Judy M Laing

Monitoring those deprived of their liberty in psychiatric and social care institutions and national practice in the UK

The UK government ratified the United Nations Optional Protocol to the Convention Against Torture (OPCAT) in 2003. The OPCAT expressly requires that each state signatory should designate a National Preventive Mechanism (NPM). NPMs are national bodies that have the mandate to conduct regular visits to places of detention as well as make recommendations to the state to improve the situation of the persons deprived of their liberty. This article examines the international and national mechanisms for monitoring those deprived of their liberty in social care and psychiatric institutions, with particular reference to the current practice of the Care Quality Commission (CQC) monitoring body in England. The article examines the role of the UN Subcommittee on the Prevention of Torture (SPT) in monitoring at an international level and analyses the key elements for an effective national monitoring body (NPM) in this context, drawing on OPCAT, the recommendations of the SPT and the experience of the CQC and its predecessor, the Mental Health Act Commission. The article maintains that there is a need to safeguard procedural standards, such as a regular system of unannounced visits, operational and financial independence from the state, and a blend of appropriate expertise of visiting teams, including service user involvement. The article concludes that there is potential for the UN SPT and the Convention on the Rights of Persons with Disabilities (CRPD) Committee to develop guidance for monitoring bodies on implementing substantive standards, to ensure that the rights of patients detained in such settings are adequately protected and promoted.

PERSPECTIVES ON MONITORING MENTAL HEALTH LEGISLATION IN ENGLAND: A VIEW FROM THE FRONT LINE

This article discusses the findings of an exploratory study involving semi-structured interviews with a sample of Mental Health Act (MHA) Commissioners. MHA Commissioners are employed by the Care Quality Commission (CQC) in England to monitor patients who are deprived of their liberty under the Mental Health Act 1983 (as amended by the Mental Health Act 2007). The study was designed to examine the impact of the transfer of responsibility of mental health detention monitoring in April 2009 from the Mental Health Act Commission to the CQC. The interviews were devised around the United Nations Optional Protocol to the Convention Against Torture (OPCAT) framework, which provides a useful benchmark for effective monitoring of deprivations of liberty to national inspection bodies (known as National Preventive Mechanisms), such as the CQC. Article 18 of the OPCAT advises a regular system of preventive visits by independent expert monitors, as well focussing on the promotion and protection of human rights. There is paucity of data on the work of MHA Commissioners in England to date and the author was unable to locate any previous studies on the subject. This study is timely and important as the CQC has been heavily criticised following the abuses uncovered at Winterbourne View care home and in the wake of the Mid Staffordshire Inquiry. Consequently, in 2012, the CQC undertook a major strategic review. The findings of this study suggest that, whilst there is some evidence of compliance, the CQC still has some way to go to effectively fulfil its monitoring duties in line with the provisions of the OPCAT.

The nearest relative in the Mental Health Act 2007: still an illusionary and inconsistent safeguard?

Abstract The role of nearest relative (NR) is intended as a safeguard in the Mental Health Act 1983 (as amended in 2007) to curb the excesses of professional discretion and protect patients from unwarranted compulsory hospitalisation. It is unique to the mental health compulsory detention process in England and Wales. There are, however, evident tensions in the role and a lack of clarity surrounding the precise functions of the NR. There is also some uncertainty and confusion among practitioners about the scope of the NR involvement, and government plans announced recently to review mental health legislation will include a focus on the role of family and carers in the care of detained patients. Despite long-standing concerns about the role, there is remarkably little published research available to date on its use and effectiveness, in so far as evaluating the extent to which it provides an adequate safeguard for patients, as intended by the legislation. This article will briefly explore the background to the role, highlight some of the difficulties and tensions within it and conclude with some observations about where further research and reform may be needed to provide greater protection and clarity for patients, relatives and health and social care practitioners.

A human rights approach to advocacy for people with dementia: A review of current provision in England and Wales:

In this article, we review current advocacy services for people with dementia in England and Wales (provided, respectively, under the Mental Capacity Act 2005, the Mental Health Act 1983/2007 and the Care Act 2014) through the lens of the United Nations Convention on the Rights of Persons with Disabilities (CRPD). We examine what a human rights’ approach to advocacy support would entail, and whether current frameworks in England and Wales are adequate for this approach and provide a sufficient safeguard. First, we consider how the human rights of persons with dementia have become increasingly important and the extent to which the CRPD provides an opportunity to bolster safeguards and protection. Second, we discuss cause and case advocacy, and how these advocacy models could be shaped by the CRPD to promote the rights of persons with dementia at each stage of the disease. Third, we highlight current dilemmas and challenges in the provision of advocacy support in England and Wales by focusing on case law, commissioning of services and current practice. In particular, we analyse how the different legislative schemes have given rise to some confusion about the various advocacy provisions, as well as potential for overlap and discrepancies between different regimes. We also highlight the need for further research to address important gaps in knowledge, including the scale of need, patterns of referral and attitudes to advocacy services. The article concludes by highlighting how advocacy support could be recalibrated as a universal right to promote the aims and aspirations of the CRPD, and how education is needed to address the stigma of dementia and promote the benefits of advocacy in protecting the rights of those with dementia.

Protecting the rights of patients in psychiatric settings

Since April 2009, the Care Quality Commission (CQC) has been responsible for regulating standards of health and adult social care in England, as well as monitoring the operation of the Mental Health Act 1983. The latter function was previously performed by the Mental Health Act Commission (MHAC). This article compares the role and functions of both bodies in terms of their ability to provide a legitimate system of regulation and an effective safeguard for psychiatric patients who are deprived of their liberty. This paper is important, as there is very little published data to date on the work of the CQC and its predecessor, the MHAC. It is also necessary to evaluate changes to the regulatory landscape and compare the different regimes, to find out whether it has improved the protection and quality of care for mental health patients. The article concludes that the CQC does have the capacity to monitor detention, enforce standards and improve the quality of patient care, as long as it continues to endorse a commitment to human rights and service user involvement, to preserve the expertise and knowledge of visiting inspectors and to maintain accountability and independence from the State.

Protecting the rights of patients in psychiatric settings: A comparison of the work of the Mental Health Act Commission with the CQC

Since April 2009, the Care Quality Commission (CQC) has been responsible for regulating standards of health and adult social care in England, as well as monitoring the operation of the Mental Health Act 1983. The latter function was previously performed by the Mental Health Act Commission (MHAC). This article compares the role and functions of both bodies in terms of their ability to provide a legitimate system of regulation and an effective safeguard for psychiatric patients who are deprived of their liberty. This paper is important, as there is very little published data to date on the work of the CQC and its predecessor, the MHAC. It is also necessary to evaluate changes to the regulatory landscape and compare the different regimes, to find out whether it has improved the protection and quality of care for mental health patients. The article concludes that the CQC does have the capacity to monitor detention, enforce standards and improve the quality of patient care, as long as it continues to endorse a commitment to human rights and service user involvement, to preserve the expertise and knowledge of visiting inspectors and to maintain accountability and independence from the State.

Protecting the rights of patients in psychiatric settings: A comparison of the work of the Mental Health Act Commission with the Care Quality Commission

Since April 2009, the Care Quality Commission (CQC) has been responsible for regulating standards of health and adult social care in England, as well as monitoring the operation of the Mental Health Act 1983. The latter function was previously performed by the Mental Health Act Commission (MHAC). This article compares the role and functions of both bodies in terms of their ability to provide a legitimate system of regulation and an effective safeguard for psychiatric patients who are deprived of their liberty. This paper is important, as there is very little published data to date on the work of the CQC and its predecessor, the MHAC. It is also necessary to evaluate changes to the regulatory landscape and compare the different regimes, to find out whether it has improved the protection and quality of care for mental health patients. The article concludes that the CQC does have the capacity to monitor detention, enforce standards and improve the quality of patient care, as long as it continues to endorse a commitment to human rights and service user involvement, to preserve the expertise and knowledge of visiting inspectors and to maintain accountability and independence from the State.