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30th June 2020

Mental Health and COVID-19: The risks to human rights

Extra Risks for People with Mental Health Problems

The Care Quality Commission (CQC) has highlighted here that more complaints are coming its way from people who are subject to restrictions imposed because of their mental health problems, and that this includes some younger men and women living with learning disabilities as well as older people with dementia. Some people who receive services are further restricted by the use of the Mental Health Act (MHA) or the Mental Capacity Act Deprivation of Liberty Safeguards (MCA DoLS).

For all people who receive adult social care services, COVID-19 has led to great restrictions in their freedom. Day centres and clubs are not open; relatives and friends have been prevented from visiting as normal; outings and trips into the wider community have been cancelled. It looks as if the effect of these limitations may be intensified for people living in mental health settings, or even subject to community powers under the MHA such as guardianship or a community treatment order (CTO).

The CQCs Findings and Steps are Taken

The CQC is particularly concerned about the number of issues raised by people subject to the MHA, or those speaking on their behalf. They report that these calls are ‘often expressing distress or confusion about why people are more likely to be confined to their rooms rather than being able to move around freely.’

Especially now we are seeing small steps towards easing the restrictions on all of us, it is concerning that some settings may be continuing to restrict people in a disproportionate way. The CQC’s response to these complaints has been commendably fast. As well as urgent, unannounced inspections of five mental health services, as a direct result of concerns raised, they are also inviting staff or users of services to contact them if there are worries about barriers to the best care for these very vulnerable groups, saying;

“We have also changed the way we handle calls to help support people who complain to the CQC about the Mental Health Act and care or treatment while detained during COVID-19. We now prioritise contacts from or relating to people who are detained on inpatient units, and allocate them to Mental Health Act Reviewers.”

Advice From the Royal College of Psychiatrists

The governing body for psychiatrists is itself worried that excessive restriction might be applied to people who are, for whatever reason, detained under the MHA. After all, mental health units are by their nature ‘closed’ settings, and perhaps susceptible to repressive, restrictive cultures developing. This is more of a risk when units are understaffed and staff are anxious about their own health as well as that of people in the units, and so visitors are prevented, as has happened during the lockdown.

The Royal College has put out useful guidance here about the importance of restricting people no more than is completely necessary, and avoiding blanket restrictions on freedom. Acknowledging that the challenges faced by the NHS and social care are unprecedented, they warn that no one must resort to blanket restrictions and excessively restrictive practice, adding; "MHA powers must not be used to enforce treatment or isolation for any reason unrelated to the management of a person’s mental health.”

Special Risks for People with Learning Disabilities or Autism

This guidance goes into detail about risks to the freedom of certain groups. It is clear that a person with a learning disability or autism cannot be detained under the MHA simply because they find it extremely difficult to comply with any restrictions or interventions aimed at managing COVID-19, whether in the community or if the person may themselves have contracted the disease.

It goes on to warn that what they call the ‘constraints, uncertainties and significant changes in daily living as a result of the management of COVID-19’ may well upset someone with autism varies greatly, and again, this is emphatically not a reason to detain them. It has been hard for many of us to come to terms with the changes to our lives brought about by COVID-19 - for a person living with significant autism, these changes are extra stressful and upsetting.

Dementia and Intensity of COVID-19 Changes

The same risks arise for people living with dementia. The changes and restrictions may daily – or even hourly – cause huge distress, fear and confusion, due to people’s inability perhaps to recall having been told about the virus and remember, or understand, the reasons why they cannot see people they love; why they can’t go on an outing; or why staff are masked. The guidance is clear that ‘no blanket decisions on care and treatment should be made.’ This is because, although many people may have a poor memory and get confused, each person is different in what the intensity of a particular restriction will be, due to that individual’s history, their likes and dislikes.

Pointers for Practice

  • Use resources such as the brilliant, free and Coronavirus-specific Books Beyond Words here. Look for creative ways to help someone to get past any distress about masks, perhaps by masking teddies or finding photos of sports stars in masks. Now that visits may be starting again, get relatives and friends to help people to see masks and social distancing as normal, and ‘no big deal’. And always empathise with how difficult change is for people whose entire feeling of safety is bound up with the routine
  • Avoid blanket decisions that apply for example to all the users of a particular service. The outcome may be the same, but record the individual strengths a person may have – such as a sense of humour, optimism, or a trusting nature – that will help them to learn the new skills
  • Advance care planning – or simply ‘COVID-19 specific care planning’ – must be part of every review of the service being given to an individual. It must start with the person’s wishes and feelings, and their preferences. Acknowledge how hard it is for someone living with autism, a learning disability or dementia, do all you can to encourage them to master the new knowledge and skills they need, and be tolerant and kind towards people’s difficulties

Remember that Government guidance stresses that the Mental Capacity Act (MCA) remains the framework for giving human rights-based care to people who may lack the capacity for certain decisions. Check that staff involve the individual and their relatives or friends in decision-making to get answers that are right for that person. Make sure that staff understand the powers given by health and welfare Lasting Powers of Attorney (LPA) or an Advance Decision to Refuse Treatment (ADRT). More information on these can be found here

*All information is correct at the time of publishing. Use of this material is subject to your acceptance of our terms and conditions.

Rachel Griffiths

Mental Capacity and Human Rights Specialist

Rachel has huge experience and knowledge in the area of Mental Capacity, including how to recognise deprivation of liberty, when and how to assess capacity and how to go about making decisions in someone’s best interests. She is nationally recognised as a leading voice with regards to Mental Capacity, and is involved with setting the agenda as well as providing advice and information about Mental Capacity. The information, guidance and support that Rachel provides helps to ensure that the way people work is within the law and recognises that the person using services is always at the centre of any decisions made. Read more

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