Written evidence from Care Quality Commission (CQC) (HCS0065)

 

 

 

Introduction

  1. Following Care Quality Commission’s (CQC) oral evidence to your inquiry on ‘Protecting Human Rights in Care Settings’ on 23 March 2022, we are responding to the committee’s request for further information about how we oversee Mental Health Act (MHA) complaints. In this submission, we have provided information on:

 

About CQC

  1. The CQC is the independent regulator of health and social care in England. Our purpose is to ensure health and social care services provide people with safe, effective, compassionate, high-quality care and we encourage services to improve.

 

  1. We inspect services to make sure they are providing care that is safe, effective, caring, responsive and well-led. We publish what we find, including quality ratings, so that people can understand the quality of care of a particular service and can choose the right one for them. We also share good practice with providers and take enforcement action where necessary, to protect people from poor care and hold registered providers to account for failures in services.

 

Background

  1. The MHA (1983) introduced the statutory duty for CQC, (formerly the duty of the Mental Health Act Commission, before being merged into the new CQC from 1 April 2009) to review any complaints from people subject to the Act, or relating to issues experienced during a previous detention, and to exercise our power to investigate.

 

  1. This duty is set out in Section 120 of the Act, which includes CQC’s role in visiting hospitals, meeting with patients in private and carrying out investigations relating to the exercise and discharge of duties under the MHA.

 

  1. Beyond the duty and powers described in the Act, there are no additional statutory requirements, regulations or guidance relating to how CQC should respond to MHA complaints. Therefore, it has always been at our discretion to decide how to operationalise our role.


  1. In 1998, case law (R v MHAC Ex p Smith) provided additional clarity on the jurisdiction of the role of CQC. This case established that we must respond to complaints about ‘rights and duties that flow from the Act or by necessary implication from the patient’s detention’. This means we must look at issues about the Act (e.g. due process followed to detain, section 17 leave etc.) but also at matters arising from detention under the Act (experience of care, issues with assessments). Typically, we use the broad scope and guidance in the Code of Practice to assess what should be considered as a complaint.

 

Our process for responding to MHA complaints

  1. Complaints about the MHA mostly come via our national contact centre. Our web page for complaints about the MHA states: “If you are unhappy with the use of powers or how duties have been carried out under the Mental Health Act, you can make a complaint to us and we will investigate.”1

 

  1. The range of issues individuals raise with us can be highly varied, and includes disagreements regarding the decision to detain, assisting with discharge from detention or disagreements around diagnosis. Understandably, there are cases where individuals have expressed a desire not to be detained or object to being treated with medication against their will. In certain circumstances the issues raised can be as a result of a patient’s mental illness at that time.

 

  1. We are only able to take forward those complaints that are within the scope of our powers, as explained below in Stage 1.

 

  1. We respond to MHA complaints using the following process:

 

 

 

 



 

Stage 3 - Consideration of possible CQC investigation: If the person making the complaint contacts us to say they are not satisfied with the outcome, the MHAC team will review the information it has received from the provider about its decision. They will then determine if the complaint is suitable to be investigated by Mental Health Act Reviewer (MHAR).

 

 

 

 

Upholding complaints

  1. If we uphold a complaint, we have a range of options available to us that include asking the provider for an apology, to remedial action recommending financial redress for costs or direct impact on the individual making the complaint.

 

  1. As one example, we describe the action we took in response to investigating a complaint about aftercare provision in our annual report on the Mental Health


Act.2 This included a recommendation that the individual concerned be reimbursed the money they had spent on providing for their own aftercare, as services had failed to meet the duties towards them.

 

  1. Other outcomes our complaints processes have produced include: changes to providers’ policies; focused inspection team visits to mental health settings to look at issues raised by complaints; and recommendations for providers around training of staff in relation to the use of MHA.

 

The complaints we receive

  1. Our principal role in responding to MHA complaints is to hold providers to account about how they investigate the matters raised by individuals escalating concerns to us, and to monitor all the complaints in the system relating to MHA. This includes ensuring that providers respond in accordance with their own policies and procedures; that they acknowledge the issues someone has raised; keep them informed about how they are responding to them; inform them if their response is going to be late; and provide the person concerned and CQC with a clear decision about the outcome of the investigation.

 

  1. The CQC complaints team and national contact center received 2,280 complaints and concerns about the MHA in 2021/22. This compares to 2,231 in 2019/20 and an average of 2,385 over the past five years. In 2020/21 ninety- one percent of contacts were by telephone and 9% were by email, or via our website. This is consistent with how people contacted us regarding MHA complaints and concerns in 2019/20.

 

  1. Half the contacts opened and resolved in 2020/21 were resolved within a month and three quarters were resolved within three months. 4% of contacts

(62) took more than six months before they were closed. In 2019/20 5% of the contacts opened and resolved were resolved within a month, 73% within three months and 9% took more than six months before they were resolved.

 

  1. The most common issue raised to us in 2020/21 concerned the medical treatment patients had received under the Act (21%). This was down from 29% who raised this issue to us in 2019/2020. Other commonly raised issues in 2020/2021 included those relating to dignity, privacy and safety (20%), respect and dignity (15%) and provision of information (12%). These were also the most commonly raised issues in 2019/20.

 

  1. The committee asked for data relating to the steps we took in relation to each of 2,280 complaints described, to help better understand why that resulted in seven investigations. We do not hold the granular data about the individual steps taken in the 2, 280 cases, but, as set out above, we do employ a robust, staged process to hold providers fully to account in how they respond to every single complaint we pass to them. For further information on what action we took in relation to the seven investigations, please see paragraph 23.

 

 


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  1. Regarding the complaints we receive, a significant proportion are from patients who do not wish or did not wish to have been detained under the MHA – in many of these cases we do find that there is evidence to substantiate why they are detained. Other complaints raised may not warrant a full investigation by a MHAR, either because they do not relate to our role under MHA or because we are satisfied by the provider’s response as being compliant with the MHA.

 

Our investigations of the MHA complaints

  1. If someone tells us that they are unhappy with the response provided by the provider about their complaint, we may decide to undertake an investigation ourselves. Situations where we will do so include if it appears to us the provider has not looked into the complaint in accordance with their own processes, or their investigation raises other concerns, for example about staff training or competence. The majority of MHA complaints that progress to a CQC investigation are from patients who are no longer an inpatient. Many of the requests for further investigation we receive are concerns regarding disagreements with the provider about the need for detention or clinical diagnosis.

 

  1. Our process for investigating MHA complaints is as follows:

 

 

 

 

 

 


they may need to consider with regard to the CQC’s Health and Social Care Act inspection and enforcement role. They would also seek advice from other CQC teams such as policy/legal dependent on the issues.

 

 

 

 

 

 

  1. In 2020/21 we opened seven investigations about complaints that had not been satisfactorily resolved through local processes. This compares with 14 investigations we undertook in 2019/20. We anticipate the number of our investigations will be higher in 2021/22 than the previous two years and we will report on these numbers in our MHA annual report to Parliament. It is worthwhile reiterating, that we do get many requests from individuals to investigate issues that we are unable to take forward.

 

  1. In respect of the seven investigations we conducted in 2020/21, their outcomes included our recommendations for providers to:

 

 

 

 

 


Our response to MHA complaints during the pandemic

  1. In our previous written submission to the committee we set out the changes we needed to make to our regulatory activity because of the pandemic. In terms of our MHA work, we suspended our routine on-site visits to carry out MHA monitoring reviews, to avoid spreading the infection between services.

 

  1. From the beginning of the pandemic we changed our MHA monitoring visit methodology. From March 2020, we replaced site visits with remote MHA monitoring, to monitor the use of the MHA and the experience of patients despite not being able to visit wards in person. We did so through video calls to patients, carers, advocates and many staff. Our onsite MHA visits started again in July 2021.

 

  1. We wrote to registered providers on 7 April 2020 to explain our interim methodology during the pandemic.

 

  1. Under our modified way of working, we introduced a fast-track response system (within 2-5 days) from an MHA Reviewer for all inpatient callers. This meant we were able to provide fast resolution in most cases to emerging pandemic related issues for people detained across the country. This ran between April and December 2020 but had to be stopped once MHARs returned to more frequent monitoring activities

 

  1. To be able to offer this, we had to pause any response to community patients to free up the resource in the MHAC team. Other Ombudsmen ceased accepting any complaints during the pandemic, but we believed the increased risk of restriction and potential impact on human rights meant we had to increase our response and support for people in services.

 

  1. We switched our focus to current inpatient complaints because of the increased vulnerability and isolation of detained patients during the pandemic, owing to higher levels of restrictions on their movements and the fact that ward visits were often not possible. Also, many inpatients ceased to have access to onsite support from Independent Mental Health Advocates as fewer attended in person because of concerns about COVID-19 infections and the message from the Government for workers to stay at home unless they were “key workers”.

 

  1. In our annual report to Parliament on the Mental Health Act in 2019/20, we highlighted the challenges of monitoring ‘remotely’, including that our Reviewers were:

 

“limited in what they can see and hear of the ward environment and [that the] culture of care and contact with interviewees is largely facilitated by staff. This could compromise the anonymity of interviewees, and even raises the possibility of a certain amount of selection of patients we encountered.”3

 

 


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  1. As part of the remote monitoring reviews we prioritised speaking with patients, carers, Independent Mental Health Advocates in order to try to understand the patient experience without visiting the wards. Detained patients can raise any concerns or issues with our MHA reviewers directly when they meet them on MHA monitoring visits, or when they spoke to them as part of our remote monitoring reviews. MHA reviewers will either raise the concerns for immediate/prompt resolution with the clinical team or will raise the concerns on behalf of the patient in our visit reports. Providers are required to respond to the concerns we raise in our visit reports.

 

  1. In December 2020 our response to MHA complaints returned to a routine service. From July 2021 we adopted new methods for our MHA Visits to support site visiting across the country, with some activities still possible via remote channels, such as follow up calls to Independent Mental Health Advocates and family members/carers.

 

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13/04/2022