Supplementary written evidence submitted by the Care Quality Commission (CQC) (MHB0109)
Thank you for inviting me to give oral evidence to the Joint Committee on the Draft Mental Health Bill on 22 November 2022.
During the session there were a number of areas where I agreed to write back to the Committee to provide some further evidence and points of clarity.
Second Opinion Appointed Doctors (SOADs)
Current situation
We have 120 active SOADs and we receive an average of 16,200 second opinion requests per year. We currently have around 1100 cases nationally awaiting a SOAD appointment and 60% of these are 20 days or older. This number reduced dramatically during the COVID pandemic as SOADs had increased availability to take on more cases but has since increased to current levels. We have still been able to meet our internal targets[1] for SOAD appointments 69% of the time in 2022 but we require more SOADs to effectively meet this ongoing demand and to prepare for the future increases due to MHA reforms.
The SOAD population is aging with SOADs inevitably leaving the workforce each year. Currently 57% of SOADs are aged 60 or over. 43% are retired, 21% are employed part-time / self-employed/ other. 36% are employed full time in other roles in NHS or independent sector. Experienced, retired SOADs will likely have greater availability to give to the role and will require multiple new SOADs to be recruited to replace their activity when they leave.
The criteria to be considered for the SOAD role are as follows:
Consultant Psychiatrists who act as SOADs are not employed in that role. SOADs are engaged with CQC on a fee per activity basis and they fit the SOAD role around their other work/life commitments.
Until this year the number of active SOADs has been decreasing by 16% year on year. Recruitment of new SOADs was adversely impacted by the covid-19 pandemic and we are still recovering from this. In 2022 to date 27 new SOADs have been recruited.
We are acutely aware of the shortage of Consultant Psychiatrists and competition from other roles. We have compared market rates for other work that Consultant Psychiatrists could be involved in, which shows SOAD work is not competitively remunerated. There was a nominal increase in the SOAD fee in 2017 but nothing since then. In order to bring the fees in line with similar work (e.g. tribunals), our modelling has included a 20% increase in fee by 2026/27 and then an annual 10% increase for the first six years of implementation of MHA reform proposals. We are unable to increase fees in this way without equivalent increases to our GIA from DHSC, on which we are dependent for the funding of SOADs.
The future
Our workforce modelling shows we need around 100 more SOADs now, with that increasing to over 400 (433) by 2027/28. By 2041/42 almost 500 SOADs will be needed to deliver the demand outlined by DHSC modelling. This equates to c.£1.1m additional Grant in Aid (GiA) funding annually from 2023/24 - 2026/27 and then an additional £7m per year from the implementation of MHA reform.
In relation to the responsibility for planning for workforce provision, the Department of Health and Social Care workforce working group are developing workforce models and those plans have included how long it will take to scale up the workforce to meet the ambitions set out in the draft bill. The successful implementation of these proposals will rely on the delivery of plans to invest and increase the workforce of psychiatrists. We will continue to engage with the Department on this as we will ultimately be the organisation that will recruit to and oversee the work of an expanded SOAD service.
CQC recommendation
It is our view that in order to meet the current and expected demand, and also to allow fully for patient choice, there needs to be provision for second opinions to be carried out remotely where this is appropriate in the individual circumstances and not solely for cases involving urgent ECT as is currently proposed.
Use of Section 62
As stated above, we currently have around 1100 cases nationally awaiting a SOAD appointment and 60% of these are 20 days or older. We do not have data on the exact number of these cases where treatment is being given under the ‘urgent’ provisions of MHA section 62 whilst SOAD authority is awaited, but it is likely that this will be the case for the majority: even if urgent treatment powers had not been used prior to the request for a SOAD, it is likely to be used in many cases where there is any subsequent delay in arranging the review.
We are made aware of section 62 powers in use at the time a request for a second opinion is submitted. In the period 2021/22, 7,175 (60)% of 12,005 second opinions carried out indicated the use of section 62 powers at the point the second opinion request was received. The use of section 62 powers at this time could reflect sudden changes to treatment plans, or a failure to make requests in good time before a SOAD would be needed (i.e. at the end of the three month period for medication requests), and not necessarily the stresses on the SOAD system itself.
Complaints
We agree with the PHSO recommendation to clarify, streamline and introduce the mandatory signposting under s. 132 of the MHA which places a legal duty on hospitals to provide information on the legal rights and position of patients subject to the powers of the MHA. Under s.132 as currently in force, the role of CQC in monitoring the MHA and considering complaints is already something services have a legal duty to provide information to patients and, if patients agree and it is practicable, nearest relatives. The committee could consider tweaking s.132 duties to be more specific over what services must tell patients and relatives about the complaints role.
We are aware of the JCHR recommendation to transfer our duty to investigate complaints to the Ombudsman. There is a risk that transferring our statutory duty to review and investigate complaints under the MHA to another body would not remove the confusion as to which body people should direct complaints to. This is because under Section 120 of the MHA, we would still have the duty to monitor the exercise of powers under the MHA and would therefore have to respond to issues raised by patients. Additionally, as a member of the UK’s National Preventive Mechanism[2], we also have a duty to respond to concerns received about alleged torture and ill-treatment in places of detention. Our power to investigate MHA complaints complements our monitoring and regulatory role, as we use the intelligence from MHA complaints to inform wider work and to uphold the rights of people subject to the MHA. Transferring the complaints duty to another body could create duplication of work.
We are supportive of any proposal that would benefit patients and make the complaints process under the Mental Health Act more streamlined and responsive. We are committed to the modernisation and digitalisation of the complaints handling process. With additional investment and support from DHSC, we would be able to undertake a proper quality improvement review of our systems and processes in order to enhance the level of support we can provide, as well as improve the timeliness of responses to people who have made complaints.
We recognise that there is scope for improvement in the handling of complaints and we will be working closely with the Ombudsman and other organisations to update our information sharing agreements.
Expansion of s.120 to include Integrated Care Boards in CQC monitoring powers
Our specific request of government is that it include ICBs in the bodies listed at MHA s.120B and 120C. These sections of the MHA require bodies listed (currently hospitals and local authorities) to provide us with information that we reasonably require, and an action statement on any issue we raise from our monitoring or from investigation of a complaint. At present, we may engage with ICBs on a voluntary basis, but are at potential risk of our statutory functions – such as the investigation of a complaint – being hampered by any ICB’s failure to respond to us.
We think this is particularly important because commissioning bodies have duties under the MHA (for example, under MHA s.140) to identify (and by implication provide) hospital beds for urgent admissions and age-appropriate beds. The Committee also heard from ADASS that it recommends the Bill effect legal responsibilities upon ICBs to collect, analyse and use MHA data for planning provision, in particular to address racial disparities in the use of the MHA. We support this proposal and suggest that other commissioning measures could be considered for inclusion at MHA s.140, for example, provision of culturally appropriate advocacy. The extension could also continue to ensure Independent Care Education Treatment Review (ICETR) recommendations are followed up with commissioners.
Extending Section 140 and/or Section 117
The MHA currently places some positive duties of service provision on commissioners, which could be extended to address the policy aims of the Bill.
For example, the duty under MHA s.140 could be extended to provide specific community services to such population groups who are at risk of inappropriate hospital detention. As stated above, this could include measures such as the provision of culturally appropriate advocacy in an attempt to address the overrepresentation of some Black and minority ethnic groups in detention numbers. It could also be used to establish a duty to provide community services designed to avoid inappropriate detention in hospital for people with learning disability and autistic people.designed to avoid inappropriate detention in hospital for people with learning disability and autistic people.
Section 117 of the MHA places a joint duty upon ICBs and local authorities to provide aftercare to some patients discharged from detention in hospital under the MHA. This too could be extended to underpin the need for commissioning effective and responsive community services that support patients and avoid readmission to hospital.
CQC support the policy aims of the Bill but we would emphasise that the delivery of its ambitions rests upon workforce and investment. Amending the legislation alone is unlikely to have any significant effect or, in particular, reduce longstanding unacceptable disparities faced by Black and other minority ethnic groups.
I hope this provides a helpful context to the points raised in the Committee and will help feed into the Committee’s final report.
Yours sincerely
Jemima Burnage
Deputy Director of Mental Health
Care Quality Commission
5 December 2022
[1] Our internal aspirational targets are based on the treatments proposed and the statutory requirements or clinical urgency as follows: second opinions for ECT where section 62 (s62) urgent powers are in use within 3 working days (wdays), ECT where s62 powers not is use – 5 wdays, maintenance ECT – 10 wdays, medicine – 20 wdays, second opinions for patients subject to Community Treatment Orders – 30 wdays.