Alex RKThe Council of Europe’s Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (‘CPT, which nb, as needs saying nowadays, has nothing to do with the European Union) published its report on its 2021 visit to the United Kingdom[1] on 7 July 2022. As is conventional, it also published the UK Government’s response to its report. Much of the report is directed towards conditions in prisons, the CPT:
again highlight[ing] the cumulative deleterious effects on the lives of prisoners of chronic overcrowding, poor living conditions and the lack of purposeful regimes. Since 2016, these long-standing problems have been exacerbated by a significant escalation in levels of violence. The Covid-19 pandemic may have resulted in a temporary reduction in overcrowding and in violence levels coming down, but the report notes that the underlying structural causes of overcrowding and violence in prison have not been addressed.
For present purposes, however, I want to focus on those sections of its report (and the response) relevant to the process of reform of the Mental Health Act 1983. I therefore extract the key material parts of the CPT’s report and the UK Government’s response (removing footnotes):
Consent to treatment
CPT report and recommendation
185. In the report on the 2016 visit, the CPT recommended that consent to treatment safeguards needed to be reinforced during the first three months of detention and that the relevant legislation should be amended so as to require an immediate external psychiatric opinion where a patient does not agree with the treatment proposed by the establishment’s doctors. In their response, the United Kingdom authorities stated their keenness to continue to make improvements where possible and that they would take the CPT’s comments into account. The White Paper on the reform of the MHA does indeed propose a change in the law, namely, that the current period of three months be reduced to fourteen days in the case of a capable patient objecting to the treatment and two months for those without capacity to decide. While representing a step in the right direction, the CPT considers that the proposed revised time frames are still too long to undergo forced treatment without a second opinion.
The CPT recommends that the relevant legislation should be amended so as to require an immediate external psychiatric opinion in any case where any patient actively or passively objects to the treatment proposed by the establishment’s doctors; further, patients should be able to appeal against a compulsory treatment decision to an independent authority, such as the Mental Health Tribunal, and the patient should be informed both orally and in writing of this right.
Government response
The proposed reforms to the Act introduce new safeguards that give the patient greater control over their care and treatment and ensure that they receive independent scrutiny of their treatment at a much earlier point in their detention. For patients who are not consenting to treatment, clinicians will be subject to more stringent rules around when they can override the patient’s refusal. This is to ensure that clinically 59 appropriate alternatives, which might be more in line with the patient’s wishes and preferences receive proper consideration. If it is decided that compulsory treatment is necessary, then an external psychiatric opinion provided by a SOAD must be requested by the clinician at this point, rather than after the treatment has been given for a period of three months. Patients are currently able to appeal treatment decisions by way of Judicial Review. The Independent Review of the Act recommended that patients should have a new right of appeal to a single judge of the First Tier Tribunal (Mental Health) (MHT). We consulted on this proposal in the White Paper Reforming the Mental Health Act 1983, and a number of significant concerns were raised with this policy, which we are currently exploring in greater detail to establish if they can be overcome.
Naso-gastric feeding
CPT report and recommendation
186. The CPT has always considered the issue of force feeding to be a very sensitive issue that raises many fundamental questions, in particular of a legal, medical, deontological and ethical nature. At Cygnet Hospital Sheffield and St Andrew’s Healthcare Northampton “treatment” in the form of food was being administered to patients with eating disorders by naso-gastric tube (NGT) under section 63 of the MHA. Treatment administered under this section does not need a SOAD opinion and there is no review of the treatment. The CPT does not contest the necessity for such invasive treatment after all other options have been explored but it nevertheless considers that there ought to be an independent regular review of such treatment. Furthermore, the delegation received several allegations of patients who were subjected to naso-gastric feeding in the presence of other patients.
The CPT recommends that all invasive procedures such as forced feeding via NGT should be subject to regular independent review and should be performed out of sight of other patients to preserve the dignity and safety of the patient concerned. All naso-gastric feeding within Cygnet CAMHS services should be done in a separated area away from the sight of other patients.
Government response
At Cygnet Hospitals Bury and Sheffield, a dedicated area has been established for such packages of care. A similar area has also been identified at Cygnet’s Joyce Parker Hospital, in readiness for when they launch their NG feeding programme later in 2022. There is a CAMHS clinical working group that works across all Cygnet CAMHS services. This group has a live action plan regarding the further development of NG feeding programmes within CAMHS. Part of this action plan is ensuring independent reviews.
Recording of consent
CPT report and recommendation
189. In its report on the 2016 periodic visit to the United Kingdom, the CPT was also concerned that not all patients had provided their consent to treatment in writing on a specific form (“T2” form under section 58a MHA). During the 2021 visit, the CPT’s delegation found that the T2 forms did not contain the patient’s signature consenting to treatment as the forms had been digitalised and it was no longer possible for the patients’ signatures to appear. In addition, a written form showing a patient’s consent to treatment would not be included in the future statutory care plan as it was reasoned that a patient might change their mind and it would be more difficult to go back on the initial decision if it were in writing. However, even though T2 forms do not expire, they should be regularly reviewed and become invalid if the patient loses capacity or if they withdraw their consent, upon which a T3 form130 should be drawn up. There is therefore provision in law for such a situation and the signature is not set in stone. The CPT recommends that the United Kingdom authorities take steps to enable patients to sign T2 forms, even electronically. Further, it recommends that such a form be included in the care and treatment plan that will be placed on a statutory footing.
Government response
The T2 form is already a statutory document (see The Mental Health (Hospital, Guardianship and Treatment) (England) (Amendment) Regulations 2008). Therefore, we do not think that there is a benefit to including in the new statutory Care and Treatment Plan. We note the CPT’s recommendations with regards to enabling patients to sign T2 forms, however we are concerned that this could have adverse consequences. For example, patients may feel that their signature carries a contractual status and therefore cannot be easily withdrawn, should they later change their mind and wish to refuse the treatment in question.
SOADs
CPT report and recommendation
190. Capacity assessments are carried out upon admission and regularly reviewed. In all establishments visited, the delegation found that second opinion appointed doctor (SOAD) assessments were carried out over the telephone. This is a completely unacceptable way for such a procedure to take place and does not provide sufficient safeguards, particularly for the young autistic patients at the Alnwood Unit who had multiple additional diagnoses. The CPT understands that due to restrictions related to the Covid-19 pandemic, it was not always possible for these assessments to take place in person, but they should at the very least take place in a manner that enables the SOAD to gain a better idea of a patient’s situation than merely by hearing their voice over the telephone. In fact, the High Court of England and Wales recently ruled in an advisory opinion that “personally seen” (section 11 MHA) and “personally examined” (section 12 MHA) require physical presence. The CPT recommends that the United Kingdom authorities take action to ensure that patients in all mental health facilities are seen in person during a SOAD assessment.
Government response
Remote assessments by the SOAD service using video and telephone communication were adopted at a time when national Covid -19 restrictions were in place and the practical alternative – passed in law (Coronavirus Act 2020) but never implemented – was the suspension of SOAD assessments and their replacement by self-certification by treating doctors. Following a relaxation of the Covid-19 restrictions, SOAD assessments can now be carried out in person through a visit by the SOAD to the detaining hospital, although CQC allows the option of a remote assessment where this is deemed appropriate by the individual SOAD. The pandemic has broadened the use of telemedicine in many fields of practice, and while the CQC accepts that there are particular sensitivities regarding the issue of treatment without consent under a statutory framework, we do not take the view that this necessarily excludes the use of telemedicine in the procedural safeguards of a SOAD assessment. The CQC supports the continuation of remote assessments as an option as it considers that they can be a practical and effective way to provide the procedural safeguard, especially where it might be decided (on a case-by-case basis) that an assessment in person would cause unnecessary delay without adding value or meeting a patient’s express wishes. Any visitors to units are required to follow the appropriate IPC requirements/guidelines which includes those related to COVID.
CPT report and recommendation
191. The CPT’s delegation also noted that there were often delays in accessing a SOAD, particularly at St Andrew’s Healthcare Northampton where SOADs took six weeks or even longer before they came to carry out the assessment. In the meantime, patients were treated under section 62 MHA which should only be used in emergency situations. This state of affairs is completely inappropriate, as not only are patients treated against their will for longer than the current statutory period of three months, but it also represents a misuse of section 62 and means that there is no effective legal basis for the involuntary treatment.
The CPT recommends that the United Kingdom authorities take steps to reduce the time limits for SOADs to carry out their assessment to ensure that patients are not subjected to involuntary treatment beyond the current statutory period of three months without a second opinion.
Government response
The cause of patients being treated without certification (under urgent treatment powers) upon the expiry of the three-month rule may be due to undue delays in completing the SOAD procedure but can also be due to late requests for that procedure to start, or inadequate information being provided by the treating hospital. There is currently nothing intrinsic to the current SOAD procedure that extends its duration beyond what is necessary to make physical arrangements for the review of treatment.
As such the key focus on ensuring that there are no gaps between the end of the three-month rule and completion of SOAD assessments is for treating hospitals to ensure that they anticipate and request such assessments in good time before the end of the three-month period. The MHA Code of Practice states that such requests should be made at least four weeks before the end of the three-month period (para 25.15). CQC collates information on late requests and shares this with Providers through its INSIGHT reports to enable them to investigate and audit their practice in this regard, and CQC can follow up with authorities who appear to be making such late requests at an avoidable level.
Data on all second opinion activity for the last two years shows a national average time from receipt to assessment of 12 days.
For St Andrew’s Hospital, specifically mentioned by the CPT, this has been 20 days. However, we do accept that 36 (9%) out of 386 second opinions for St Andrew’s took six weeks to completion. St Andrew’s is a large site with a relatively long-stay population, and as such submits a high volume of SOAD requests. This does create a challenge in meeting their specific demand with a relatively small pool of SOADs willing or able to visit or carry out the second opinions remotely for this site. This is one of a few hospitals where we agreed to arrange monthly day sessions (pre-scheduled days where the appointed SOAD would carry out multiple second opinions). These have not always worked as expected, due to logistical difficulties (e.g., due to a lack of arrangements on the part of the Provider or when the appointed SOAD is unable to do the day due to ill health), and despite regular SOAD activity at the site, where day sessions have to be cancelled this exacerbates delays.
There are no statutory time limits for the completion of SOAD work, and we do not have plans at present to introduce ones for general requests. If the SOAD assessment is requested with sufficient time before the end of the three-month rule, such a time limit would serve no purpose. We consider it would be better for the assessment to take as long as is required to ensure adequate consultation, etc, than be curtailed by an arbitrary cut-off point. In a similar way, for much of the civil detention procedure under the MHA there are no such time limits, with similar justification.
The CPT notes the UK Government’s proposal to reduce the ‘three-month period’ to no longer than two months in any case, and considerably shorter for some cases. SOAD procedures are under exploration at present as legislative proposals are being drawn up.
The Mental Health Tribunal
CPT report and recommendation
193. In its report on the 2016 periodic visit to the United Kingdom, the CPT had recommended that patients be able to appeal against a compulsory treatment decision to the Mental Health Tribunal. Although the situation had not evolved at the time of the 2021 visit, the CPT notes that the planned reform of the MHA will make it possible for patients to be able to challenge a specific treatment before a single-judge tribunal (in a “permission to appeal” stage before the case goes to a full MHT hearing). The judge will not be able to make a clinical decision but will be able to make a finding that the responsible clinician should reconsider their treatment decision. The CPT supports this proposed additional role for the MHT.
Government response
The Independent Review of the Act recommended that patients should have a new right of appeal to a single judge of the First Tier Tribunal (Mental Health) (MHT). We consulted on this proposal in White Paper Reforming the Mental Health Act 1983 and a number of significant concerns were raised with this policy, which we are currently exploring in greater detail to establish if they can be overcome.
CPT report and recommendation
195. The CPT’s delegation found that in all establishments visited, review procedures appeared to function appropriately. Provision was made for MHTs to take place on the premises, although during the height of the pandemic, the tribunals were held via videoconference. At Bamburgh Clinic, during the first lockdown, there was no hearing of the person either physically or remotely; reviews were only carried out on paper. Even though a tribunal without a hearing is permitted, particularly during the pandemic, in exceptional circumstances by the First-tier Tribunal (Health, Education and Social Care Chamber) Rules, which the MHT must follow, the CPT considers this not to be a good practice, as the possibility for the patient to attend tribunals preserves their interest in the decision-making process. The CPT recommends that even during public health crises, patients with mental health disorders have an effective right to be heard by the MHT at the very least by audiovisual means when the court reviews the lawfulness of their continued involuntary hospitalisation.
Government response
In response to the COVID-19 outbreak, a series of temporary, emergency rule changes and practice directions were made to alter how proceedings in the tribunals could be conducted. After six months, these practice directions were reviewed and extended until March 2021.
These temporary measures affected the Mental Health Tribunal by:
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- allowing cases to be decided by a single judge sitting alone, unless the Chamber, President or Deputy Chamber President considers it to be inappropriate.
- allowing certain cases to be dealt with on the papers, unless the Tribunal considers it to be inappropriate; and
- temporarily removing the requirement for pre-hearing examinations, unless the Chamber President, Deputy Chamber President or an authorised salaried judge deem one necessary due to the exceptional circumstances of the case.
The changes enabled the Tribunal to continue operating during the pandemic period. During a crisis the Tribunal needs to retain the flexibility to respond as is necessary and appropriate in order to deliver justice. This may include being able to prescribe whether certain categories of cases may be more suitable to be dealt with on the papers, and/or allowing patients to be able to choose to have their case dealt with as a hearing by papers. During the pandemic the Tribunal utilised the use of video/ audio hearings where appropriate and the Tribunal continues to utilise this technology today.
IMHAs
CPT report and recommendation
198. […] All patients in mental health units in England have access to independent mental health advocates who help patients express their views and concerns, including when making a complaint. However, not all patients in Priory Hospital Enfield were aware of the existence of these advocates and some said that they had never seen one. The CPT stresses the importance of independent mental health advocates as providing an additional safeguard for patient’s rights and recommends that all patients be informed of their existence and provided greater access to them.
Government response
Independent mental health advocates (IMHAs) provide important safeguards to people detained under the Act. We want to expand the role of IMHAs so that they can also
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- support patients to take part in care planning
- support individuals to prepare advance choice documents
- challenge treatment decisions where they have reason to believe they are not in the patient’s best interests
- appeal to the tribunal when patients are too unwell to do so themselves
High quality advocacy is critical to make sure people get the support they need when detained. We are considering how we can improve the role and we welcome your views on whether this can be achieved by professionalising the service.
As set out in the White Paper Reforming the Mental Health Act 1983, we will take forward legislative changes to extend eligibility of IMHA services to all mental health inpatients, including informal patients, and to add the proposed additional rights and powers relating to supporting service users with advance choice and care planning, and applying to the Tribunal on behalf of the service user. We will also consider the requirements needed for an opt out service.
{Editorially, it is noteworthy, one might think, that the CPT appear to proceed on a rather different basis as regards the fundamental validity of a system which allows for compulsory detention and treatment (even including naso-gastric “force” feeding), than does the Committee on the Rights of Persons with Disabilities); likewise the CPT appears to accept concepts such as mental capacity which are contested by the Committee. See further in this regard the discussion at Appendix B to the report of the independent Review of the MHA 1983.
[1] Note, the CPT appears not to have visited Northern Ireland, Wales or Scotland; neither the report, nor the Government’s response, appears to take account the different frameworks in place in those jurisdictions (even the MHA 1983 operates somewhat differently in Wales): it focuses solely upon the position in England.
