Mental Health Units (Use of Force) Act 2018: statutory guidance for NHS organisations in England and police forces in England and Wales – draft for consultation

Question 1

1. 	Introduction

Accepted Answer

The need for the act and statutory guidance

Every individual has the right to be treated with dignity and in a caring therapeutic environment which is free from abuse. 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. 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. The use of force can also be upsetting for those who witness it, such as other patients or visitors. For too long the use of force has been accepted as the norm in many mental health services. This must change. While there has been guidance in recent years which has aimed to reduce the reliance on the use of force, there are still too often reports of its misuse and abuse which reminds us there is still work to do.

Data^{[footnote 1]} shows that the use of force is at an all-time high. While there are many reasons for this rise, such as improved recording and reporting and more patients using services, there is still an over-reliance on the use of force. The data^{[footnote 1]} also shines a light on the often, disproportionate use against some groups who share a protected characteristic under the Equality Act 2010 such as black and ethnic minority groups, women and girls, and people with autism or a learning disability.

While there is good practice in many of our mental health units, 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. This focus needs to shift to one which respects all patients’ rights, provides skilled, trauma-informed, person-centred care, follows the principle of least restriction and promotes recovery.

Aim of the act and statutory guidance

The aim of the Mental Health Units (Use of Force) Act 2018 and this statutory guidance is to clearly set out the measures which are needed to both reduce the use of force and ensure accountability and transparency about the use of force in our mental health units. This must be in all parts of the organisation, from Executive Boards to staff directly involved in patient care and treatment.

It is also widely recognised that there are inconsistencies nationally in the way mental health units record and report data on the use of force, the quality of staff training, and the way in which investigations are carried out when things go wrong. The requirements of the act and this statutory guidance provide a much-needed opportunity to embed a consistent approach across services nationally.

The guidance also promotes and encourages the use of a human rights-based approach to the use of force, working with patients in a trauma-informed, person-centred way, and developing therapeutic environments which ensure that force is used proportionately and only ever used as a last resort. The use of force should be rare and exceptional, rather than a common experience for patients and staff.

What is the use of force, why and when it can be used

The Mental Health Units (Use of Force) Act 2018 introduces the following definitions of use of force.

Use of force includes physical, mechanical or chemical restraint of a patient, or the isolation of a patient (which includes seclusion and segregation).

The act defines the different types of force as:

physical restraint: the use of physical contact which is intended to prevent, restrict or subdue movement of any part of the patient’s body
mechanical restraint: the use of a device which is intended to prevent, restrict or subdue movement of any part of the patient’s body, and is for the primary purpose of behavioural control
chemical restraint: the use of medication which is intended to prevent, restrict or subdue movement of any part of the patient’s body

The act states that isolation is any seclusion or segregation that is imposed on a patient. However, it does not define these terms. The definitions of these are provided in Annex A of the Mental Health Act 1983: code of practice, which applies to any patient in a mental health unit detained under that act, which defines them as:

seclusion: the supervised confinement and isolation of a patient, away from other patients, in an area from which the patient is prevented from leaving, where it is of immediate necessity for the purpose of the containment of severe behavioural disturbance which is likely to cause harm to others
(long-term) segregation: a situation where, in order to reduce a sustained risk of harm posed by the patient to others, which is a constant feature of their presentation, a multi-disciplinary review and representative from the responsible commissioning authority determines that a patient should not be allowed to mix freely with other patients on the ward on a long-term basis

These definitions are broadly consistent with definitions which relate to the use of force set out in the Health and Social Care Act 2008 (Regulated Activities) Regulations 2014 (‘the 2014 Regulations’) and in the Mental Health Act 1983: code of practice.

‘Chapter 26: Safe and therapeutic responses to disturbed behaviour’ of the Mental Health Act 1983: code of practice provides further statutory guidance in relation to the use of force which staff are under a statutory duty to have regard to in relation to patients in mental health units detained under the Mental Health Act 1983.

In particular, paragraphs 26.36 and 37 provide further guidance on the meaning of restrictive interventions (use of force), as:

“…deliberate acts on the part of other person(s) that restrict a patient’s movement, liberty and/or freedom to act independently in order to:

take immediate control of a dangerous situation where there is a real possibility of harm to the person or others if no action is undertaken, and;
end or reduce significantly the danger to the patient or others.

Restrictive interventions should not be used to punish or for the sole intention of inflicting pain, suffering or humiliation.

Where a person restricts a patient’s movement, or uses (or threatens to use) force then that should:

be used for no longer than necessary to prevent harm to the person or to others;
be a proportionate response to that harm, and;
be the least restrictive option.”

It is important to acknowledge that there are circumstances where it may be difficult to avoid the use of force to ensure the safe care and treatment of the patient, and the safety of other patients and staff. For example, nasogastric feeding for patients with eating disorders or a need to restrain a patient with dementia who is resisting or refusing help with personal care and support. Even within these situations it is still essential that the relevant legal principles are applied and that the use of force is proportionate.

Human rights-based approach to the use of force

All uses of force must be rights-respecting, lawful and compliant with the Human Rights Act 1998. Human rights are the fundamental freedoms and protections which everyone is entitled to. They cannot be taken away – but some rights can be restricted in specific circumstances for a legitimate reason, as long as that restriction is proportionate. Some rights, including freedom from torture, inhuman and degrading treatment are absolute and can never be restricted.

The Human Rights Act 1998 incorporates into domestic law the rights enshrined in the European Convention on Human Rights (ECHR). Articles 3 (freedom from torture, inhuman and degrading treatment), 8 (respect for private and family life) and 14 (protection from discrimination) of the ECHR are those which relate to the use of restraint in mental health settings. It means all public authorities and organisations carrying out public functions (including the provision of mental health units) are legally obliged to respect patient’s rights and take reasonable steps to protect those rights.

Alongside the Human Rights Act 1998, the UK government has signed and ratified other United Nations (UN) human rights treaties which are relevant to the use of force. Organisations should ensure that all staff are aware of and understand their duties under the Human Rights Act 1998 and other relevant UN human rights treaties. This should include:

The following documents provide further detailed guidance on human rights:

Chapter 26: Safe and therapeutic responses to disturbed behaviour – Mental Health Act 1983: code of practice
Equality and Human Rights Commission; Human rights framework for restraint
Human rights framework for people in detention – Equality and Human Rights Commission
Mental Health, Mental Capacity and Human Rights: A practitioner’s guide – the British Institute of Human Rights

It is important that staff and senior managers ensure that the legislative framework is applied in a way which is compatible with ECHR rights and freedoms. The Human Rights Act 1998 is the foundation on which other laws and duties are implemented.

There are legal frameworks including those under the Mental Health Act 1983 and the Mental Capacity Act 2005 that are designed to ensure that any use of force is applied only after a proper process has been followed. Such legal frameworks require any force used to be necessary and proportionate, and the least restrictive option.

Below is a list (not exhaustive) of legislation relevant to the use of force:

What the act covers and who it applies to

The Mental Health Units (Use of Force) Act 2018 (the act) received Royal Assent (when a bill is made into an act of Parliament) on 1 November 2018.

The requirements set out in the act are:

section 2 – service providers operating a mental health unit to appoint a ‘responsible person’ who will be accountable for ensuring the requirements in the act are carried out
section 3 – the responsible person for each mental health unit must publish a policy regarding the use of force by staff who work in that unit. The written policy will set out the steps that the unit is taking to reduce (and minimise) the use of force by staff who work in the unit
section 4 – the responsible person for each mental health unit must publish information for patients about their rights in relation to the use of force by staff who work in that unit
section 5 – the responsible person for each mental health unit must ensure staff receive appropriate training in the use of force. Subsection 2 sets out what that training should cover
section 6 – the responsible person for each mental health unit must keep records of any use of force on a patient by staff who work in that unit, which includes demographic data across protected equality characteristics
section 7 – the Secretary of State for Health and Social Care must ensure that at the end of each year statistics are published regarding the use of force by staff, using the relevant information recorded under section 6
section 8 – the Secretary of State for Health and Social Care must conduct an annual review of any reports made under paragraph 7 of schedule 5 to the Coroners and Justice Act 2009, and may conduct a review of any other findings or determinations made relating to the death of a patient as a result of the use of force in a mental health unit. The Secretary of State for Health and Social Care must then publish a report that includes conclusions arising from the review
section 9 – if a patient dies or suffers serious injury in a mental health unit, the responsible person must have regard to any relevant guidance relating to investigations of deaths or serious injuries
section 10 – explains that the responsible person may delegate their functions where appropriate to do so
section 11 – the Secretary of State for Health and Social Care must publish guidance which sets out in more detail how to implement the requirements set out in the act
section 12 – if a police officer is going into a mental health unit on duty to assist staff who work in that unit, the police officer must wear and operate a body camera at all times when reasonably practicable

The act applies in England only. Section 12 applies to English police officers, a member of the special constabulary or special constable, the British Transport Police, and Welsh police officers if they are called to assist in a mental health unit in England.

The act applies to all patients being assessed or treated for a mental health disorder in a mental health unit (NHS and independent hospitals providing NHS-funded care), whether they are detained under the Mental Health Act 1983 or as an informal or voluntary patient. When we refer to patients in this guidance, we mean everyone including children and young people, working age adults and older people. Where information relates specifically to one group of patients this will be clearly set out.

As set out above, this statutory guidance (produced under section 11 of the act) provides more detail about how to implement the requirements of the act. It only covers the sections of the act which require action by the responsible person or a mental health unit. These are sections 2, 3, 4, 5, 6, 9 and 10.

Sections 7, 8 and 11 impose duties on the Secretary of State for Health and Social Care.

Section 7 requires the Secretary of State to publish annual statistics about the use of force in mental health units. The national statistics will use some of the information which will be collected under section 6 (recording of use of force) of the act, using systems which are already in place for recording and reporting the use of force. Data will continue to be reported through the NHS Digital Mental Health Services Data Set on a monthly basis, while the annual national data required under section 7 of the act will be reported in the annual NHS Digital Mental Health Bulletin. The annual statistics will provide a breakdown of patient demographic information using the protected characteristics as set out in the Equality Act 2010, and details of the types of force used.

Section 8 requires the Secretary of State to conduct an annual review into any coroners’ reports. The Secretary of State may also conduct a review into, other relevant organisations’ findings, of deaths that occurred as a result of the use of force by staff in a mental health unit. The Secretary of State must then publish a report of the review and include conclusions arising from the review.

Section 12 of the act relates to police use of body cameras. Whenever the police are called to assist mental health unit staff they are required to wear and operate a body camera at all times when reasonably practicable. This could be any of the officers noted above. If the police officer has a body camera they must wear and keep it operating (recording) at all times. However, there may be special circumstances that justify not wearing or operating a camera, it is for the police officers to determine in line with current College of Policing guidance on the use of body cameras whether special circumstances apply.

The Home Office and College of Policing will consider whether current guidance on the police use of body cameras requires further update to ensure it is in line with the requirement of the act. A link to the relevant College of Policing guidance (and any other relevant guidance) will be published in the final version of this guidance.

Legal status of this statutory guidance

This statutory guidance issued by the Secretary of State for Health and Social Care under section 11 of the act provides guidance to a ‘responsible person’ (see section 2) and ‘relevant health organisations’ (mental health units) about how they exercise their functions under the act.

Both the ‘responsible person’ and staff working in mental health units ‘must have regard’ to this guidance. It is important that, the responsible person ensures that they and other staff are familiar with its requirements, as departures from the guidance could give rise to legal challenge. There should be clear and cogent, documented reasons for departing from the guidance as courts will scrutinise such reasons to ensure that there is a sufficiently convincing justification in the circumstances. Organisations or trusts should have a process in place to ensure that the reasons for any departures from the guidance are clearly documented.

This guidance is not intended to override other guidance which already applies to mental health units but sits alongside it. For example, the Mental Health Act 1983: code of practice in relation to restrictive interventions (use of force) will still apply to patients in mental health units who are detained under the Mental Health Act 1983. Where relevant this guidance will refer directly to other legislation, guidance and information.

Case studies and good practice examples have been included in this guidance and are intended to illustrate the way in which the guidance might be applied.

Case studies and good practice examples will be added to the final published version of the statutory guidance.

This guidance will be kept under review and updated as necessary. Any substantial changes to the guidance will be consulted on with appropriate persons before being published in accordance with section 11(6) of the act.

Question 2

2.  Requirements of the act

Accepted Answer

The requirements set out in the rest of this guidance are applicable to mental health units (both NHS and independent where providing NHS-funded care).

Section 1: key definitions

This section explains some of the important terms used in the act.

Mental Disorder has the same meaning as in the Mental Health Act 1983 which is “any disorder or disability of the mind”.

Mental Health Unit is described as a health service hospital or independent hospital in England (or part thereof) that provides treatment to in-patients for a mental disorder. An independent hospital (or part thereof) will only be a “mental health unit” if its purpose is “to provide treatment to in-patients for mental disorder”, and “at least some of that treatment is provided, or is intended to be provided, for the purposes of the NHS.”

The types of in-patient service which would be considered within the definition of a mental health unit (this is not an exhaustive list) include:

acute mental health wards for adults of working age and psychiatric intensive care units
long-stay or rehabilitation mental health wards 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 a learning disability or autism
specialist mental health eating disorder services
acute hospital wards where patients are “detained under the Mental Health Act 1983 for assessment and treatment of their mental disorder”

The following services are considered to be outside of the definition of a mental health unit (this is not an exhaustive list) and therefore not covered by the requirements of the act:

accident and emergency departments of emergency departments
section 135 and 136 suites
outpatient departments or clinics

Please refer to the ‘What is the use of force, why and when it can be used’ section of this guidance for the definitions of the use of force introduced by this act.

Question

Is the guidance clear on what is meant by each of the terms?

Yes
No
Not sure

Please give your reasons.

Question

Is the guidance clear about what settings the act applies to?

Yes
No
Not sure

Please give your reasons.

Section 2: mental health units to have a responsible person

It is essential that there is accountability and responsibility for the use of force at the highest level within an organisation. Organisation or trust boards have a legal, professional and ethical obligation to minimise harm to service users, staff and others, and therefore must be accountable for the use of force within their organisation.

A relevant health organisation (NHS trust or NHS foundation trust or independent hospital providing NHS-funded care) operating a mental health unit must appoint a ‘responsible person’ whose role it is to ensure that the organisation complies with the requirements of the act.

The role of the responsible person does not require a new appointment, but it must be a permanent member of staff within the organisation and at an appropriate level of seniority, such as an Executive Director or equivalent. This may be, for example, the Chief Nurse or Medical Director. Organisation or trust boards should ensure that whoever is appointed has the relevant skills and experience to undertake the responsibility of this role. Organisation or trust boards should ensure the responsible person has the support of all senior management in performing their role and has the necessary resources available to them.

The responsible person should attend appropriate training in the use of force to ensure they understand the strategies and techniques their staff are being trained in. It is important they are guided by the impact of trauma on their patients and the potentially re-traumatising impact of the use of force. See section 5 for further detail on staff training requirements.

Where the organisation or trust operates more than one mental health unit, the act requires that the same responsible person must be appointed in relation to all the mental health units. This is to ensure a consistency of approach to the use of force across the organisation.

The responsible person may delegate some of their functions under the act to other suitably qualified members of staff within the organisation. Refer to section 10 of this guidance for further detail on delegation. It is important to state that whether the responsible person delegates any of the act’s duties or not, they retain overall accountability for these duties being carried out.

It would be good practice to publish the name of the responsible person in the same way that other members of the organisation or trust executive board are published.

Question

Is it clear what the role of the ‘responsible person’ is?

Yes
No
Not sure

Please give your reasons.

Question

Is it clear the level of seniority the ‘responsible person’ must have?

Yes
No
Not sure

Please give your reasons.

Section 3: policy on use of force

The responsible person must publish and keep under review a policy regarding the use of force on patients by staff who work in the mental health units run by that organisation. Where there is more than one mental health unit within the organisation, one single organisation wide policy should be produced and shared across the organisation. This will ensure there is a consistent approach across the organisation.

However, it is essential that all policies reflect the needs of the patient population using the services and are tailored to the specific services being provided. Where an organisation is providing different types of services across several units the policy should clearly set out the different needs or considerations that may be relevant for particular patient groups, for example, children and young people, adults, women and girls, patients with autism or a learning disability, and people who share protected characteristics under the Equality Act 2010.

It is also important that policies reflect the differences in approach required to ensure services are culturally appropriate, and respectful and responsive to the cultural differences, beliefs and practices of the patient population being served.

The policy should include a statement which sets out the organisation’s commitment to minimising the use of force, through the promotion of positive cultures, relationships and approaches which will prevent escalation and any need to use force.

The policy should set out the plan or approach the organisation is taking to reduce the use of force within their mental health units. The policy should (as a minimum) include the following:

a) the organisation’s commitment to protect human rights and freedoms

b) the organisation’s commitment to minimising the use of force, recognising the potentially traumatising impact the use of force can have

c) information about how the organisation will monitor the use of force on people who share protected characteristics

d) what action the organisation will take if the inappropriate use of force is identified

e) details of the types of force and specific techniques which the organisation may use, which may be different in services for children and young people, adults or older people. This should include information about the risk assessments undertaken prior to the techniques being approved by the organisation or trust board, and an assessment of the training needs of staff in using these techniques. See below for further detail about the types of force used

f) examples of the circumstances in which the use of force may or may not be used, and when a use of force is considered negligible (in accordance with this guidance – see section on guidance on the negligible use of force below)

g) information on how the risks associated with the use of force will be managed

h) details of relevant staff training programmes and how learning and knowledge will be transferred into the workplace. This should also include the importance of all training complying with Restraint Reduction Network National Training Standards (see section on Restraint Reduction Network Training Standards and Certification below)

i) details of how patients, their families, carers, and independent advocates will be involved in care planning which sets out the preventative strategies to the use of force, through for example advance statements

j) information about how staff will use and follow individualised patient plans

k) details of how patients, their families, carers, and independent advocates will be involved in post incident reviews following the use of force, and how the impact (physical or emotional) will be reflected in the patients’ follow up care. The NICE Quality Standard, Quality Statement 5 provides further information on post incident debrief

l) clear information on the expectations for recording and reporting of the use of force within the organisation

m) detail on how local management information will be used to inform development and review of the policy (see below)

n) details on how organisations will work to co-produce policies with their local patient populations to reflect their needs and experiences

o) details of how the policy will be communicated to patients, families, carers and independent advocates

p) Details of how often the policy will be reviewed and by whom

For (e) in the list above, both the Mental Health Act 1983: code of practice and Positive and Proactive Care: reducing the need for restrictive interventions set out the following in relation to physical restraint:

people must not be deliberately restrained in a way that impacts on their airway, breathing or circulation. The mouth and/or nose must never be covered and techniques should not incur pressure to the neck region, rib cage and/or abdomen
there must be no planned or intentional restraint of a person in a prone or face down position on any surface, not just the floor
if exceptionally a person is restrained unintentionally in a prone or face down position, staff should either release their holds or reposition into a safer alternative as soon as possible
staff must not use physical restraint or breakaway techniques that involve the use of pain, including holds where movement by the individual induces pain, other than for the purpose of an immediate rescue in a life-threatening situation

Before publishing the policy, the responsible person must consult with whoever they consider it appropriate to consult. This should include both current and former patients, their families and carers, bereaved families, and any relevant local third sector organisations. This may be carried out through existing networks, user groups and forums. The policy should also include details of who or which groups were consulted.

It is important that staff working in mental health units recognise the valuable contribution people with lived experience can have in the design and improvement of services. Mental health units should ensure that the policy on use of force is co-produced with people with lived experience of mental health services, along with their families and carers.

Good co-production means drawing together people with lived experience and health professionals and treating them as equal and reciprocal partners. It requires everyone to value one another’s opinions, views and expertise. Understanding and learning from their experiences (good and bad) should lead to more people-centred approaches to care, and improved relationships between service users and staff, and can help break down barriers and assumptions people may have. Good co-production means that everyone involved will be able to recognise their input into the policy. However, the policy remains the responsibility of the responsible person who will have the final say over its contents.

The policy on use of force should also be signed off by the organisation or trust board.

The policy must be published. This should be on the trust’s website and in hard copy format, and any other way that the organisation usually makes information available and accessible for patients and service users. The policy should be made available in different formats (such as easy read) and languages as appropriate to the type of service being provided and the population being served in line with the duty to make reasonable adjustments. It is good practice to publish all available formats on the trust’s website.

The act requires the responsible person to keep the policy on use of force under regular review. This should be done on an annual basis to ensure it is up to date with current practice and evidence, and to allow for local management information to inform the review. If the review suggests changes to the policy which are considered to be a substantial change, the act requires that the responsible person must again consult on the changes and re-publish the policy.

It is good practice to use local management information (such as learning from post incident review data, deaths (specifically Coroner’s Preventing Future Deaths reports) or serious injuries, complaints data and records of force used in the previous year) to update the policy. For example, post-incident review data should include information on ways in which to prevent or reduce the use of force in the future for a patient (such as those who share a protected characteristic under the Equality Act 2010). It may be useful to analyse the data to identify themes emerging across patient groups which could be used to update the policy and reduce any disproportionate use on people sharing protected characteristics. If a review of current practice and local management information identifies that the organisation is not achieving the principles set out in the policy on use of force, then the policy on use of force should be reviewed and updated.

Question

Does the guidance clearly explain what a policy on use of force should include?

Yes
No
Not sure

If no, what else should be included in the policy on use force section of the guidance?

Section 4: information about use of force

It is important that patients, and where appropriate their families and carers, are provided with information about the use of force and their rights in relation to any use of force which may be used by staff in a mental health unit. The information will help patients and their families and carers understand what might happen to them while they are an inpatient in a mental health unit, what their rights are, and what help and support is available to them should they need it.

As with the policy on use of force, the responsible person must publish and keep under review information about the rights of patients as it relates to the use of force. It is important the information being provided reflects the age and needs of the patient population using the service and is tailored to the specific service being provided. Where an organisation is providing different types of services across several units the information should be specific to the type of service being provided.

The information provided should (as a minimum) cover the following:

a clear statement that the use of force is only ever used proportionately and as a last resort and that it can never be used to cause pain, suffering, humiliation or as a punishment
which staff may use force and in what limited circumstances, and what approaches and steps will be taken to avoid using it
details of the types of force (techniques and approaches used) which staff may use with a distinction between children and young people, adults and older people and sex
details of how patients, their families, carers, and independent advocates must be involved in care planning which sets out the preventative strategies to the use of force, through for example advance decisions
details of how patients, their families, carers, and independent advocates must be involved in post incident reviews following the use of force
what action the organisation will take if the inappropriate use of force is identified
the patient’s rights in relation to the use of force; this includes rights protected by the Human Rights Act 1998, the Mental Health Act 1983, Mental Capacity Act 2005, and the Equality Act 2010 (including the duty to make reasonable adjustments)
the patient’s legal rights to independent advocacy and how to access organisations who can provide this service, and the role of the Independent Mental Health Advocate and Independent Mental Capacity Advocate (if applicable)
the organisation’s complaints procedure and the help available from an independent advocate to pursue a complaint in relation to the use of force
the process for raising concerns about abuse and breaches of human rights, and the help available from independent advocates
clear information on what will be recorded and reported on the use of force
details on how organisations will work to co-produce policies and information with their local patient populations
a glossary of the terms used by staff and the organisation or trust in relation to the use of force
contact details of independent advocacy services and other relevant local and national organisations
details on where the policy on the use of force can be found
details of how often the information will be reviewed and by whom

Before publishing the information, the responsible person must consult with whoever they consider it appropriate to consult. This should include both current and former patients, their families and carers, bereaved families, staff representatives, and any relevant local third sector organisations. This may be carried out through existing networks, user groups and forums.

As with the policy on use of force, it is important to recognise the valuable contribution people with lived experience can have. Mental health units should ensure that the information on the use of force is co-produced with people with lived experience of mental health services, along with their families and carers and the staff involved in providing the care. See above on the policy on use of force regarding co-production.

The information about the use of force should be signed off by the organisation or trust board.

The responsible person (or delegated members of staff) must ensure the information about the use of force is provided to each patient, and to any person whom the responsible person (or delegated members of staff) considers it appropriate to provide the information to in connection with the patient, such as a family member or carer. However, the duty to provide patients and others with the information does not apply if the patient or other person refuses the information. There may be legitimate reasons for patients refusing information, such as they find it causes further distress, or they feel they do not require it. If the patient initially refuses the information, the responsible person (or delegated members of staff) should make further attempts at reasonable intervals to provide them with the information in an appropriate format.

The responsible person should guard against patients being routinely said to refuse information about their rights. They should actively monitor take-up of information, and ensure strategies are in place to encourage positive dissemination of the information. The responsible person should also record whether the information was accepted or refused by the patient.

The information must be provided to the patient as soon as reasonably practicable after they are admitted to the mental health unit. The responsible person (or delegated members of staff) within the unit will need to use their professional judgement about when it is an appropriate time to provide the information to patients. Individual approaches may be required and will be dependent on each patient. Staff will need to be sensitive to the timing of approaches to inform some patients (for example children and young people or survivors of abuse) about their rights in relation to the use of force, so as not to cause alarm or distress.

It can be traumatic for other persons within the unit to witness force being used on others. It is recommended that other persons who may witness force being used, be offered the information about use of force to avoid any distress and confusion this may cause them. It would be good practice to offer the other person who may have witnessed the use of force the opportunity to debrief with a member of staff not involved in that use of force. This should be seen as a further opportunity to learn and take action if required.

The responsible person (or delegated members of staff) must take whatever steps are reasonably practicable to make sure the patient is aware of the information and understands it, while having regard to the interests of the patient who has the right not to discuss the information if they do not want to. This means that staff must explain the information set out in an accessible and easily understandable way. Staff may need to talk to patients more than once about the information, using tailored approaches which are appropriate to the patient to ensure they are aware of and understand the information they are being provided with. The information should be presented positively to patients so that it doesn’t in itself cause distress, be seen as a threat, and ensures the patient understands the reasons for the use of force.

For example, for patients with a neurodiversity, learning or intellectual disability written or verbal information alone may be of limited use. Tailored approaches will be required to ensure patients are given the best opportunity to truly engage with the information they are being presented with. This may require a range of approaches and techniques to be considered.

The information about use of force must be published. This should be on the organisation or trust’s website as well as in hard copy. It could be as a leaflet available on the wards, or in a patient’s welcome pack. Patients and others should know where the information is located and be able to easily access it themselves. The information about use of force should be accessible to all patients reflecting the population using the service. This may mean producing the information in different formats and languages. As with the policy on use of force, it is good practice to publish all available formats on the organisation or trust’s website.

Under the Equality Act 2010 organisations have a duty to make reasonable adjustments, which means that the information about use of force must be provided in accessible formats for disabled people. This duty is anticipatory, so organisations must think in advance of the needs of patients and not wait until the need arises to provide foreseeable adjustments. NHS organisations are also legally required to follow the Accessible Information Standard. The Standard sets out a specific, consistent approach to identifying, recording, flagging, sharing and meeting the information and communication support needs of patients.

The act requires the responsible person to keep the information about use of force under regular review. This should be done on an annual basis to ensure it is up to date and in the relevant formats for patients. If the review suggests changes to the information being provided which are considered to be a substantial change the responsible person must again consult on the changes and re-publish the information. The information about use of force may also require updating following any revisions to the policy on use of force.

Question

Does the guidance clearly explain what information should be given to patients on the use of force?

Yes
No
Not sure

If no, what other information should be included in the information on the use of force section of the guidance?

Section 5: training in appropriate use of force

Staff education and training are central to promoting and supporting calm, safe and respectful environments where the use of force is kept to a minimum. It is essential that staff are properly trained to provide safe, trauma-informed, person-centred care, where children and young people, adults, women and girls and older adults are treated with dignity and respect and their views and feelings are understood and their specific needs are met.

The training provided should support an overall human rights-based approach (see the section on human rights-based approach to the use of force), which is focused on the minimisation of the use of force and ensures any use of force is rights-respecting. Human rights apply to all patients receiving care and treatment, and all training must be informed by the legal duties of staff to respect and protect those human rights.

The emphasis of any training programme should be on creating a positive environment for care, which promotes the patient’s best interests and reduces the reliance on the use of force. Through understanding the impact of trauma and the reasons for a patient’s behaviour, it is possible to pre-empt, take active steps to avoid, or de-escalate distress or conflict. Organisation or trust boards should ensure that training and workforce development reflects the therapeutic nature and purpose of health and care settings and ensure that it has been appropriately developed for use in health and social care rather than for other purposes, for example, in the security industry.

On the rare occasions where the use of force is needed, patients, their families and carers must feel confident that staff have been properly trained in the safe use of the techniques they are using.

It is also important that training is done in a manner that is respectful of staff’s legitimate concerns to be able to protect the safety of the patient, and others against potential violence from another patient. The training should aim to provide staff with the confidence to know when they can and should use appropriate and proportionate force as well as being able to recognise what is inappropriate or excessive force. There should be clear plans in place to ensure that knowledge gained during staff training is transferred to the workplace and applied in practice, and that staff should only use techniques they have been appropriately trained to use.

As with the policy on use of force and information about use of force it is important to ensure the experiences of people with lived experience inform the development of training materials and delivery of the training through meaningful co-production. Training programmes should also be relevant to the patient population using the services and cover the different approaches which will be needed for children and young people, women and girls, people with autism and learning disabilities or patients from black and ethnic minority backgrounds.

The responsible person must provide training for staff about the use of force by staff who work in the mental health unit. The definition of staff is included within section 13 of the act. For the purposes of complying with the act staff means any person (whether as an employee or contractor) who works for an organisation or trust that operates a mental health unit who either:

may be authorised to use force on a patient
may authorise the use of force on a patient
has general authority for the use of force

This means that all staff (including temporary, or bank or agency staff) involved in using force on a patient or involved in the authorisation of the use of force must undertake training which is appropriate to the role they are undertaking. For example, executive board members (or equivalent) who authorise the use of force in their organisations should undertake appropriate training to ensure they are fully aware of the approaches and techniques (prevention or otherwise) their staff are being trained in. They would not be expected to complete the full training programme given to staff who are directly involved in patient care.

Section 5 sets out, as a minimum, the list of training topics which must be covered. The list in the act is not exhaustive. For each of the topic areas which must be included in staff training the following sections set out examples of what should be covered in each of those topic areas.