Prone restraint in mental health hospital

My partner and I recently finished Season 4 of Orange is the New Black (highly recommend), and one episode particularly resonated with me. In fact, it made me cry, and I’m not a crier.

The episode centred around an inmate named Poussey, who, in the midst of an ‘incident’ within the prison, was forcibly held to the ground by a prison guard for an extended period of time, whilst the prison guard was being tackled by another inmate.

My partner had no idea what the result of this act would be. I knew, through my work within Public Law and mental health, and I knew that the use of such restraint can bring about death.

Prone restraint is where a person is held to the ground in a face-down position and is physically prevented from moving from that position. Too much force and the result can be fatal. The concern is that prone restraint can result in dangerous compression of the chest and airways, thus placing the person being restrained at a huge risk.

The majority of NHS Trust policies on the use of such restraint suggest that it ought to be used only as a last result, following unsuccessful attempts at de-escalation. Unfortunately, I am aware of incidents where prone restraint appears to be used as a first port of call, often on those with severe learning disability, and often in mental health hospital.

I appreciate that professionals within such a setting must keep themselves, the service user and other patients’ safe, but it is frightening that use of prone restraint remains commonplace, and remains the norm, despite policy suggesting that it should be used only in the most extreme circumstances.

There is a reason that prone restraint ought to be used as a final option – in 1998, a 38 year old gentleman named David Bennett was held in the prone restraint position by 5 staff members for a 25 minute period, resulting in his death. An independent inquiry (bbc article 18/06/13) found that Mr Bennett died as a direct result of prolonged face-down restraint and the amount of forced used by staff.

Did this end the use of prone restraint? No. According to Mind (2013), there have been 13 reported incidents of restraint related deaths in the UK since this. This figure is only for those detained under the MHA 1983 and included only those deaths which were actually reported. The figure is therefore likely to be higher, particularly taking into account the years following the study.

Shockingly, as someone living and working in the North East of England, Northumberland Tyne and Wear NHS Foundation Trust responded to a freedom of information request from Mind and stated that, in 2011-2012, prone restraint was used 923 times.

This is not uncommon, however, with Stewart et al (2009) finding that manual restraint is used 5 times per month on an average mental health ward. According to Mind, one Trust which responded to an FOI request stated there had been 38 incidents of prone restraint, whilst another said there had been over 3000 incidents.

Mind’s recommendation from the 2013 research was, of course, that the government ought to end the use of face down physical restraint.

Has this happened? Of course it hasn’t. The figures speak for themselves. Prone restraint continues to be used, on a large scale, and for as long as this is the case, there will be more and more restraint related deaths.

Not only ought the risk of death be enough for professionals to use every possible de-escalation technique available, but the use of such restraint can cause physical injury and psychological harm. Mind (2013) provided a quote from someone who had experienced such restraint; “it made me feel like a criminal, like I had done something wrong, not that I was ill and needed to get better”.

The free reign to use prone restraint is frightening. The fact that it is used to varying amounts across the country is worse, because it suggests either that instances of prone restraint often aren’t reported, or that staff aren’t provided with the same training across the board. I fear that both are correct.

Those detained under the MHA 1983 are in hospital, usually, for assessment and/or treatment. The mental health hospital ought to be viewed as a place of safety, where care is provided to those in crisis. The possibility of attending hospital and dying there due to an excessive use of force by those who were supposed to be caring for you, is a frightening concept, but it is one that is all too real.

Patients need to feel safe in the hospital environment. The use of prone restraint must be ended.

Mental health service closures

Whilst working within mental health and mental capacity law, I’ve found that there are many situations which really strike me personally. In particular, I have developed an interest in wrongdoings within mental health services, because I can see the situation from the perspective of the outpatient service user, having been involved with services since 2012.

Access to services is a huge issue at the moment. I was rather lucky in that I was able to gain access to services quite quickly through IAPT, though, once my course of CBT had ended, I was basically left in the dark.

I read something on twitter the other day from a service user, stating that he’d missed an appointment because the letter from the hospital had taken so long to arrive. I mean, in 2016, how is that still happening? It may seem like a small thing to some, most likely to the hospital, but these appointments, in times of both crisis and calm, provide routine and stability for service users.  When I was making regular trips to appointments with mental health services, it gave me a sense of comfort just to know that I was doing something. Had I missed an appointment because of the appointment letter being sent by carrier pigeon, particularly with my anxiety when it was at its worst, that would have been one of the worst things that could happen; from the outside looking in, it seems that mental health services can’t empathise with this or many others’ experiences.

Access to inpatient services is where this real division of interest is shown. We’re all aware of the distinct lack of beds within mental health units, which are needed by those who are usually in crisis and cannot be treated effectively in the community. Yet despite this known issue, more and more mental health units and hospitals are closing every year.

According to The Kings Fund, ‘Mental health under pressure’ (November 2015) 40% of mental health trusts experienced a reduction in income in 2013/14 and 2014/15. The analysis by The Kings Fund confirms what many of us interested in this area already know – there are more and more people being detained under the Mental Health Act (a 9.8% increase in 2014/15 compared to the previous year); a lot of these actually receive poor care, particularly when in crisis (only 14% of patients say that they received appropriate care in a crisis); the number of beds is decreasing, meaning that services cannot meet the demand; and, despite this, mental health units continue to be closed down. So, what is the outcome from that? People are either left without the help that they need, or are detained in a hospital somewhere far from home, far from normality, and far from comfort. According to a Freedom of Information request by the Community Care and BBC News, 4,447 patients were sent out of area by 37 NHS mental health providers in 2014/15. 88% of the 4,447 were sent out of area due to beds being full.

I have been looking in to closures of mental health units and, even if you just give it a quick google, you can see the scale of the problem. By way of example, in October 2015 Bootham Park Hospital, York’s only public adult mental health hospital, was closed following a report by the CQC, with 5 days’ notice being given. How many people did this affect? 30 inpatients and 400 outpatients. When something like this happens, particularly with such short notice, it must be like being abducted, and ripped away from everything you knew. In February 2016, Outpatient services resumed, after a huge amount of local pressure. However, for those patients in crisis, requiring inpatient care, they, and their families, are expected to travel 50 miles.

50 miles isn’t the worst it could be. There are instances of people being placed 300 miles from home. But, when these patients are very unwell, to be placed in hospital in a completely new area, in my opinion, surely can’t help them in the short term. Whilst detained under the Mental Health Act, a patient can be granted section 17 leave from their Responsible Clinician. I can’t imagine how difficult it must be to enjoy leave in an area you have never been before. Leave is a way of readying patients for discharge, but, certainly for those with anxiety, going out in the community in an unknown area would be incredibly daunting, and could even be a bit of a step-back. It’s hard to see how having leave in a town 100, 200, 300 miles from home is going to prepare you for living in your community.

Another example of mental health unit closures, resulting in patients having to travel, and one that is actually happening right now, is The Welland Centre, in Market Harborough. I came across this closure in an article a couple of weeks ago – The Welland Centre, which provides adult community health services, hosts clinics for up to 450 patients. That’s 80 patients each week and approximately 4000 appointments each year, and patients will be expected to travel elsewhere to access the help that they need.

One patient of the service has developed a petition to save the service – https://petition.parliament.uk/petitions/131744 – which currently has 764 signatures, one of those, of course, being my own. Should the Welland Centre close, patients would be expected to travel for one hour and a quarter to reach the service. For those who do not drive, like myself, this is two bus journeys. When I was having regular appointments with mental health services at Warwick Uni, I had to travel by bus from where I lived in Leamington Spa onto campus. Sometimes, when I was feeling particularly low, I simply couldn’t do it. I had so much anxiety around the University campus, the bus, the students, that I physically couldn’t get on the bus to get to the appointment sometimes. I probably never would have attended any appointments if I had to take two buses.

Now, putting my legal hat on, one big issue for me in situations involving closures of services, is that patients, families, and those who simply have an interest, do not know that the law can assist. When people are informed that their service, usually a service they have used for many years, is closing, they can feel alone. People generally don’t know (and, to be honest, why would they) that there are possible ways to legally challenge the decision to close the service – to go back to Bootham Park hospital in York (https://www.theguardian.com/society/2016/mar/14/the-nhs-mental-health-hospital-closed-with-just-five-days-warning), lawyers are representing the families of some former patients of the hospital and are seeking a judicial review of the “forced closure” of the service.

Judicial review is where a case is taken to the High Court, and it is argued that a decision of a public body is unlawful. This could be that the body has acted beyond its powers, or has not taken something into account etc. Obviously, there is no guarantee that any challenge would be successful, but I think that it is vital that there is something that can be done legally, at least to try to stop any decision to close a service.

That is why I really enjoy working within this area of law. Despite all of the issues with mental health services, and despite the general thought that lawyers are cold and can’t help real people, I like to think that in this area we actually could make a difference and, if a difference can’t be made, it is always nice to say we tried.

 

The Conservatives are in. Is mental health out?

The Care Quality Commission has found that the mental health care system is ‘struggling to cope’ after reviewing the help provided to people in ‘mental health crisis’ (including those who are suicidal, or are having a severe panic attack or psychotic episode). Last year, 1.8m people sought help for a mental health crisis.

The review by CQC found that 42% of patients did not get the help that they needed. Patients were asked about the attitudes of staff towards them when they presented with a mental health issue, and it was found that staff in A&E did not fare well. 5% of all A&E attendances are recorded as relating to mental health problems, yet only one third of patients attending A&E thought that they had been treated with compassion and warmth. Attending A&E is a daunting experience in and of itself, and to add the extra layer of feeling shut out by staff and looked down upon because you suffer from a mental illness and not a broken leg, will surely only make those suffering with mental health problems less likely to access the help available.

CQC’s Mental Health Lead, Dr Paul Lelliott, has stated that these findings must ‘act as a wake-up call’. According to the Chief Executive of Rethink Mental Illness, Mr Mark Winstanley, “for too many people, going to A&E is the only way they can get care if they’re in a crisis”.

Mental health receives only 13% of NHS funding, even though it accounts for 23% of the disease burden. Care Minister Alistair Burt has stated that improving mental health care is his priority, and that the government is trying to tackle the problems in mental health through its new treatment targets and extra funding.

The Conservative manifesto this year included numerous promises relating to mental health care : increase mental health spending; improve access to talking therapy and ensure that therapists are available throughout the country; introduce new waiting time standards; pregnant women should have access to mental health support both during and after pregnancy; ensure that veterans with mental health problems receive proper care; provide health and community based places of safety for those detained by police under s136 MHA 1983.

Rather memorably during the election campaign, the Conservative parliamentary candidate for Cambridge suggested that those with mental health issues should wear colour-coded wristbands to identify their conditions. According to the candidate, this wristband system could improve the system.

Thankfully, this idea was dismissed as ludicrous pretty much straight off the bat – not only is the idea of a colour code for mental illness entirely unworkable, given that mental health issues do not tend to group into one single illness (most wristbands would probably be rainbow coloured), but it would add so much more stigma to those struggling with mental health problems. It would be adding to the idea that mental illness is not viewed as on a level with physical illness – you can see that someone has broken their arm but you cannot see that someone is bipolar and, for some reason, this scares people.

Our focus needs to be on ending stigma, not adding to it. The Conservative manifesto itself, whilst thankfully not mentioning a colour code system, included that “People who might benefit from treatment should get the medical help they need so they can return to work. If they refuse a recommended treatment, we will review whether their benefits should be reduced”. Thus the first mention of mental health in the conservative manifesto is related to benefit sanctions – fantastic. The manifesto appeared to view those with mental health issues as a burden on society, with a return to employment being viewed as the ultimate goal.

With Jeremy Hunt as Health Secretary, we can hardly be surprised – Mr Hunt once stated that he did not understand how Alastair Campbell could be depressed as he looked like he had a ‘great life’. The Mental Health Policy Group estimates that 2 million more UK adults will experience mental health issues by 2030. With the Conservatives set to make £30bn of cuts, £12bn of which will be welfare cuts, and with no clear breakdown of where exactly these cuts will come from, the worry is that mental health will be overlooked once more. Let’s face it, the Conservatives don’t have a great track record when it comes to mental health – in 2011, the coalition boasted about its ‘No Health Without Mental Health’ strategy document and just one month after the document was published, the National Mental Health Development Unit was thrown in the garbage. Now, the Conservatives no longer have the Lib Dems to keep them steady and I certainly worry about what the future may hold for our mental health care system.

It is safe to say that I am not the biggest Tory supporter but the evidence does speak for itself. Over the course of the Coalition, referrals to Community Mental Health Teams increased by 20% and yet there was a £600m cut to mental health trust budgets. Not only this but, since 2011, the number of available mental health beds in inpatient facilities has dropped by 12%.

BBC news has stated that data from 75% of trusts shows that, from 2014/15 to 2018/19, income is expected to fall by 8% in real terms. NHS England correctly noted, however, that no accurate predictions can be made until the government sets out its spending plans.

Only time will tell whether Mr Cameron will stick to his promises but my fear is that he will not. I hope that I am wrong.

Deprivation of Liberty Safeguards

The number of people living with Alzheimer’s who are subject to deprivation of liberty safeguards (DoLS) is on the increase. DoLS are intended to ensure that residents in care homes and hospitals are protected in a way that does not deprive them of their liberty (if a person lives in supported living or their own home then it is possible to deprive them of their liberty in their best interests, but this must be done by applying directly to the Court of Protection). Effectively, DoLS authorise a deprivation of liberty when it is necessary to do so for a patient or resident who lacks capacity to consent to care or treatment in order to keep them safe from harm.

It has recently been reported that DoLS are linked to delays in families being able to bury their loved ones when they have died in a care home. This is because regulations require state inquests into such deaths, even when the cause of death is fairly clear – the deceased who was subject to the safeguards is considered to have died ‘in state detention’ thus an inquest is needed and the release of the body is delayed.

The Independent on 28th May 2015 interviewed a relative of someone who had been subject to the safeguards and who was forced to wait for 2 months before being able to bury the deceased. That relative stated “who actually benefits from these safeguards? It’s a box ticking exercise and I’m just so glad it’s finally over”.

There has been a dramatic rise in DoLS applications over the past year – The Independent quotes that 113,000 applications were made and that 36% of these were granted. That same article also includes a quote from George McNamara, Alzheimer’s Society, who states “DoLS are important for people with dementia to make sure they are not wrongly deprived of liberty but the current system is complicated and there is lack of awareness about the process”. I agree entirely with this statement and hope that this post will bolster people’s understanding of DoLS and their beneficial uses.

Deprivation of Liberty Safeguards are part of the Mental Capacity Act 2005. A deprivation of liberty is described as occurring when ‘the person is under continuous supervision and control and is not free to leave, and the person lacks capacity to consent to these arrangements’.

For a person to have capacity, they must be able to : 1) understand information relevant to the decision they want to make 2) retain that information long enough to allow them to make a decision 3) weigh up that information to come to a decision 4) communicate that decision.

The ECtHR has clarified what may amount to a deprivation of liberty. Examples of such deprivation include: restraint so that someone may be admitted to hospital; medication given against the person’s will; staff making all decisions about a person; and staff restricting a person’s access to family and friends. The point is that, whilst doing these things does deprive someone of their liberty, it is done for the person’s own benefit – therefore a DoLS is something that legally authorises the deprivation of liberty. If the examples above took place without a DoLS in place, then the person’s human rights would have been breached. Thus, under the MCA restraints and restrictions are allowed to be used when in a person’s best interests, but DoLS are needed if this restriction and restraint amounts to a deprivation of liberty.

If a relative were in a care home/hospital, and you felt that they were being deprived of their liberty but there is no authorisation for such deprivation in place, then the first port of call would be the care home manager – always attempt to resolve things from the bottom and an agreement could be reached re more freedom for your relative. If the care home manager does not think that an authorisation is needed, then you would approach the local authority and ask them to investigate whether a deprivation of liberty has taken place.

It is against the law to deprive someone of their liberty without there being an authorisation in place.

The recent case of Re AJ [2015] clarified that a local authority, when it knows that a person will be entering a care facility on a permanent basis, should make an application to the court or carry out a DoLS assessment. Effectively, authorisation should be obtained before any deprivation of liberty occurs. If an authorisation has not been made prior to a person’s move into a care setting, then an urgent authorisation could be made by the care home/hospital manager when the person arrives, although Re AJ [2015] confirmed that such an authorisation should last for no more than seven days, save in exceptional circumstances, and that an application for standard authorisation ought to be made at the same time.

The assessment process for a standard authorisation involves at least two independent trained assessors – one mental health assessor and one best interest’s assessor. If the pair do not think that all of the conditions have been met then the deprivation of liberty will not be authorised. This procedure is intended to protect the patient or resident in question. Part of the assessment process is that family, friends and paid carers who know the person well be consulted so that they may give suggestions as to how the person may be supported without depriving them of their liberty.

Should the care home resident or hospital patient concerned have no family or friends, they can utilise the support of an IMCA (Independent Mental Capacity Advocate) during the assessment process.

Following authorisation, a Relevant Person’s Representative (RPR) should be appointed as soon as possible. It will tend to be a family member or friend who will fulfil this role but if no one will take on the role on an unpaid basis then the supervisory body will have to pay someone to be the person’s RPR. In such a case, it is likely that this will be an advocate. If the RPR is unpaid (which would be the case if it were a friend or family member) then both the person and the RPR are entitled to the support of an IMCA.

An authorisation for a deprivation of liberty is intended to last for the shortest time possible, with the maximum authorisation time being 12 months, during which time regular checks must be carried out to determine whether the authorisation is still needed. If the authorisation is no longer necessary, then it must be removed. The patient/resident and their RPR are able to challenge the deprivation of liberty in the Court of Protection at any time, and can also require the authorisation for the deprivation to be reviewed at any time. The review would determine whether the criteria to deprive the person of their liberty is still met and, if so, whether the conditions need to change.  The home or hospital should do all that it reasonably can to explain to a detained person and their family what their rights of appeal are.

Useful info on DoLS can be found at:

http://www.rcpsych.ac.uk/healthadvice/problemsdisorders/deprivationlibertysafeguards.aspx

http://www.scie.org.uk/publications/ataglance/ataglance43.asp

Police cells as ‘places of safety’

According to an article in today’s @guardian Home Secretary Theresa May has pledged up to £15m to provide health-based alternatives for the 4000 people per year who spend time in detention in police cells under the Mental Health Act.

Currently, people detained under the MHA can be held in a hospital or a police station for up to 72 hours, with the premise being that a police station is a place of safety.

police-cell

Section 135 empowers police officers to enter private premises (with a warrant) to remove a person suspected of needing an urgent mental health assessment. Section 136 gives power to the police to remove someone from a public place to a ‘place of safety’ where, under the Mental Health Act, they can be detained for up to 72 hours. In around one third of cases, the ‘place of safety’ is a police cell.

Under the new policing and sentencing bill which is due to be released next week, the use of police cells to detain children with mental health problems will be banned.

This comes soon after research published by the Centre for Mental Health in late 2014. The research was commissioned by the Department of Health and the Home Office and found that for many people, being detained by the police was a frightening experience. That does not really come as a surprise – I know that I certainly wouldn’t choose to spend time in a police cell and Theresa May appears to be on the right track that people with mental health issues should not be ‘locked up’. This is particularly so given the report’s statement that “we found broad agreement among all those who worked with or had been subject to sections 135 and 135 that police custody should seldom if ever be used as a ‘place of safety’… there was widespread agreement that the use of these sections with children and young people was especially problematic”.

Whilst this Tory plan to put more funding into creating more suitable places of safety for young people with mental health issues came as a nice surprise to me, it does only apply to children. The new legislation will, however, ensure that police cells are only used as a place of safety for adults if the person’s behaviour is so extreme that they cannot otherwise be safely managed. Immediately, my mind asks what on earth ‘so extreme’ refers to and whose call it is as to when behaviour meets that threshold. I guess only time will tell with that one.

I think that it would be a good starting point to have age-appropriate places of safety. Of course, the legislation discussed above is more concerned with people under the age of 18, who are therefore classed as more vulnerable. But what about older people? I can say with conviction that a police cell absolutely would not be a suitable place for my 81 year old grandma.

We won’t know the exact ins and outs until the bill is set out in next week’s Queen’s speech but for now it is suggested that the bill will reduce the current 72 hour maximum period of detention and will enable places other than police cells and health-based alternatives to be ‘places of safety’.

In utilising police cells for the purpose of detention under the Mental Health Act, it automatically feels as though the person detained has done something wrong when, of course, in the vast majority of cases they have not. When you think of a police cell you don’t think of it as a place of safety, you think of it as a place for punishment, regardless of what its purpose actually is. I understand that sometimes there simply aren’t enough beds to go around but surely a prison cell can’t be the only alternative? Imagine how daunting it would be to be taken from a public place and put into a prison cell, ostensibly for your own safety. I know that I would be beside myself and would probably be quite scared that I was being accused of some sort of a crime. Do people with mental health issues really need these extra levels of hardship when what we should be doing is re-assuring them that they are safe and protected, but also that they have done absolutely nothing wrong. This could be particularly important given the fact that after the detention period there will be a mental health assessment. We ought to be reducing stress-levels, not increasing them.

If those with a physical illness were turned away from hospital due to overcrowding and were taken to a police cell, there would be a massive outcry. Shockingly, it is estimated that between 20% – 40% of police time is spent dealing with people with mental health issues. Needless to say, the correct place for someone with a mental health problem is not a police cell and the best people to look after them are not police officers.

Let us hope that Theresa May puts her words in to actions and we see more health-based and perhaps community-based places of safety for the mentally ill.