Written evidence from Professor Judy Laing, HRIC, University of Bristol Dr Lucy Series Cardiff Law School (HCS0061)
NOTE: This supplementary evidence relates specifically to monitoring of human rights in care homes, which did not arise during the questions in our oral evidence session with the JCHR on 23rd February 2022.
As per the HRIC’s earlier written submission, the Care Quality Commission (plus inter alia Healthcare Inspectorate Wales/Scottish Mental Welfare Commission/ Regulatory and Quality Improvement Authority/Care Inspectorate Wales) is designated as a member of the UK National Preventive Mechanism (made up of 21 bodies). The UK NPM was established in March 2009 after the UK ratified the United Nations Optional Protocol to the Convention Against Torture (OPCAT) in 2003. OPCAT recognises that people in detention are vulnerable and requires States to set up a national level body that can support efforts to prevent ill-treatment. Most other countries designated one body. The advantage of UK NPM is that it has wide ranging, multi-disciplinary and specialist expertise for a range of detention contexts, for example HMIP visits prisons as NPM, CQC visits health and social care settings.
Key aspects for the NPM monitoring methodology – requires a human rights-based and preventive approach to independent monitoring.
CQC has sought to incorporate a human rights approach into regulation since 2014 – https://www.cqc.org.uk/guidance-providers/all-services/our-human-rights-approach Based on FREDA Principles – fairness, respect, equality, dignity and autonomy plus right to life. CQC has also published Equally outstanding: Equality & Human Rights good practice resource (November 2018) for care providers to reinforce the centrality of human rights in the provision of care and services.
The Subcommittee on the Prevention of Torture provides guidance to NPMs on the concept of prevention, which requires a system of regular proactive visits, not just reactive by responding only to complaints/concerns. NPMs should also have a system of announced and unannounced visits of sufficient frequency/regularity.
All UK NPM members carry out an annual self-assessment of OPCAT compliance and the NPM Secretariat produces a collective NPM annual report.
The NPM function adds a further layer to the CQC’s routine health and social care regulatory work for its MHA Monitoring work and for DoLS/LPS oversight - deprivation of liberty is broadly defined and applies to a range of settings (see HRIC’s earlier written evidence). However, this NPM role is not as prominent or widely known/publicised as its role as a health and social care regulator. There is nothing obvious /prominently displayed on the CQC’s website about this additional aspect of their work.
The Subcommittee on the Prevention of Torture (SPT) carried out its first country visit to the UK in September 2019 and recommended greater visibility for UK NPM bodies/work. The
SPT report to UK NPM was critical of the lack of formal legislative/statutory basis for the UK NPM which impacts on its credibility and effectiveness.
SPT recommends that NPM functions should be viewed as separate from ‘business as usual’ function – preventive function is not always prioritised by NPM members (CQC and Ofsted are both cited as examples of this in SPT report on UK, para 80).
SPT also recommended that:
SPT stated that the UK NPM must reinforce a preventive focus and integrate human rights-based approaches to monitoring to contribute to systemic changes. This is not just about checking for human rights breaches, but also to offer proposals as to how to reduce the likelihood of risk of torture/ill-treatment and formulate good practice/guidance (note that the CQC does this through themed reports and publishes some guidance to providers e.g., A report in 2020 on identifying and responding to Closed Cultures – it identified that some services are higher risk and especially during the pandemic, as there were no visitors and acute staff/finance pressures.)
This NPM function is acknowledged by the CQC in an appendix to recent Mental Health Act Monitoring reports. There is a clear and distinct focus within the CQC on Mental Health Act inspection visits. The CQC publishes, MHA Annual Monitoring Reports (which are required by the statute and laid before parliament). CQC also has designated and MHA reviewers with relevant expertise tasked with MHA monitoring (alongside CQC inspectors). The CQC’s monitoring power is grounded in s. 120 MHA (see end) which gives a statutory right to visit any in-patient detained under the MHA in private and speak to them about their experiences of detention. There is nothing comparable grounded in legislation for the DoLS.
The role and effectiveness of CQC oversight of MCA/DoLS is unclear. Limited data is available and there is a lack of (published) qualitative data on resident/service user experiences of DoLS in hospitals and care homes.
Moreover, CQC is no longer producing separate DoLS/MCA reports, and regular reporting on this issue is generally brief, and subsumed within the larger Annual State of Care reports relating to the CQC’s wider regulatory functions. There is only a small section on the CQC website with info on MCA/DoLS responsibilities and very little reported data available on their oversight work in this area.
In line with SPT guidance for NPMs, the CQC has produced some themed reports relevant to DoLS/MCA on experiences in care homes e.g. ‘Cracks in the Pathway’ (2014) review of dementia care highlighted:
CQC has also recently produced some useful Covid Insights and guidance e.g., into deaths in care homes and the guidance on Closed Cultures.
BUT as we know there are still too many reports/instances of human rights breaches, inequality across services and undignified and inhumane care (See for example CQC, Out of Sight – who cares? (2020)).
The new draft regulations on monitoring the LPS include promising provisions to gather better data on key safeguards like advocacy and access to the Court of Protection.
CQC’s new powers to visit and meet with the cared-for person, subject to their consent or others considering this to be in the person’s best interests, also show promise, but much depends on who is sent to meet the person, whether they have the requisite skills and experience to communicate with them (in line with SPT Guidance to NPMs, para. 20), and how that information is then captured in a way that is valuable both for service-level regulation and for national reporting on the LPS.
At the moment, the draft regulations mean that an inspector would either need the consent of the person (if they have capacity) or agreement from those caring for them or interested in their welfare that it is in the person’s best interests to meet with the inspector. Whilst it is important that inspectors do not intrude on a person’s privacy in ways that might be upsetting or distressing for them, there is also a danger of some individuals falling through the cracks here. Many people are isolated in care homes or hospitals without anyone except professionals regularly involved in their care, and those professionals may not always welcome the additional scrutiny of a monitoring visit from CQC. Meanwhile in some situations the person themselves may not be happy with their care but their family and professionals are, and again may not welcome a monitoring visit. We suggest that given the important human rights and safeguarding functions of these monitoring visits it would be preferable for CQC to be asked to ‘have regard’ to their views, and the views of the person in deciding whether to exercise this visiting power, if the person themselves lacks capacity to consent to the visit.
The draft regulations on monitoring LPS require the person to request a private meeting with inspectors, and CQC must ‘have regard’ to this. The opportunity for a private interview lies at the heart of the OPCAT monitoring role, and is an important safeguard. Relying on people to request a private interview, when they will often be unaware of their rights, and perhaps have difficulty making requests of people in authority, substantially weakens this safeguard. Instead, CQC should simply be empowered to interview the person in private where it is reasonable and appropriate to do so, taking into account factors such as the person’s likely feelings about this, and the ability of the person to speak freely about their rights or situation in front of others.
Unless the experiences of the person or observations of the inspector about the impact of LPS on them are stored in ways that can be captured at a national level the powers will not assist in our understanding of LPS as a system. It will also be important for people subject to the LPS to be given adequate information in accessible formats by providers and regulators about the monitoring role of the CQC, in line with the guidance currently provided in the Mental Health Act 1983 Code of Practice (paras. 4.25-4.26 - see end).
It would be helpful to draw on the CQC’s experience of monitoring the Mental Health Act and reflect this more closely in the LPS monitoring regulations. For example, requiring the regulatory bodies to produce a discrete annual report on their monitoring of the new LPS, which includes detailed quantitative and qualitative data on their methodology and findings. The draft regulations stipulate that the Chief Inspector and CQC must produce a report (Regulation 3) but the frequency is not stipulated and is at the discretion of the Secretary of State (see Regulation 3; and Regulation 5 ‘when requested to do so by the Secretary of State, the Commission and the Chief Inspector must produce a joint report to the Secretary of State on the operation of the Liberty Protection Safeguards’ – emphasis supplied). The monitors should be under a duty to present a discrete annual report on the operation of the DoLS, in line with the SPT Guidance to NPMs, para. 36 - the NPM should produce Reports following their visits as well as produce an Annual Report and any other forms of Report which it deems necessary.
Under the Mental Health Act 1983, the regulatory authority must make arrangements to visit and interview detained patients in private (in line with para. 35 SPT Guidance to NPMs). The draft LPS monitoring regulations are permissive in nature and less prescriptive on this, using ‘may’ not ‘must’, and the privacy requirement is discretionary and at the request of the cared-for person (cf MHA 1983 s 120(3) below)). Regularly visiting patients in private should be adequately prioritised within the work of the regulatory bodies to promote preventive monitoring, in line with the NPM obligations under the OPCAT.
It will also be important to ensure a coherent and consistent approach to monitoring the LPS by the regulatory bodies, for example through the creation of memos of understanding, and, in line with the SPT guidance to NPMs, for the government to provide adequate financial resources to enable them both to effectively carry out the NPM monitoring work (see para. 12 SPT guidance to NPMs).
Should CQC discover anything alarming when visiting the person, or otherwise monitoring their situation, they still have no powers to address individual complaints for people subject to the LPS (unlike people detained under the Mental Health Act 1983 per the guidance in the Mental Health Act Code of Practice paras. 4.53-4.67 – see end). They will need good channels of communication back to safeguarding and LPS teams to communicate concerns.
NOTE that the UN Independent Expert on the Enjoyment of Human Rights by Older persons is currently seeking evidence for her 51st thematic report on ‘Older persons deprived of their liberty’:
https://www.ohchr.org/en/calls-for-input/calls-input/report-older-persons-deprived-their-liberty
Mental Health Act 1983
s. 120 General protection of relevant patients (emphasis added below)
(1) The regulatory authority must keep under review and, where appropriate, investigate the exercise of the powers and the discharge of the duties conferred or imposed by this Act so far as relating to the detention of patients or their reception into guardianship or to relevant patients.
(2) Relevant patients are—
(a)patients liable to be detained under this Act,
(b)community patients, and
(c)patients subject to guardianship.
(3) The regulatory authority must make arrangements for persons authorised by it to visit and interview relevant patients in private—
(a)in the case of relevant patients detained under this Act, in the place where they are detained, and
(b)in the case of other relevant patients, in hospitals and regulated establishments and, if access is granted, other places.
(4) The regulatory authority must also make arrangements for persons authorised by it to investigate any complaint as to the exercise of the powers or the discharge of the duties conferred or imposed by this Act in respect of a patient who is or has been detained under this Act or who is or has been a relevant patient.
(5) The arrangements made under subsection (4)—
(a)may exclude matters from investigation in specified circumstances, and
(b)do not require any person exercising functions under the arrangements to undertake or continue with any investigation where the person does not consider it appropriate to do so.
(6) Where any such complaint as is mentioned in subsection (4) is made by a Member of Parliament or a member of the National Assembly for Wales, the results of the investigation must be reported to the Member of Parliament or member of the Assembly.
(7) For the purposes of a review or investigation under subsection (1) or the exercise of functions under arrangements made under this section, a person authorised by the regulatory authority may at any reasonable time—
(a)visit and interview in private any patient in a hospital or regulated establishment,
(b)if the authorised person is a registered medical practitioner or approved clinician, examine the patient in private there, and
(c)require the production of and inspect any records relating to the detention or treatment of any person who is or has been detained under this Act or who is or has been a community patient or a patient subject to guardianship.
(8) The regulatory authority may make provision for the payment of remuneration, allowances, pensions, or gratuities to or in respect of persons exercising functions in relation to any review or investigation for which it is responsible under subsection (1) or functions under arrangements made by it under this section.
(9) In this section “regulated establishment” means—
(a)an establishment in respect of which a person is registered under Part 2 of the Care Standards Act 2000, F2...
(b)premises used for the carrying on of a regulated activity (within the meaning of Part 1 of the Health and Social Care Act 2008) in respect of which a person is registered under Chapter 2 of that Part [F3, or
(c)premises at which—
(i)a care home service,
(ii)a secure accommodation service, or
(iii)a residential family centre service,
within the meaning of the Regulation and Inspection of Social Care (Wales) Act 2016 is provided by a person registered under Part 1 of that Act.]]
Mental Health Act 1983 Code of Practice
Information about the CQC
4.25 Patients must be informed about the role of the CQC and of their right to meet visitors appointed by the CQC in private. Patients should be told when the CQC is to visit their hospital and be reminded of the CQC’s role.
4.26 Patients may make a complaint to the CQC and must be informed of the process for this. Support should be made available to patients to do this, if required (see paragraphs 4.53 – 4.68)
Information about complaints or if the Act is not being applied appropriately
4.53 A patient and persons supporting them (e.g., a patient’s nearest relative, family, carer, advocate, or legal representative), especially a patient lacking capacity, must be supported to make a complaint if they think the safeguards of the Act are not being appropriately applied or they have concerns about the care and treatment being provided.
4.54 Staff should be aware that it can be particularly difficult for patients and those supporting them to take forward complaints due to their mental ill-health and fear that this may impact on the quality of care and support they receive. All efforts must be made to support patients (especially those lacking capacity) and those supporting them to make complaints without any negative impact on the quality of care and support provided.
4.55 It is usually best for initial concerns to be raised locally. All providers should have clear complaints policies and procedures. Patients and those supporting them (including nearest relatives, family, carers, and advocates) must be given information about how to make a complaint to the hospital. The information must be in formats that these individuals can understand.
4.56 Information about how to make a complaint to the service commissioner, CQC or Parliamentary and Health Ombudsmen should also be readily available.
4.57 CQC is likely to ask providers to detail the information provided to patients and those supporting them about how to make a complaint (see contact details below).
4.58 Patients can complain to the service provider, commissioner, local authority, CQC or the police depending upon what the complaint is about. The NHS complaints procedure sets out how complaints should be dealt with about NHS and local authority-funded services whilst the Act gives specific powers to make complaints about care under the Act and specifies certain criminal offences.
4.59 If the complaint is about service provision, a complaint may be made to the service provider or the commissioner. If not satisfied with the outcome, the complaint may be taken to the Parliamentary and Health Service Ombudsman.4
4.60 If the complaint is about care and treatment under the Act, the complaint can be made to the service provider, commissioner, or CQC. If not satisfied with the outcome, the complaint may be taken to the Parliamentary and Health Service Ombudsman or ultimately the Secretary of State for Health or Justice, as appropriate. This guidance focuses on care under the Act. Chapter 12 gives guidance on the applications that may be made to the Tribunal. Information for patients, nearest relatives, carers, and others 4 4 The NHS Complaints Process for NHS commissioners, NHS-funded providers and local authorities is established by The Local Authority Social Services and National Health Service Complaints (England) Regulations. 2009. http://www.legislation.gov.uk/uksi/2009/309/pdfs/uksi_20090309_en.pdf 47
4.61 Every service provider should make reasonable efforts to raise awareness and understanding of the Act and Code among patients and carers and, particularly in relation to their rights under the Act.
4.62 Providers should ensure staff are trained appropriately to support patients who have additional needs to access information about complaints and resolution procedures. Every effort should be made to place copies of the Code in areas accessible to patients, and as appropriate their visitors.
4.63 Information about how to make a complaint to the service commissioner, the CQC or Parliamentary and Health Ombudsmen should also be readily available. This should be displayed on all mental health wards. Complaining to the commissioner may be the right option if the individual is not comfortable complaining directly to the service provider or, if the complaint is under the Act, directly to the CQC. Information should include specific information about the right of detained patients to complain to the CQC (contact details below), and the local support available if they wish to raise a concern or complaint. This should be available in alternative formats, e.g., easy read or Braille. The information should be explained to all patients, including those who lack capacity to make decisions about complaints, have problems communicating (e.g., they do not read or write), or whose first language is not English.
4.64 A patient and persons supporting them (e.g., a patient’s nearest relative, carer, advocate, or legal representative), especially a patient lacking capacity, should be supported to make a complaint if they think the safeguards of the Act are not being appropriately applied or they have concerns about the care and treatment being provided.
4.65 Staff should be aware that it can be particularly difficult for patients to take forward complaints due to their mental ill-health and fear that this may impact on the quality of care and support they receive. All efforts should be made to support patients (especially those lacking capacity), and those supporting them, to make complaints without any negative impact on the quality of care and support provided.
4.66 A qualifying patient (see paragraphs 6.8 – 6.11) may request the support of an independent mental health advocate (IMHA) in progressing a complaint. IMHAs are specialist advocates who are trained specifically to work within the framework of the Act and can enable patients to participate in decision-making. Patients should be encouraged to provide feedback on their general experiences, locally and to national bodies.
4.67 CQC is likely to ask providers to detail the information provided to patients and those supporting them about how to make a complaint (see contact details below).
4.68 Further information on what to do if you think the Act is not being appropriately applied, including additional advice if you are a health and social care professional, is available in the introduction at paragraphs XXVIII – XXX
5/04/2022
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