The Mental Health Act (MHA) Code of Practice is not being used as it was intended due to a lack of awareness and understanding of the statutory guidance amongst providers and staff.

A report published today by CQC found variation in providers’ understanding of the MHA Code of Practice and how it should be applied. This was the result of a review of how well the guidance has been implemented and used across mental health services since it was last updated in 2015.

The Code of Practice helps professionals and those working in services to interpret and apply the legislation to decision making in day-to day practice and to provide safeguards for involving and protecting people in mental health services.

The Code of Practice also includes guiding principles that should always be considered when decisions are being made about care, support or treatment in services that detain patients under the MHA.

However, CQC found during its review that providers lack understanding about how to promote, apply and report on the guiding principles as set out in the Code of Practice. This lends support to the recommendation by the Independent Mental Health Act Review that the guiding principles are moved into the MHA and have statutory force.

Providers should also do more to support staff to empower and involve patients in their care. For example, some ward staff did not always know when a referral to an Independent Mental Health Advocate should be made.

The review also highlights issues with section 140 of the Mental Health Act which is designed to ensure the safe and appropriate admission of people in need of urgent care in their local area. This is part of the duties for commissioners to share clear guidance on where beds for people subject to the MHA, or in need of urgent admission, with local authorities, police and providers. The Code of Practice expects local leadership teams to work together to discuss the way this is working for patients and how to improve any problems with local implementation.

Feedback from stakeholders, including mental health providers and services user representatives, identified that low awareness of the Code of Practice and limited support to understand how it applies to them, were barriers to the guidance being used by patients, families and carers to challenge poor practice or raise concerns and complaints.

The review found some examples of good practice in implementing the Code of Practice but CQC heard that its size and breadth made it difficult to plan and deliver effective training for staff and professionals. Some providers had not yet updated their training to reflect the 2015 Code of Practice. The quality of governance and monitoring of the MHA and the Code of Practice vary nationally.

The Department of Health and Social Care (DHSC) requested that CQC undertake this evaluation of how the Code of Practice is being used. CQC reviewed data from its MHA monitoring visits to mental health services and interviewed patients and providers in addition to engaging with commissioners, providers, police, social workers and local authority staff. It also looked at the impact of on people’s experiences of detention, care and treatment.

Based on its findings, and as part of their response to the independent review of the MHA, CQC recommends that DHSC:

Develops standardised resources, support and training for patients, carers and staff so that they understand how the Code applies to individuals, practice, services and local partnerships.

so that they understand how the Code applies to individuals, practice, services and local partnerships. Promoting the use of the guiding principles to improve practice and enable meaningful engagement with families and carers . The guiding principles need to be recognised as a support tool for human-rights based approaches by staff and services.

. The guiding principles need to be recognised as a support tool for human-rights based approaches by staff and services. Making sure that the Code of Practice gives clear and consistent guidance on providers’ governance arrangements. This includes guidance on ensuring that how the MHA and Code are being applied is reported on at senior leadership level.

This includes guidance on ensuring that how the MHA and Code are being applied is reported on at senior leadership level. Improving the usability and access to the Code of Practice, taking into account the way the Code is intended to be used in practical situations between patients and their care team. This should include considering how to make the Code digitally accessible to patients, carers and clinicians. For example, a search function with accessible links to other relevant guidance would enable professionals to find relevant guidance quickly to support their day-to-day work.

Dr Paul Lelliott, Deputy Chief Inspector of Hospitals (lead for mental health), at the Care Quality Commission, said:

“Use of the MHA to detain people in mental health services is more common than when the Code of Practice was first created 26 years ago. That makes it even more important that the Code is clear, accessible and supports the legal safeguards that protect people’s human rights and autonomy.

“From our review of how well the Code is being used in practice, we found that many providers lack understanding about how to promote, apply and report on the Code’s guiding principles. As a result, they were not always being used by services to empower and involve people in decisions being made about their care. We also found limited awareness and understanding of the Code amongst patients and their families and carers.

“To improve this, we recommend that the Department for Health and Social Care develop standardised resources, support and training for patients, carers and staff to help them understand the Code and how and when it should be applied.

“We’d also like to see more work undertaken to raise awareness of the Code’s guiding principles and to improve its usability. This might include using digital technology to make the content of the Code easier to access by patients, carers and clinicians.”

This report highlights the key areas of improvement and learning from the current Code of Practice. It is based on an evaluation carried out while the MHA independent review was under way. Any changes made to either legislation, policy or practice will require a new Code of Practice.

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