Mental Health Units (Use of Force) Act 2018: an overview of the key requirements

The Mental Health Units (Use of Force) Act 2018 (the Act) received Royal Assent in November 2018, with the provisions of the statute coming into effect on 31 March 2022.

Statutory guidance that accompanies the Act

The Ministerial foreword within the statutory guidance for NHS organisations in England and police forces in England and Wales that accompanies the Act, observes that the commencement of the Act and publication of the guidance "represents a significant moment towards improving the care and treatment of the most vulnerable patients in our care".

The guidance - published by the Department of Health and Social Care on 7 December 2021 - acknowledges that the "use of force (which refers to physical, mechanical or chemical restraint, or the isolation of a patient) can sometimes be necessary to secure the safety of patients and staff". However, the guidance also recognises that “the use of force always comes with risk and can be a traumatic and upsetting experience for patients when they are at their most vulnerable and in need of safe and compassionate care" as well as the potential for it to be "upsetting for those who witness it, such as other patients or visitors".

Whilst recognising there is good practice in many mental health units, the guidance adds "there is still a greater focus on managing behaviour rather than working to prevent situations from escalating to the point at which the use of force is seen to be the only solution". The guidance therefore identifies the need to shift the focus "to one which respects all patients’ rights, provides skilled, trauma-informed, person-centred care, follows the principle of least restriction, and promotes recovery".

The Act – the key requirements

In summary, the Act covers the requirement to:

• Have a responsible person employed by the Trust to have responsibility for implementation of the Act (Section 2).
• Have a policy on the use of force (Section 3).
• There must be publication within the Trust of information about the rights of patients in relation to the use of force by staff who work within that unit (Section 4).
• Provide appropriate training to staff (Section 5).
• Record the use of any force (which is more than negligible – Section 6).

The Act is applicable to mental health units and the types of inpatient service considered within the definition of a mental health unit and the non-exhaustive list set out at page 15 of the Guide is as follows:

• "Acute mental health wards for adults of working age and psychiatric intensive care units.
• Long stay or rehabilitation mental health units for working age adults.
• Forensic inpatient or secure wards (low, medium and high).
• Child and adolescent mental health wards.
• Wards for older people with mental health problems.
• Wards for people with autism or a learning disability.
• Specialist mental health eating disorder unit.
• Inpatient mother and baby units.
• Acute hospital wards where patients are "detained under the Mental Health Act 1983 for assessment and treatment of their mental disorder".

The Guidance (at page 16) also provides a non-exhaustive list of services considered to be outside of the definition of a mental health unit and therefore not within the requirements of the Act. These are listed as the following:

• "Accident and emergency departments of emergency departments.
• Section 135 and 136 (Mental Health Act 1983) suites that are outside of a mental health unit.
• Outpatient departments or clinics.
• Mental health transport vehicles".

Comment

Unfortunately, the Act does not specify on which wards in an acute hospital the Act is to apply. However, as referenced above, the Act does apply to acute hospital wards where patients are "detained under the Mental Health Act 1983 for assessment and treatment of a mental disorder". On that basis, it is arguable that the requirements of the Act would apply to any acute medical Trust that deals with patients who may be currently detained under section 2 or section 3 of the Mental Health Act 1983, or a recalled patient under a community treatment order.

We anticipate however, that most acute Trust’s will have a good working relationship with their liaison psychiatry partners, and that this Act reinforces what is already in place.

We welcome this Act, and the guidance which comes with it, as a helpful addition to the existing statutory guidance for the Mental Health Act 1983 and the Mental Capacity Act 2005.

Read other items in Healthcare Brief - October 2022