Supplementary written evidence submitted by Professor Judy Laing, Human Rights Implementation Centre (HRIC), University of Bristol Law School (MHB0108)

The Committee’s oral evidence session on Tuesday 15th November 2022 touched briefly on the role of the Care Quality Commission (CQC) in monitoring the Mental Health Act and responding to complaints from patients who are detained under the Act. Please find below additional written evidence related to this issue.[1]

Q. Could there be greater powers for the Care Quality Commission (or anyone else) to monitor and regulate the Mental Health Act?

• CQC and the MHA

The Care Quality Commission (CQC) is an independent body (‘regulatory authority’) which has a statutory duty under the Mental Health Act (MHA) to ‘keep under review’ the operation of the MHA (s. 120 (1)). This includes a duty to ‘visit and interview’ patients ‘in private’ (s. 120(3) MHA). Additionally, it has a statutory power to investigate any complaint (s. 120(4) MHA).

This is a vital oversight and complaints function and the CQC is required to produce an annual report that is laid before parliament on its MHA monitoring findings in the preceding year. This MHA monitoring role is supplemental and complementary to the CQC’s role as an independent regulator of health and social care in England. It has teeth and bite as a regulator as it can impose sanctions on providers that are not meeting the fundamental care standards. Notably the CQC has recently imposed a penalty on a health care provider (University Hospitals Birmingham NHS Foundation Trust) for failures relating to consent and the Mental Capacity Act 2005 in contravention of Regulation 11 of the Health and Social Care Act 2008 (Regulated Activities) Regulations 2014, which is intended to make sure that all people using the service have given lawful consent before any care or treatment is provided. Regulation 11 also states if someone is 16 or over and is unable to give consent because they lack capacity, the registered person must act in accordance with the Mental Capacity Act 2005.

• CQC as a member of the UK National Preventive Mechanism

Of particular significance is that the CQC has an added monitoring obligation for people who are deprived of their liberty as a member of the UK National Preventive Mechanism. The CQC (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.

All UK NPM members carry out an annual self-assessment of OPCAT compliance and the NPM Secretariat produces a collective NPM annual report.

The United Nations Subcommittee on the Prevention of Torture (SPT) provides guidance to NPMs on the concept of prevention of ill treatment to assist with their mandate, 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. The CQC’s MHA current monitoring methodology seeks to reflect this preventive approach and the CQC also aims to promote a human rights-based approach to regulation.

• SPT report on visit to UK

The UN SPT carried out its first country visit to the UK in September 2019 and recommended greater visibility for UK NPM bodies and their 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 their ‘business as usual’ function and it noted that the preventive function is not always prioritised by NPM members in their work (notably the CQC and Ofsted are both cited as examples of this NPM work not being prioritised in the report - see para 80).

SPT also recommended that:

• There should be references to OPCAT in each NPM member’s own statutory functions.
• Budgetary cuts/constraints also impact on NPM functions – need earmarked funds.
• Also need greater functional independence from government.

SPT stated that the UK NPM must reinforce a preventive focus 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. The CQC does attempt to do this already through themed reports and publishing guidance to providers e.g., a Closed Cultures report in 2020 identified that some services are higher risk and especially during the pandemic, as there were no visitors and acute staff/finance pressures.

• CQC – strengthening NPM visibility and complaint functions

The NPM function adds a further layer to the CQC’s routine health and social care regulatory work related to its MHA and Deprivation of Liberty Safeguards[2] oversight. However, as the SPT noted, this NPM role is not as prominent or widely known/publicised as its role as a health and social care regulator.  The NPM function has been explicitly noted by the CQC in an appendix to recent Mental Health Act Monitoring reports, but there is nothing obvious /prominently displayed on the CQC’s website about this additional component of the regulator’s work. It has, hitherto, had very little visibility, nor has the MHA complaint function, which is not widely promoted either.

Information on the CQC website about complaints on the MHA is not prominent and the website indicates that patients are encouraged to phone the CQC to complain, but many detained patients may not be able to access a phone/internet to initiate contact, or might feel inhibited from doing so if they are on a ward and within earshot of staff/other patients. Moreover, they might not be clear about the grounds on which they can complain to the CQC. There is a complaints policy on the website (also provided in easy to read) format, which indicates the types of complaints the CQC can deal with. However, this is at the discretion of the CQC, as it has the power to decide that a complaint falls outside its remit and is best handled by another body e.g., the Parliamentary and Health Service Ombudsman. The discretionary nature of the CQC’s power to investigate complaints weakens this protective function. There are currently various avenues open to patients to complain about their mental health care and treatment as other witnesses have pointed out in their written evidence, and these processes may be confusing to navigate and act as a disincentive to detained patients to bring a complaint. Consideration could therefore be given to ways of strengthening and streamlining the complaints process, perhaps by mandating the investigation of complaints received by the CQC, and clarifying its role and remit, as well as those of other complaint bodies. 

Consideration could also be given to whether there is scope to strengthen the CQC’s MHA monitoring more broadly in line with the requirements of OPCAT.[3] As recommended by the UN SPT, this could be achieved by earmarking funds for the NPM function within the organisation, as well as ensuring operational independence from government. The SPT guidance to NPMs also recommends that the ‘NPM should ensure that it has the capacity to and does engage in a meaningful process of dialogue with the State concerning the implementation of its recommendations’. With this in mind, the impact of the CQC’s NPM monitoring functions could be strengthened by imposing a duty on the State to respond to annual report findings and recommendations.

The question refers to whether anyone else could have greater powers to monitor the MHA. It would be difficult to give any MHA inspection/monitoring powers to another body as there may be a risk of duplication or issues falling through gaps, and it is not clear who would be best/better placed to discharge this duty. Unless the government would consider re-establishing a distinct and specialist body, such as a MHA Commission, to proactively monitor the MHA and take responsibility for responding to complaints (as existed prior to the CQC assuming the MHA regulatory authority duty in 2012, following the 2010 government of the day’s review of Arm’s Length Bodies).

30 November 2022