Mental Health Bill [HL]

moved Amendment No. 71A: 71A: Before Clause 36, insert the following new Clause— ““Use of seclusion and other forms of behaviour management After section 142 of the 1983 Mental Health Act insert— ““142A Use of seclusion and other forms of behaviour management (1) This section applies to the use of seclusion, mechanical restraint or other interventions to manage disturbed behaviour as may be specified for the purposes of this section by regulations made by the Secretary of State. (2) For the purposes of this Act, ““seclusion”” means the supervised confinement of a patient in a room, which may be locked to protect others from significant harm. (3) A patient shall not be subject to any form of intervention to which this section applies, except in accordance with regulations. (4) The Secretary of State shall make regulations prescribing— (a) circumstances under which any form of intervention to which this section applies may be used; (b) reporting requirements on the use of any such intervention; (c) review and scrutiny of the use of such interventions; and (d) circumstances under which patients subject to such interventions must be visited by persons authorised by the Commission. (5) Before making any regulations for the purposes of this section, the Secretary of State shall consult such bodies as appear to him to be concerned.”””” The noble Baroness said: The amendment has been introduced late in the passage of the Bill due to the report of the Joint Committee on Human Rights. Other noble Lords around the House will be quite aware of that. The JCHR recommended: "““We urge the Government to ensure that, whatever method of regulation is adopted, sufficient safeguards are included on the face of the bill to ensure that seclusion is only used when strictly necessary and that individuals subject to it should have access to review at intervals to ensure that it is brought to an end when no longer necessary””." The amendment deals with seclusion and regulates its use and other methods of managing disturbed behaviour to provide greater safeguards to patients subjected to such interventions. The Joint Committee on Human Rights identified the lack of regulation in the Act as an omission. The House of Lords held, in R (Munjaz) v Mersey Care NHS Trust and Others, concerning the introduction of a written policy governing the seclusion of patients at Ashworth Hospital that diverged considerably from the framework in the code of practice on the frequency of review, that, "““hospitals are free to depart from the Code if they have a good reason for doing so””." Given the recommendations of the JCHR and the absence of reassurances about the status of the code of practice, we thought it appropriate to debate the regulations of seclusion even at this stage of the Bill. Seclusion is defined in the code of practice on the Mental Health Act 1983 as, "““the supervised confinement of a patient in a room, which may be locked to protect others from significant harm. Its sole aim is to contain severely disturbed behaviour which is likely to cause harm to others””." The definition in this amendment is based on that. The code also specifies that: "““Seclusion should be used … as a last resort … for the shortest possible time””." It, "““should not be used; as a punishment or threat … as part of a treatment programme … because of shortage of staff””," or, "““where there is … risk of suicide or self-harm””." I think that the Mental Health Act Commission may have proposed a slightly different amendment to guidance on the latter point. It may be necessary to have a fuller description in regulations or the code of practice to ensure that all practices that amount to seclusion are indeed covered. In its latest biennial report, the Mental Health Act Commission sets out various terms used to describe a range of practices that still amount to seclusion. These include therapeutic isolation, single-person wards, enforced segregation, and restriction of movement. The quality of care provided under these circumstances can vary widely, from the very good to the dangerously substandard. The Department of Health has also referred to different kinds of nursing and accommodation that is separate from other patients as ““alternatives to seclusion””. Again, that may undermine regulation of these practices. This amendment deliberately uses the language of managing behaviour to differentiate these interventions from clinical or therapeutic interventions; I cannot state too clearly or strongly that they are not. There is some considerable prevalence of seclusion being used in the mental health system. The Mental Health Act Commission’s own census found that 3 per cent of all psychiatric in-patients resident on 31 March 2005 had experienced one or more episodes of seclusion in their period of admission or in the previous three months, 112 patients had experienced at least five periods, and 42 at least 10. The maximum number was over 100, and there were particularly high rates for black patients. Here is an issue that ought, yet again, to ring alarm bells with all of us; it seems to be overused for black people and those from minority-ethnic communities. It appears that this could be an area where the use of seclusion—if it is to happen at all—is overly strong with some communities rather than others. Over six months in 2004-05, the Mental Health Act Commission collected data on episodes of patients being held in isolation for 48 hours or more. It was notified of 74 episodes in the acute sector and 156 in the medium or high secure sector. Many were for much longer periods, and many were not described as seclusion. The Healthcare Commission’s recent audit of psychiatric units found about one-third saying that they used seclusion at some point or other. Numerous aspects of seclusion may lead to patients’ rights being infringed. The grounds for using seclusion could be punishment rather than treatment. There could be conditions in which people were accommodated without a toilet or any washing facilities—people can be cared for really badly during seclusion—or issues about how seclusion is brought to an end. For instance, there are examples of staff requiring the patient to ““show remorse””, or all sorts of issues in how complaints about using seclusion are dealt with. All these areas could be addressed by the review and by the visiting requirements envisaged in regulations. This amendment simply proposes that the Act sets the scope for regulations with which the use of seclusion, and any other interventions added to the clause, must comply. Those would define: the circumstances in which the measures could be used; reporting requirements; review and scrutiny; visiting issues; and, if there are people who are subject to prolonged or repeated seclusion, making sure that they are visited by an independent person who can protect their rights. These regulations would set limits on the use of seclusion and provide procedural safeguards to check whether people in this extremely powerless set of circumstances were being treated in accordance with the code of practice. As this is such an important and difficult area, we believe that there has to be consultation on any regulations before they are laid. Finally, in addition to the recent Joint Committee on Human Rights report, the Joint Committee on the draft Mental Health Bill recommended that the Bill regulate the use of seclusion and mechanical restraint by requiring the same kind of safeguards provided in the current code of practice to ensure that decisions to seclude or restrain are made only when absolutely necessary, are subject to regular monitoring and review, and that the seclusion or restraint is brought to end immediately the intervention is no longer needed for the protection of others. There should be a requirement to report such interventions to the Mental Health Act Commission and, if seclusion or restraint is prolonged, a member of the expert panel should visit the patients. The Government agreed with the Joint Committee on the draft Mental Health Bill about this when that draft Bill was still current and they agreed that similar safeguards should continue in this Bill. They also shared the concerns about prolonged seclusion and restraint and were exploring how best to safeguard patients’ interests in the context of the new legislation. According to the Mental Health Act Commission, the Government were considering using the mechanisms then being proposed in the Mental Health Bill that were concerned with medical treatment. We were all delighted that the Government were interested in regulating seclusion, but we are concerned that, given the legislation now before us, it no longer appears to be on the Government’s agenda and similar mechanisms to those governing treatments are being considered. Seclusion is a means of containing violent behaviour, but it is not a treatment. Confusing the two functions could have the effect of legitimising seclusion for other purposes and weakening any safeguards by giving scope for clinical discretion. We believe that this is a golden opportunity for the Government to fulfil their earlier intention to commit to a form of regulation and to work out, in consultation, the best way of doing it. I beg to move.