December 2021 saw commencement of the Mental Health Units (Use of Force) Act 2018 to better protect patients in mental health settings. Final statutory guidance was published following public consultation.
In the Ministerial Foreword Gillian Keegan, Minister of State for Care and Mental Health, states that this is a "significant moment towards improving the care and treatment of the most vulnerable patients in our care".
The Act, also known as Seni’s Law, is named after Olaseni Lewis, who died after being disproportionally restrained while a voluntary inpatient in a mental health unit. This legislation aims to set out the measures that are needed to prevent the inappropriate use of force and ensure accountability and transparency about the use of force in mental health units.
The new provisions under the Mental Health Units (Use of Force) Act 2018 came into force on 31 March 2022. The reference to "Use of force" includes physical, mechanical or chemical restraint of a patient, or the isolation of a patient (which includes seclusion and segregation).
The guidance is intended for use by NHS hospitals and independent hospitals (providing NHS-funded care) in England that are providing care and treatment to patients with a mental disorder. The Act also applies whether a patient is detained under the Mental Health Act 1983 or an informal or voluntary patient.
It covers three areas:
• how they should meet the legal obligations placed on them by the Act;
• best practice advice; and
• the obligations on police officers from Wales when in mental health units in England
New provisions detailed in the guidance cover:
• Section 2: mental health service providers operating a mental health unit are under a duty to appoint a 'responsible person' who will be accountable for ensuring the requirements in the Act are carried out
• Section 3: the responsible person for each mental health unit must publish a policy regarding the use of force by staff who work in that unit. The written policy will set out the steps that the unit is taking to reduce (and minimise) the use of force by staff who work in the unit
• Section 4: the responsible person for each mental health unit must publish information for patients about their rights in relation to the use of force by staff who work in that unit
• Section 5: the responsible person for each mental health unit must ensure staff receive appropriate training in the use of force. The statutory guidance sets out what that training should cover
• Section 6: the responsible person for each mental health unit must keep records of any use of force on a patient by staff who work in that unit, which includes demographic data across the protected characteristics in the Equality Act 2010
• Section 7: the Secretary of State for Health and Social Care must ensure that, at the end of each year, statistics are published regarding the use of force by staff, using the relevant information recorded under section 6
• Section 8: the Secretary of State for Health and Social Care must conduct an annual review of any reports made under paragraph 7 of schedule 5 to the Coroners and justice Act 2009, and may conduct a review of any other findings or determinations made relating to the death of a patient as a result of the use of force in a mental health unit. The Secretary of State for Health and Social Care must then publish a report that includes conclusions arising from the review
• Section 9: if a patient dies or suffers serious injury in a mental health unit, the responsible person must have regard to any relevant guidance relating to investigations of deaths or serious injuries
• Section 10: explains that the responsible person may delegate their functions where appropriate to do so
• Section 11: the Secretary of State for Health and Social Care must publish guidance that sets out in more detail how to implement the requirements of the Act
• Section 12: if a police officer is going into a mental health unit on duty to assist staff who work in that unit, the police officer must wear and operate a body camera at all times when reasonably practicable
As this is statutory guidance, there should be clear and cogent documented reasons for departing from it as courts will scrutinise such reasons to ensure that there is a sufficiently convincing justification in the circumstances. Organisations or trusts should have a process in place to ensure that the reasons for any departures from the guidance are clearly documented.
Healthcare professionals working in this field will be interested to read the Information Commissioner’s Office recently published new video surveillance guidance for organisations in the public and private sectors.
The guidance is an updated resource that addresses new applications of video surveillance technologies, including Body Worn Video with a detailed description of how the UK GDPR and DPA 2018 applies. You can read ICO’s guidance here and specifically the section that covers Body Worn Video here. It will therefore be important to ensure that the information given to patients about the use of body worn cameras by police officers is compliant with ICO guidance.
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