to the concept of coercion, of enforced compliance. A system that has forgotten where its powers end.

The Mental Health Act Code of Practice could not state the law more clearly.

“4.12 The threat of detention must not be used to induce a patient to consent to admission to hospital or to treatment (and is likely to invalidate any apparent consent).”
I agree with the twitter commentator Ermintrude (Registered Social Worker, ex-AMHP and ex-Best Interests Assessor) this piece of information should be on an poster in every mental health ward in the country.

Because the thing about rights, the important thing, is that you can’t use them if you don’t know you’ve got them. And if your only means of finding out about your rights is through the very people most likely to infringe them, I’m not convinced that will work. It would be like asking someone to open a box with the crowbar contained inside it. Or like delegating the provision of information to an IMHA service you’ve not told the person about. Frankly, it would be madness.

So back to illegally coerced treatment.  How many care professionals have forgotten the meaning of informed consent, and the legal liabilities that attach to treating people without this consent? What legal options would you take if someone gave you powerful medication that can have serious side effects without your consent? I doubt I’d want to put it down to experience or accept it as the natural way that a system works. Yet every person who has been subject to the coercive threat of detention has experienced just that thing. It’s a wrong that is well known, and it needs to change.

I believe that it is vital that people know what their own rights are in care and treatment so that they can make use of them; so they can hold remind care professionals of their duties and protect their own rights.

So this is where I ask for your help. What are the common wrongs that you know about? What information should everyone have available? Either leave a comment below or email and I’ll see what I can put together.

Next time, a question of accountability.

Tuesday, 2 July 2013

A legal wrong

In my last post I showed that at least 12,000 people are being denied there legal right to access independent mental health advocacy. The CQC report  -Monitoring the Mental Health Act also states that 1 in 8 people who contact the IMHA service don't get to see an advocate. Given that IMHAs have a duty to respond to referrals, yet the report says that 1 in 8 people who request an IMHA do not get to see one. How can that happen? Are advocacy services wilfully ignoring their legal duties?

My experience suggests not. It has been known since 2009 that advocacy services have been  underfunded in regards to IMHA provision. This was recognised in the CQC report for 2010/11. Since then, despite increasing use of compulsory powers of the Mental Health Act, the funding of IMHA seems to have (at best) stayed constant. If demand increases and supply stays constant a shortfall is inevitable. There is  a problem with commissioning.

If the role of advocacy is to be developed in any way as a result of the abuse at Winterborne View, it would be in ensuring regular access to in-patient settings that do not depend on a referral. However, the CQC report shows that  roughly one quarter of settings have  no regular access to IMHA. That means the lessons of Winterborne are a long way from being acted upon.

A regular IMHA presence within in-patient settings is necessary if people's rights are going to be real rather than theoretical. This regular presence reduces the ability for staff to block access to advocacy services, allows advocates to see the regular ward environment and gives advocates the ability to perform a minor, proactive safeguarding role; spotting and challenging poor practice affecting people they are not directly advocating for. These actions would not be sufficient to guarantee the safety of patients and residents in care settings, but that responsibility lies ultimately with care staff. Advocacy's small role here is to act as a warning, a reporting mechanism, a means of identifying problems before they become disasters.

However, many advocacy services do not even have the resources to respond to the specifically requested need they face, never mind providing more proactive services to reach those who might not be able to ask for advocacy themself. As a result many people who are eligible for an IMHA never find out about it, and many who ask for support do not receive it. Some IMHA services even find themselves having to make tough prioritisation decisions about referrals that they receive; referrals to which they have a legal duty to respond. Sometimes, by the time they can respond to someone, that person is no longer there. This is no small thing. It is the denial of a legal right, and it has major consequences at a personal, financial and legal level.

At a personal level, I suggest that being deprived of support you were promised at a time of extreme distress is far from ideal. It adds to distress and suggests that you are not a high priority; your rights are secondary. From a financial perspective, plans that people actively collaborate in are more likely to be effective and create long term well being. That's a lot cheaper than poor planning and multiple re-admissions. Oh, and the person themself will have a better experience and be more likely to be treated with respect. Thirdly, legal duties are meant to be enacted. They are made to be real and tangible, they are not meant to be put into statute for political expediency or as some kind of window dressing. Local authority commissioners now have the responsibility to for facilitating this.

So what about the commissioners? Now that responsibility for commissioning IMHA has moved over to local authorities are we likely to see the legal obligation to resource advocacy provision better met? The CQC report seems to project a positive picture. It cites the important report The Right To Be Heard by Karen Newbigging and colleagues at the University of Central Lancashire. This called (amongst other things) for IMHA to become an opt out rather than an opt in service. The CQC report states,

"Commissioning of IMHA services moves to local authorities in April 2013, although responsibility for promoting access will remain with providers. Local authorities will be taking on this commissioning role at a time of financial austerity, and CQC hopes that the recommendation of the research is heeded"
I find it surprising to see a regulatory body publicly deferring to hope over experience or expectation.

The need for some level of regular outreach presence does not seem to have been recognised sufficiently by commissioners, never mind presumed access. Advocacy services have reported funding levels that are reducing despite an increase in demand and eligible populations. Advocacy is simply not seen as a high enough priority and the right to advocacy is seen as fudgeable because those who lose out are unlikely to take the matter to law.

The commissioning of advocacy has been widely variable across local authority areas.Too often, contract size is determined before need is established. The person holding the advocacy commissioning portfolio seems to change with depressing regularity.

Does CQC's apparent reluctance to get involved in this aspect  this may be explained by the inherent difficulty of finding the person or persons responsible for commissioning advocacy. Without a direct line to influencing, might CQC find it difficult to exert influence in this regard?

It has been suggested by some that IMHA commissioning will only become a priority when a local authority is sued by someone who was denied access to a right set out in law. That seems to place the responsibility on precisely the wrong person. Who should challenge poor commissioning practice, an individual aiming to recover from a traumatic incident or a regulatory/monitoring body. CQC is aware of large scale, systematic failure to comply with legislation. It has publicly stated this in its two most recent reports on the Mental Health Act. Is there not some obligation to act on this? Surely  monitoring is not enough when improvement is so clearly needed.

So, not wanting to offer problems without some possible ways of addressing them, here are a few ideas that might help CQC to address this problem:

  1. Ensure that the line of CQC's enquiries about IMHA service commissioning goes via the Director of Adult Social Services. Local authorities can change their commissioning team as they see fit. The Director of Adult Social Services should know who is responsible for meeting this legal obligation.
  2. Ask to see how the funding allocation for IMHA has been related to the number of uses of compulsory powers of the MHA in that local authority. If the LA can't produce evidence of this it suggests that commissioning has not been taken seriously.
  3. Make the commissioning of advocacy, and particularly statutory advocacy, a core standard against which local authorities are judged in CQC inspections. CQC's framework already states that increasing and supporting service user voice and facilitating greater involvement in care planning are fundamental aspects of good care. IMHA is a particularly neatly defined method by which this can be measured. If the LA is not meeting its requirements where there is a legal obligation to do so, is it really likely to do so where it is merely good practice?
Until the commissioning of advocacy is better scrutinised and related to actual need, the legal right to advocacy will continue to go wrong.

Next time; why are mental health professionals not telling people their rights, some posters that should be put up in all psychiatric settings and a particularly worrying trend in outsourcing.