Legal Update: Long-term segregation on mental health wards

Care Quality Commission report reveals cases of young people with autism or complex needs being segregated on mental health wards.

A significant number of children and young people with learning disabilities, autism or complex needs are detained in Child and Adolescent Mental Health Services Tier 4 inpatient hospitals or adult mental health hospitals. For example, in February 2019, 850 children and young people aged up to 24 with learning disabilities or autism were detained in hospital, with 205 of them aged under 18. A recent report from the Care Quality Commission (CQC) examined the use of long-term segregation on mental health wards and information from 89 registered providers showed 62 people who were in segregation, 20 of whom were children aged up to 18 and 14 young people aged 18-24.

The CQC found that a high proportion of those in segregation had autism and that in many cases staff had stopped attempting to re-integrate individuals back onto the main ward environment, usually because of concerns about violence and aggression. Thirteen people were experiencing delayed discharge from hospital, and so prolonged time in segregation, due to there being no suitable package of care available in a non-hospital setting.

Mental Health Act

In England and Wales, the principal pieces of legislation governing the treatment of people with mental health problems are the Mental Health Act 1983 (MHA 1983) and the Mental Health Act 2007 (MHA 2007). These acts make provision for the compulsory detention and treatment in hospital of those with "mental disorder", which includes conditions such as schizophrenia, depression, personality disorder, autism and learning disability. A person with a learning disability is not considered to be suffering from mental disorder for most purposes under the Act, or to require treatment in hospital, unless that disability is associated with abnormally aggressive or seriously irresponsible conduct.

Individuals can only be detained in hospital under the Mental Health Act in the interests of their own health or safety or with a view to the protection of others. There is also a requirement that appropriate treatment must be available if patients are to be subject to detention.

The MHA 1983 and MHA 2007 can be used, where appropriate, regarding children and young people of any age. Under the MHA 2007, there is now an obligation to ensure the hospital environment into which the child or young person is admitted is age appropriate and suitable for their needs. This duty applies to all patients under the age of 18 whether they are detained or informal.

Guidance and advocacy

The MHA Code of Practice is the statutory guidance for mental health professionals and services, and makes clear that "patients should not be isolated from contact with staff… or deprived of access to therapeutic interventions" and that "treatment plans should aim to end long-term segregation". National Institute for Health and Care Excellence guidance also recommends specialist assessments and interventions based on the principles of positive behavioural support, which can reduce challenging behaviour and the use of restrictive interventions. It notes the importance of family involvement and support, especially for children and young people.

Qualifying patients are also entitled to the support of Independent Mental Health Advocates who have an important role in providing people with information on their rights and supporting them to make and challenge decisions around their treatment and detention.

Despite existing guidance and safeguards, there continue to be widespread reports of inappropriate use of seclusion and restraint, poor ward environments, poor quality of care, excessive length of stay and negative impact on patients and staff. In response to these concerns, the Joint Committee on Human Rights is carrying out an inquiry into conditions in learning disability inpatient units and into the detention of children and young people with learning disabilities and/or autism.

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