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06th January 2017

You have the right…

You have the right...

You’ve seen TV dramas where a person is arrested by the police and read their rights. If the person is detained in police custody they read their rights again, and then again if they are questioned. These are important safeguards in law. People who become subject to the Mental Health Act also have rights enshrined in law, and these are read to patients throughout the process of subjecting someone to compulsion.

However, for the Care Quality Commission (CQC) in their recent report on the operation of the Act, the process of ‘reading someone their rights’ smacked rather too much of police procedure, and not enough of promoting the interests of patients, and encouraging them to have an active role in what was happening to them.

I wrote recently about the CQC’s report on the operation of the Mental Health Act during the last year, which contained a number of criticisms of hospitals in terms of how the law and the accompanying Code of Practice were being followed. The report is called ‘Monitoring the Mental Health Act’.

These are your rights

One of the issues they discussed was how well, or not, the rights of patients were being promoted, so I thought it would be worth writing about exactly what are a patient’s rights if they become subject to the Mental Health Act. First of all, there is a duty within the Mental Health Act on the managers of the hospital to tell patients their rights, whether detained in a hospital or subject to a treatment order in the community. So, what are the rights that people should be informed of?

  • The right to information as to which provisions of the Act you might be detained under – and what those mean.
  • The right to various other pieces of information concerning the provisions of the Act, such as who has the power to discharge you.
  • The right to information as to how you might make a complaint.
  • The right to appeal to a tribunal if you wish to be discharged from compulsory care and treatment, and how you might seek legal advice.
  • The right to access an Independent Mental Health Advocate.
  • In addition, the person’s nearest relative has a right to these pieces of information.

Let’s have a look at this last point, because it presents a number of difficulties.

Relatively speaking

The Mental Health Act provides a number of rights to the patient’s nearest relative. Your nearest relative is decided by rank order described in Section 26 of the Act, with husband or wife at the top, then other relatives following below. You don’t get a choice as to who your nearest relative is. Yet, the Act says that any information about your rights that are given to you are also given to your nearest relative, and you as a patient might not want that. Well, the Act acknowledges that, so if you object to this then the information should not be passed on.

Indeed, in Chapter 4 of the Code of Practice to the Mental Health Act where it talks about information sharing, it says this information should not be passed onto nearest relatives if this would have a detrimental effect on the patient. This guidance was written to ensure that people’s right to privacy was respected – one of the key articles of the European Convention on Human Rights.

Lessons for all

Let’s go back to the CQC’s criticism as for how patient’s rights were being communicated and see if there are lessons for staff working in health and social care , and not just with people subject to the Mental Health Act.

  • Ensure information is communicated in an accessible way, so that if there are communication barriers such as deafness or learning disability that alternative formats are used to make sure the person understands their rights.
  • The Mental Health Act only requires that information on rights is given to people who are detained under a section of the Act. However, the Code of Practice says that it would be good practice to give information to informal patients (those who are in a psychiatric hospital but not detained against their will).
  • If patients have a concern or complaint about their stay in the hospital, they should be supported in raising those concerns, particularly in getting an advocate involved if that is what the person wants.
  • Giving someone information about their rights should not be seen as a one off, just to be done when the person first becomes subject to the Act. So, refreshers and reminders should be given to patients on a regular basis, particularly if there is concern that say at the time of admission in a crisis, the person was not able to take on board lots of information. The Code of Practice goes on to describe the types of occasions when it would be helpful to reinforce someone’s rights, such as before a Care Programme Approach review meeting, or when medication or other treatment is being reviewed.
  • Hospitals often rely on pre-printed standard leaflets about different sections of the Mental Health Act, as their way of ensuring someone has ‘been given their rights’. That’s OK, but it should be reinforced by talking through the person’s rights with them which gives the person the chance to ask questions and clarify their rights. The Code of Practice says that giving information about rights verbally should not be just reading out what it says on the leaflet.
  • The CQC’s ‘Monitoring the Mental Health Act’ report highlighted some imaginative ways of promoting people’s rights, such as by having information displayed on notice boards. So, giving people their rights doesn’t have to be seen as a purely one-to-one interaction.
  • One of the questions I’ve posed before in other blogs, is if there is no record of something being done, how would anyone (including an inspector) know it had happened? So, if you are promoting good practice in giving people information about their rights, record in their notes how and when you did this.

*All information is correct at the time of publishing

Topics: Mental Health

David Beckingham

Mental Health Specialist

David Beckingham is a self-employed independent trainer, and is also an honorary lecturer with the University of Cumbria. His professional background is as a social worker and he has worked in care homes for older people in Cumbria. David’s main area of expertise is in mental health. Prior to becoming self-employed he was a Staff Development and Training Officer with Cumbria County Council, both commissioning and delivering training to mental health workers and others in statutory and independent sector organisations. Read more

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