Consultation outcome

Mental Health Units (Use of Force) Act 2018 statutory guidance: consultation response

Updated 7 December 2021

Ministerial foreword

As Minister for Care and Mental Health, I am committed to ensuring that every individual in a mental health unit is treated with dignity and in a caring therapeutic environment free from abuse. For too long the use of force has been accepted as the norm in many mental health services. We know that there is an over-reliance on the use of force in mental health units and that certain groups, such as people from Black and minority ethnic groups, are more likely to have force used against them.

We are committed to ensuring that everyone, regardless of their background, has access to the right mental health support and the Mental Health Units (Use of Force) Act 2018 represents a significant step towards addressing these inequalities. It is clear the focus needs to shift to one that:

• respects all patients’ rights
• provides skilled, trauma-informed, person-centred care
• follows the principle of least restriction
• promotes recovery

While we continue to make progress in improving the patient experience within mental health services, we know that more needs to be done to reduce the use of force.

The Mental Health Units (Use of Force) Act 2018 (the act), also known as Seni’s Law, is named after Olaseni Lewis, who tragically died as a result of being forcibly restrained while he was a voluntary patient in a mental health unit. While nothing can ease the pain of Seni’s family and friends, I am determined that we learn the lessons from these tragic events to ensure that no other family need experience the same devastating loss. The purpose of the act is to clearly set out the measures that are needed to both reduce the inappropriate use of force, and ensure accountability and transparency about the use of force in mental health units.

The statutory guidance sets out how we expect mental health units to meet the requirements of the act. Commencing the act and publishing the statutory guidance is part of the government’s wider reform agenda to improve support for individuals with severe mental illnesses, including our work in reforming the Mental Health Act 1983, which will ensure that people have greater control over their treatment, and receive the dignity and respect they deserve.

Development of the statutory guidance has involved extensive engagement across a wide range of stakeholders, including Aji Lewis and Seni’s family. Through this consultation and policy work, we have also engaged with:

• people who have personal experience of being an inpatient in a mental health unit
• their families and carers
• the voluntary and charitable sector
• regulators
• the NHS
• professional bodies

Responses to the consultation were largely positive, and I would like to thank all those who have taken the time to respond.

I am pleased that alongside the publication of this government response to the consultation, we are making commencement regulations and publishing the final statutory guidance. The majority of the provisions within the act will then come into force in March 2022.

Gillian Keegan

Minister of State for Care and Mental Health

Executive summary

Overview

The government is clear that the use of force should only ever be proportionately and as a last resort, when all attempts to de-escalate a situation have been employed.

The Mental Health Units (Use of Force) Act gained Royal Assent in November 2018. Commonly known as Seni’s Law, it is named after Olaseni Lewis who died in September 2010 as a result of being forcibly restrained while he was a vulnerable voluntary patient in a mental health unit.

The aim of Seni’s Law is to clearly set out the measures that are needed to both reduce the inappropriate 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.

The statutory guidance issued by the Department of Health and Social Care (DHSC) is intended for use by NHS hospitals and independent hospitals (providing NHS-funded care) in England who provide care and treatment to patients with a mental disorder.

It covers:

• the information providers need about how they should meet the legal obligations placed on them by the act
• best practice advice
• the obligations on police officers when in mental health units in England

We ran a public consultation on the draft statutory guidance, and all responses were welcomed, especially from those who have personal experience of the use of force in a mental health unit. This response to the consultation sets out what respondents have said about the draft statutory guidance.

Public consultation

We ran a 12-week public consultation, receiving more than 400 responses. In parallel to the consultation, Colourful Minds and the Restraint Reduction Network (RRN) held workshops and webinars to get richer insights from service users, clinicians and those with personal experience of the use of force in mental health units about the clarity, content and approach of the draft statutory guidance.

Overall, there was broad agreement that the statutory guidance clearly sets out the requirements of the act for mental health units, and the majority of respondents agreed that the guidance seeks to reduce and minimise the use of force in mental health units. Some of the questions regarding the development of the guidance are complex issues, and we are grateful for the constructive and insightful input we have had from stakeholders.

Some respondents raised concerns around the type of settings the act applies to, and made suggestions that the act should apply to accident and emergency (A&E) departments and Section 135/136 suites. We understand the concerns raised about the use of force in different settings – however, they remain out of scope of the act, which only applies to mental health units that provide inpatient treatment.

Most respondents agreed with the appointment of a ‘responsible person’ who will ensure that mental health units comply with the requirements of the act, but some concerns were raised about accountability and monitoring of this person.

Additionally, some respondents asked for a stronger focus on learning disabilities and autism, in particular with regards to training for staff in this area. We are aware that there are particular considerations and sensitivities involved in caring for autistic people and people with learning disabilities. We will work closely with NHS England and NHS Improvement to ensure services are ready to implement the new guidance, and reduce the inappropriate use of force.

Most individual respondents disagreed that the duty to keep a record should not apply if the use of force is considered negligible within the circumstances set out in the draft statutory guidance. Many respondents felt that all instances in which force is used should be recorded for the protection of both patients and staff. Several respondents felt that the term ‘negligible force’ lacks clarity and is open to a variety of interpretations, with many not certain on what constituted ‘negligible use of force’.

Lastly, most respondents agreed that the statutory guidance emphasises the importance of involving patients, their families and carers in decisions about their own care in mental health units. Several felt that there was insufficient detail on how to implement this guidance, such that it could be open to interpretation. We have revised the guidance to provide the further detail respondents required, details of which are set out in this response.

Next steps

Alongside the publication of the government response to the consultation, we are making commencement regulations in December 2021. In line with administrative good practice, the provisions specified within this legislation will subsequently be brought into force on 31 March 2022 to allow reasonable time for services to prepare for the provisions in the act. We will continue to work with the Home Office, British Transport Police, the Care Quality Commission, NHS Digital, and NHS England and NHS Improvement to finalise system readiness for the final set of requirements to be commenced in May 2022.

The consultation response represents an important step in developing the statutory guidance and ensuring that mental health providers have the necessary directions to applying the act, and, thus, the tools to reduce the inappropriate use of force. The aim of the act is to reduce the use of force on all patients, but, in particular, we aim to reduce the disproportionate use of force on groups who share protected characteristics under the Equality Act 2010.

This act – in parallel with the work being undertaken through the NHS Long Term Plan to expand and transform mental health services, and to invest an additional £2.3 billion a year by 2023 to 2024 – will see people receive the right mental health support in the community and improvements to patient experience where admission to hospital is required.

This act also represents an integral part of our wider reforms to the mental health system. In addition to commencing the Mental Health Units (Use of Force) Act 2018, we are working to reform the Mental Health Act 1983, to give people greater control over their treatment, and help ensure they receive the dignity and respect they deserve. We will work to build the necessary infrastructure to support the roll-out of a number of reforms, and work to promote practical and cultural change across the system, through such initiatives as the Quality Improvement Programme and the Patient and Carer Race Equality Framework.

Introduction

The government is committed to ensuring every individual admitted to a mental health unit is treated with dignity and respect, and in a caring therapeutic environment that is free from abuse.

We know that for people admitted to an acute mental health unit, a therapeutic environment provides the best opportunity for recovery. The government is clear that the use of force should only ever be used proportionately and as a last resort, when all attempts to de-escalate a situation have been employed.

The purpose of the Mental Health Units (Use of Force) Act 2018 is to reduce the inappropriate use of force and increase the oversight and management of the use of force in mental health units. The government will also publish statutory guidance on the use of force in mental health settings for NHS organisations in England, and police forces in England and Wales to ensure that mental health trusts are able to reduce instances of inappropriate use of force.

We ran a public consultation on the draft statutory guidance, and worked closely with stakeholders who held workshops and focus groups on the guidance. We have carefully considered all responses received, especially from those who have personal experience of the use of force in a mental health unit.

This response sets out:

• what we heard from the consultation on the draft statutory guidance
• our response to the points raised
• how we have taken on board feedback as we developed the final statutory guidance, published alongside this consultation response

We will continue to engage stakeholders as we commence the act, and work closely with NHS England and NHS Improvement to ensure services understand their duties and responsibilities in relation to the use of force in mental health units.

How we consulted

This section sets out how we consulted on the Mental Health Units (Use of Force) Act 2018 draft statutory guidance, who responded and who we consulted. The public consultation ran for 12 weeks.

It comprised of:

• an online consultation, open to anyone of any age
• an easy read version of the consultation, open to anyone of any age
• workshops run by Colourful Minds consulting staff working in mental health services, and those with personal experience of mental health services and the use of force from Black and minority ethnic backgrounds

We would like to thank everyone who participated in the consultation for their time and thoughtful input. We would also like to thank the RRN for facilitating a webinar with their membership (including people with personal experience, patients, carers and families, and health professionals) to discuss the negligible use of force.

Who responded

We received an excellent response to the public consultation from individuals and organisations, totalling 421 responses overall.

This was made up of 378 responses (90%) received through the main online consultation and 43 responses (10%) to the easy read consultation. We also received 8 email responses but, since they did not follow the same format as the main consultation, these have not been included in the percentage figures.

For the main online consultation and easy read, around a quarter of all respondents left blank or empty responses, with 87 (21%) left blank overall.

The easy read version of the consultation asked questions in a similar enough way to the main consultation and responses from both sources have been combined across most questions in the analysis. Most email responses did not follow the standard format of the main consultation and so were considered separately from the main consultation.

Each response is taken on face value in that there is no weighting to account for where a response might reflect multiple individuals or organisations.

Totals of percentages may not sum to 100% due to rounding. Additionally, percentages have been based on completed responses, to which blank responses have been removed.

In parallel with the consultation, Colourful Minds ran 2 separate 2.5-hour focus groups: one with 8 people with personal experience of use of force in a mental health unit, and a second with 10 members of staff who have either used force or witnessed the use of force in a mental health unit. The RRN also ran a webinar that was attended by 156 people.

Summary of responses by type

Response type	Number of responses received	Percentage of total responses received (%)
Main response – complete	275	65
Main response – blank	81	19
Main response – individual or organisation only[footnote 1]	22	5
Easy read – complete	36	9
Easy read – blank	6	1
Easy read – individual or organisation only[footnote 1]	1	0

Summary of responses by format

Response format	Number of responses received	Percentage of total responses received (%)
Main response	378	90
Easy read	43	10

Summary of total responses by completeness

Response type	Number of responses received	Percentage of total responses received (%)
Total: complete responses	311	74
Total: blank responses, or individual or organisation only[footnote 1]	110	26

Who we consulted

We drew the consultation to the attention of individuals, organisations and groups that we expected would have an interest in the statutory guidance.

We received 334 online responses from individuals. Most online individual respondents were female (70% of individual responses). Nearly 15% of the responses were from Black, Asian and ethnic minority groups, and 25% of respondents considered themselves to be disabled. Of the online responses received, 26% of respondents indicated that they had personal experience of the use of force in a mental health unit.

We also received 63 online and email responses from various organisations. These organisations spanned a wide range of sectors including:

• charity and non-government bodies
• experts in the field of restrictive interventions
• people with personal experience
• regulators

More information on the breakdown of respondents is included in annex A below.

What you said

Overview

The following sections provide a summary of how people responded to the Mental Health Units (Use of Force) Act 2018 draft statutory guidance consultation questions. We have grouped the comments we received from people who responded to our consultation and we have presented these as broad themes for each consultation question. This section will largely follow the structure of:

• consultation question relating to a particular section of the statutory guidance
• responses to consultation question
• next steps

For the majority of questions in this consultation, the overall response was the same whether responding as an individual or organisation. Where there are differences between responses received from individuals compared with organisations, we have presented this. We have not assigned a weighting where a response might reflect multiple individuals or organisations. Please note that percentages reported in this section will not always add up to 100% due to rounding.

Key definitions (section 1)

Consultation question 1

The statutory guidance sets out some of the key terms used in the act and explains that the act applies to mental health units, including both NHS and independent hospitals providing NHS-funded care.

The terms in the act that are defined in the guidance include:

• ‘mental disorder’
• ‘mental health unit’
• ‘use of force’
• ‘physical restraint’
• ‘mechanical restraint’
• ‘chemical restraint’
• ‘seclusion’
• ‘(long-term) segregation’

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

What you told us in the consultation

The majority of respondents agreed that the guidance was clear on each of the terms specified in section 1 of the statutory guidance, whether responding as an individual or as an organisation.

68% of individuals and 55% of organisations agreed that the guidance was clear on each of the terms. Overall:

• 66% of responses agreed with the definitions of the terms
• 10% disagreed
• 8% were not sure

Points raised from those who commented included:

‘Mental disorder’

Some responses detailed the need to have further clarity on what is meant by ‘mental disorder’ as they felt it can be too broadly interpreted. Points were raised in relation to whether autism and learning disabilities were covered as part of ‘mental disorder’. It was highlighted that this should be made clearer in the statutory guidance.

‘Mental health units’

A few responses highlighted that they felt the definition of ‘mental health units’ was unclear and should have been signposted sooner in the guidance.

‘Use of force’

Responses that focused on the definition of ‘use of force’ wanted better clarity around application of the concept. It was emphasised that it would be helpful to define appropriate force and widen the application of ‘use of force’ to different settings.

The Royal College of Nursing said:

Members feel that the definition of ‘use of force’ would benefit from the inclusion of direction around the ‘type of force’ used, in relation to the age and cognitive development of the person.

Restraint types

Individuals found it challenging to distinguish between physical, chemical and mechanical restraint. It was stated that the definitions of the restraint types (physical, chemical and mechanical) were clear for clinicians but needed to be more accessible to a wider audience, including support workers.

More specifically, some respondents felt confused by the distinction between chemical and mechanical as actions in relation to these restraints can overlap. Some respondents felt this section would benefit from having specific examples, so individuals are able to differentiate between the 2 restraint terms and to understand what restraint methods are permitted.

Additionally, several respondents recommended defining ‘rapid tranquilisation’.

NHS providers said:

Trusts have made some suggestions as to how to clarify some of the terms used in the act. These include defining chemical and mechanical restraint in greater detail to better illustrate all the forms these take – for example, rapid tranquilisation, night-time sedation, and hypnotic medication.

Some have suggested it might also be helpful to add ‘short-term’ segregation to this section of the guidance, and that the definition of seclusion’ can include ‘open-door’ seclusion.

‘Seclusion’ and ‘(long-term) segregation’

Many respondents felt that there needs to be a better distinction between seclusion and segregation, with many querying when seclusion becomes segregation and what timeframe is indicative of each.

On seclusion, it was highlighted that the definition of ‘seclusion’ should include ‘open-door’ seclusion, which is currently used and recorded by providers.

On segregation, it was stated that ‘short-term’ segregation is also currently being used as a form of isolation that is recorded as restrictive practice.

Additionally, given children’s developmental needs, it was also recommended that the guidance distinguishes between children and adults in its definition of ‘long-term’ in ‘(long term) segregation’.

Next steps

We have sought to incorporate the feedback received from the consultation where appropriate to ensure definitions are sufficiently clear to enable the practical application of the act.

We have added to the definitions of the restraint types in the guidance, and provided references to other laws and guidance that look to further illustrate the definitions.

We have also included more detail on the settings that are or are not within the scope of the act, such as Section 135/136 suites where they are located within a mental health unit.

Consultation question 2

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

What you told us in this consultation

Most respondents agreed that the guidance was clear about what settings the act applies to, whether responding as an individual or as an organisation.

68% of individuals and 40% of organisations agreed that the guidance was clear about what settings the act applies to. Overall:

• 63% of responses agreed the guidance was clear
• 7% disagreed
• 10% were not sure

Points raised from those who commented included:

Independent settings

Some respondents were unclear as to whether the act applied to independent hospitals, particularly highlighting the ambiguity around whether the act applies to the entire inpatient population where NHS-funded care is provided, or only to a cohort of patients specifically funded by the NHS.

Special educational settings

Some respondents were unclear if special education settings, like residential schools, were included in the scope of the act. There was a strong indication that respondents wanted this setting added if not already included. It was recommended that the guidance should make it clear if this setting is included or not.

Acute hospitals and A&E

Many respondents felt the guidance did not make clear how and if the act applied in acute hospital settings. It was requested that A&E departments are added to the settings the act applies to.

Concerns raised about the exclusion of A&E departments and why it should be included were detailed as:

• it is a place of safety under the Mental Health Act 1983
• the UK government proposes to extend Mental Health Act 1983 section 5 holding powers to A&E departments

It was emphasised that the exclusion of places of safety (like A&E) from the act would have a disproportionate impact. It was detailed this is because Black people are more likely than White people to come into contact with services via the police.

Mental Health Act 1983 Section 135/136 suites

A large proportion of respondents highlighted that the use of force is often used in Section 135/136 suites and questioned why these were omitted from the act or guidance. Many respondents felt it was unfair to exclude this setting and requested a ‘whole-system approach’ by asking for the addition of Section 135/136 suites.

Sheffield Health and Social Care NHS Foundation Trust said:

We would like to see the guidance be expanded outside of the defined mental health units to cover 135 and 136 and A&E, for example, as we experience the use of force, at times, in these areas of care delivery.

Care homes

Some respondents were not clear if the act applied to those living in residential settings or care homes. If not applicable, respondents would value knowing the reason behind the decision to omit this setting from the act or guidance.

Next steps

All responses have been carefully considered in relation to the inclusion and addition of further settings.

As the act has already been passed and we are confined by its terms, it will remain legally applicable to only mental health units that fall within the definition set out in the act and, as described in the statutory guidance, as a health service hospital or independent hospital in England (or part thereof) that provides treatment to inpatients for a mental disorder.

Section 135/136 suites that are outside of a mental health unit are excluded from the act because they do not come within the definition of providing treatment to inpatients for mental disorders. However, this would not rule out any unit that does meet the definition under the act of a ‘mental health unit’ that is also being used for suite 135/136 assessments in addition to its purpose to provide treatment to inpatients for mental disorders.

Other settings such as care homes and residential settings are out of scope of the act because they do meet the definition set out in the act.

Mental health units to have a responsible person (section 2)

Consultation question 3

The act states that a health organisation operating a mental health unit must appoint a ‘responsible person’ to ensure that the organisation complies with the requirements of the act.

The statutory guidance specifies that:

• this must be a member of staff at an appropriate level of seniority
• the responsible person should attend appropriate training in the use of force
• where the health organisation or trust operates more than one mental health unit, the same responsible person must be appointed in relation to all of the mental health units

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

What you told us in this consultation

Most respondents agreed that the guidance was clear about the role of ‘responsible person’, whether responding as an individual or as an organisation.

66% of individuals and 58% of organisations agreed that the guidance was clear about the role of ‘responsible person’. Overall:

• 64% of responses agreed the role was clear in the guidance
• 8% disagreed
• 8% were not sure

Points raised from those who commented included:

Training or experience

Respondents have strongly agreed that the ‘responsible person’ should receive appropriate training on the use of force. It was suggested that the nature of the training should be standardised. Some respondents felt that the use of ‘appropriate training’ is vague and the guidance should make clear what training is required.

Respondents also stated that it would be useful to have specific examples detailing what level of experience is required, relevant clinical background and what qualification or professional membership the ‘responsible person’ should have. Moreover, respondents felt that a competency framework should be developed for this role – one that is specific to the type of unit, patient population and community for which the ‘responsible person’ will be accountable.

The Care Quality Commission (CQC) said:

The guidance would be strengthened by specifying that the responsible person should have a relevant clinical background, be a member of the appropriate professional organisation and have experience of working in clinical care roles where restraint had been used.

It would also be helpful to include more on the skills and experience necessary in the role and to require a cultural understanding of the community served by the provider.

More detail on role and accountability

Many comments related to requesting additional detail on the accountability of the ‘responsible person’ and how this will be monitored.

Several respondents felt the guidance should include clearer parameters of the role of the ‘responsible person’, including job details and specific responsibilities.

It was also highlighted that it would be beneficial to include what the consequences would be if organisations and the ‘responsible person’ are failing to comply with the Mental Health Units (Use of Force) Act 2018 and statutory guidance, or if they did not follow the duty to have a ‘responsible person’.

The Challenging Behaviour Foundation and Mencap said:

It should be clearer what the consequences of not following the [Mental Health Units] Use of Force Act and statutory guidance is for the responsible person and staff throughout the organisation.

Next steps

We have acknowledged requests for further guidance on the role and training of the ‘responsible person’. We have included further details in the guidance on the skills and experience required by the responsible person, such as:

• experience in clinical roles where the use of force has been used
• requiring the responsible person to have previous experience in children and young people’s services if they work in a children and young people’s mental health unit

However, we believe there should be flexibility for mental health units to tailor the role of their ‘responsible person’ in line with their services, community and patient population.

Consultation question 4

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

What you told us in this consultation

Most respondents agreed that the guidance was clear about the level of seniority that the responsible person must have, whether responding as an individual or as an organisation. 48% of individuals and 55% of organisations agreed that the guidance was clear about the level of seniority that the ‘responsible person’ must have. Overall:

• 49% of responses agreed the guidance was clear
• 23% disagreed
• 9% were not sure

Points raised from those who commented included:

Level of seniority

Many respondents agreed that the ‘responsible person’ must be of an ‘appropriate level of seniority’. However, of those who disagreed, some felt that the ‘level of seniority’ was unclearly defined in the guidance. It was specified that the guidance would benefit from explicitly stating what is meant by ‘appropriate’ and a definition of ‘level of seniority’.

Some respondents felt that the ‘responsible person’ should be appointed on the basis of relevant clinical experience as opposed to the ‘level of seniority’.

Delegation of role

Respondents welcomed the clarification in the guidance that, where a ‘responsible person’ delegates some of their functions, they retain overall accountability for all the functions.

However, there were some concerns around the tasks associated with the ‘responsible person’ being primarily delegated down instead of being mainly kept at a senior level, and that the delegated tasks might not be upheld to the same standard. They recommended that the guidance makes clear the accountability of the ‘responsible person’ and persons delegated to, and that they are responsible for upholding required standards for the delegated tasks.

Moreover, some respondents highlighted that delegated staff should be required to attend the same training as the ‘responsible person’, and receive the same guidance surrounding their role and responsibilities.

Colourful Minds said:

We recommend that some parts of the policy response are not delegated. Particularly understanding why use of force happens in the trust and developing a wider action plan to reduce the appropriate use of force and eradicate inappropriate use of force.

Next steps

All comments have been welcomed and carefully considered in relation to the act and its application. The statutory guidance has been amended to explicitly state that the ‘responsible person’ must be an executive board member and, as previously noted, further detail has been included on the required skills and experience.

We have made it clear in Section 10 of the statutory guidance that the delegation of a function does not affect the responsibility of the responsible person for the exercise of the functions under the act.

Policy on use of force (section 3)

Consultation question 5

The statutory guidance sets out that 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. The guidance specifies what the policy should include (as a minimum), and the considerations that should be taken into account when drafting and publishing the policy, including the importance of consultation with people with personal experience.

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

What you told us in this consultation

Most respondents agreed that the guidance clearly explained what a policy on use of force should include, whether responding as an individual or as an organisation.

55% of individuals and 49% of organisations agreed that the guidance clearly explained what a policy on the use of force should include. Overall:

• 54% of responses agreed the guidance was clear
• 13% disagreed
• 11% were not sure

Points raised from those who commented included:

Policy

Many respondents welcomed that the guidance noted that it is essential that all policies reflect the needs of the patient population using the services and are tailored precisely to the services provided.

Text changes

A number of respondents requested that the wording in section 3 relating to the ‘responsible person’ needing to only “consult with whoever they consider it appropriate to consult” be changed or removed. This is because respondents felt that this wording leaves room for the ‘responsible person’ to neglect consulting widely with patients, their families and carers on the policy if not deemed appropriate.

De-escalation

Many respondents felt that the guidance should state that organisational policies must place emphasis on diversion techniques and de-escalation to avoid the use of force. It was suggested that de-escalation examples should be signposted in organisational policies on the use of force.

Co-production

Many respondents welcomed the inclusion of measures to co-produce the policy with patients, their families and carers. However, some respondents felt this wasn’t clearly set out in the guidance.

These respondents suggested that a stronger emphasis should be placed in the statutory guidance to ensure those with personal experience and their families are involved in the co-production of policies, but also play a key role in providing feedback throughout the lifetime of the policy.

Additionally, it has been suggested that patient safety committees or groups be considered when reviewing the policy to ensure patient voices are captured.

Mind said:

We’re concerned that, despite the content about the importance of co-production, the guidance leaves latitude for the responsible person not to consult with current and former patients, bereaved families, and any relevant local third-sector organisations.

Additions to the policy

Many respondents felt the guidance should include how often policies on the use of force should be reviewed and what the consequences are for inappropriate use of force.

Additionally, some respondents also felt it would be beneficial to have a universal standard template for the policy to ensure consistency across units.

Likewise, a small number of respondents specified that it would be useful to state in the guidance that policies on the use of force should include instructions on complaints procedures for patients, carers and independent advocates to raise issues.

Furthermore, some respondents stated the guidance should be changed to make it a requirement – rather than ‘good practice’ – for post-incident review data, investigation and inquest findings, and coroner’s prevention of future death reports to be analysed to regularly update the policy on use of force.

Moreover, respondents also requested that it should be made explicit that policies should be tailored to the needs of people from Black and minority ethnic backgrounds.

Next steps

Appeals for clarity have been factored into the revised statutory guidance and requests for additional requirements for the policies on the use of force have been considered.

We have included more detail on things that should be included within the policy, such as:

• ending the disproportionate use of force and discrimination against people sharing certain protected characteristics under the Equality Act 2010
• the fact that staff have a duty to be alert to abuse and the misuse of force, and report them In addition, we have explicitly referenced that the policy should acknowledge the impact the use of force has on staff and how they can be supported, and that the policy should include details of the roles and responsibilities of staff and the police, if the police are called into a mental health unit to assist staff in the management of a patient

Organisations also have a duty under the Mental Health Act 1983: code of practice to support patients and their nearest relatives to make complaints. Therefore, we have looked to state explicitly in the guidance that the policy on the use of force must include the organisation’s complaints procedure.

We welcome the fact that the majority of respondents agree that policies on the use of force should be reflective of the patient population, service provider and the community where it resides. Although we are unable to provide specific sections under each heading relating to different patient populations, we have been clear that all policies should be inclusive and tailored to its users.

Information about use of force (section 4)

Consultation question 6

The statutory guidance sets out the statutory duty to publish and provide patients, and other people considered appropriate, with information about the use of force, and the patient’s rights in relation to the use of force which may be used by staff in a mental health unit. This section of the guidance sets out what this information is expected to include (as a minimum), who should be consulted in its development and how it should be disseminated. This includes the expectation for responsible persons to take whatever steps are reasonably practicable to make sure patients are aware of the information and understand it.

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

What you told us in this consultation

Most respondents agreed that the guidance clearly explains what information should be given to patients on the use of force, whether responding as an individual or as an organisation.

54% of individuals and 56% of organisations agreed the guidance clearly explains what information should be given to patients on the use of force. Overall:

• 54% of responses agreed the guidance was clear
• 13% disagreed
• 11% were not sure

Points raised from those who commented included:

Use of standard templates

A few respondents highlighted that it would be beneficial to have a national standardised template for the information that needs to be shared with patients to avoid variability in how and what information is provided.

Patient accessibility and modes of delivery

Several respondents expressed their concerns about how the information on the use of force would be delivered to patients, as it was not explicitly addressed in the guidance. Many relayed that the information must be provided in various accessible formats in order to ensure the information was accessible and correctly understood by patients. It was requested that information should:

• be available in multiple languages, including British Sign Language and Makaton
• have multiple modes of delivery, including verbal communication and written communication through printed hardcopies and online accessible versions
• be age and developmentally appropriate, particularly for children and young people Some respondents also suggested that there should be a stronger focus in the guidance on the role of an independent advocate, particularly in the communication of information on the use of force to patients.

The National Institute for Health and Care Excellence said:

Support people’s communication and information needs in line with NHS England’s Accessible Information Standard. This could also include seeking advice from, or referring people to, a speech and language therapist whenever needed; providing an independent interpreter (that is, someone who does not have a relationship with the person) so that people can communicate in their first language; finding out before an appointment how the person prefers to communicate and receive information; extending appointment times to give more time for discussion; and giving people written information (such as appointment letters and reminders) in different languages or in an accessible format of their choice, for example easy read, audio books, films or by using online resources such as specialist learning disability websites.

Additions to the information provided to patients

Some respondents expressed that it would be advantageous for the guidance to indicate that information should be provided to patients about what to expect post-incident from clinicians.

Moreover, respondents felt that, as part of the regular review of information provided about the use of force, a process of collecting, analysing and acting on patient and public feedback about the information should be detailed as part of the guidance.

Additionally, the complaints process should be clearly highlighted to patients during the process of communicating information on the use of force. Respondents felt that the guidance should make clear that information should be provided about the role of local authorities and Safeguarding Adults Boards in responding to a concern that an incident of use of force may involve abuse or neglect, and about how to refer an adult safeguarding concern to the relevant local authority. Likewise, respondents felt it would be beneficial to, in addition to the organisation’s complaints procedure, add reference to the whistleblowing process and Freedom to Speak Up Guardians.

NHS providers said:

It might be beneficial to add a reference to whistleblowing processes and Freedom to Speak Up Guardians. This would be in addition to an organisation’s complaints procedure in order to be more robust and help to mitigate cultures of poor practice in isolated services.

Next steps

The DHSC will not be providing a standardised template for the information that should be provided to patients and their carers on the use of force. Flexibility is needed to allow mental health units to tailor and co-produce, alongside those with personal experience and their families and carers, the information provided to patients on the use of force, in accordance with its services and its patient population.

We are encouraged that respondents have highlighted important points on the deliverability and accessibility of information on the use of force to patients. We strongly encourage mental health units to factor these comments into their planning and highly recommend organisations produce information that is accessible in various modes of delivery, for example, British Sign Language, written communication and easy read formats.

We have also provided further detail on the role of advocates in helping to communicate the information to patients, and that it is important to collect continual feedback from patients, their families and carers about the information, and how this should be used to update and review the information about the use of force.

Training in appropriate use of force (section 5)

Consultation question 7

The responsible person must arrange for training to be provided to staff about the use of force by staff who work in the mental health unit. For each of the topic areas that must be included in staff training the statutory guidance sets out examples of what should be covered in each of those topic areas (as a minimum). The guidance also sets out training requirements for new members of staff and refresher training requirements.

Does the guidance clearly explain the requirements for training on the use of force?

What you told us in this consultation

Most respondents agreed that the guidance clearly explains the requirements for training on the use of force, whether responding as an individual or as an organisation.

57% of individuals and 45% of organisations agreed the guidance clearly explains the requirements for training on the use of force. Overall:

• 55% of responses agreed the guidance is clear
• 14% disagreed
• 8% were not sure

Points raised from those who commented included:

Delivery of training and guidelines

Some respondents stated that organising adequate orientation and training can be difficult, particularly for temporary or agency staff, and often the training shows no tangible improvement to staff behaviour. It was suggested that it would be beneficial to develop a competency framework that has to be achieved by those that attended training, allowing a more practical way to assess the development of the skills learnt on the training course. Respondents felt that the guidance should detail what constitutes an ‘adequate standard’ of training, and list training types that are licensed and approved under the act.

Additionally, several respondents requested clarity surrounding when the training should be delivered: annually or as a one-off. Respondents also requested that the guidance should include a deadline for introducing training and interim measures while staff are awaiting training, and specify the regularity of training.

Many respondents welcomed that the guidance has made clear that training on the use of force must use a training provider who is certified as being compliant with the RRN National Training Standards.

Additions to the training

Many respondents felt that training for staff should include specific training on autistic people and those with learning disabilities, their sensory needs, and why they struggle to express their thoughts and feelings. Respondents felt training must cover a range of health needs people may have that may put them at additional risk of harm from the use of force.

Additionally, several respondents specified that there should be specific training on the needs of individuals from Black and minority ethnic backgrounds.

The Agenda Alliance said:

We are concerned that the training of staff only needs to be provided ‘as soon as reasonably practicable’. The guidance should include a deadline for introducing training and there should be interim measures in place for staff working while awaiting training. There should also be a requirement in the guidance for staff to take refresher courses in training.

Finally, we share concerns with colleagues in the sector that the standards of training should be independently monitored, rather than being monitored by the responsible person in a mental health trust. There should be further detail in the guidance on what the ‘adequate standard’ of training is.

Next steps

NHS England and NHS Improvement has been working with NHS providers and the RRN to ensure all training providers are compliant with the RRN National Training Standards. The RRN National Training Standards have been developed to ensure coverage of all the requirements set out in the act and statutory guidance.

We have looked to clarify the requirements of training in the statutory guidance, including what the reasonable timeframe is for delivering training to staff. All staff starting a new role should complete training as part of their induction and before working on the ward. Staff should not be involved in the use of force on patients if they have not been trained.

Recording of use of force (section 6)

Consultation question 8

The statutory guidance sets out the requirements for the responsible person to keep a record of any use of force on a patient by staff who work in the mental health unit. The requirements are set out in detail in the act and cover the information that must be recorded locally (as a minimum).

The duty to keep a record does not apply if the use of force is negligible. The statutory guidance sets out the very small set of circumstances in which the negligible use of force would apply.

Does the guidance clearly explain what information should be recorded when force is used on a patient?

What you told us in this consultation

Most respondents agreed the guidance clearly explains what information should be recorded when force is used on a patient, whether responding as an individual or as an organisation.

57% of individuals and 49% of organisations agreed the guidance clearly explains what information should be recorded when force is used on a patient. Overall:

• 55% of responses agreed the guidance is clear
• 12% disagreed
• 11% were not sure

Points raised from those who commented were mainly around the recording of negligible force, and the staff commitment necessary to record the use of force. For clarity, this has been reflected under consultation question 11 (below).

We also received comments around ensuring that the guidance is clear on the recording of serious injuries within mental health units.

Next steps

Next steps have been detailed alongside comments under consultation question 11 for clarity. The guidance now provides more clarity on what constitutes a serious injury for the purposes of recording under the act.

Consultation questions 9 and 10

The draft statutory guidance set out that the use of force can never be considered as negligible in the following circumstances:

• any form of chemical or mechanical restraint is used
• the patient verbally or physically resists the contact of a member of staff
• a patient complains about the use of force either during or following the use of force
• someone else complains about the use of force
• the use of force causes an injury to the patient or a member of staff
• more than one member of staff carried out the use of force

We asked whether you agree or disagree with the list of circumstances in which the use of force can never be considered negligible, and whether there is anything else that should be added to the list.

What you told us in this consultation

On question 9, most respondents agreed with the list, whether responding as an individual or as an organisation.

50% of individuals and 40% of organisations strongly agreed or agreed with the list. Overall:

• 49% of responses strongly agreed or agreed with the list
• 14% strongly disagreed or disagreed
• 7% were not sure

On question 10:

• 20% of individuals and 22% of organisations indicated something should be added to the list
• 30% of individuals and 16% of organisations were not sure
• 20% of individuals and 25% of organisations indicated ‘No’

Points raised from those who commented included:

Level of detail

While overall most respondents agreed with the list of circumstances in which the use of force can never be considered negligible, some who commented thought that the list needed to be more detailed to:

• minimise subjectivity and ambiguity
• factor in a range of specific contexts, such as the age and ethnicity of the patient and whether they have previously experienced violence or abuse Several respondents felt that the list needed to be clearer about the use of force for personal care, including where the patient has requested it

Mind said:

We don’t think that ‘negligible force’ is a helpful or even valid concept. The words are incompatible, and the term almost invites those exercising force to underestimate what force is and negates the experience of those subject to force – who, in the end, are the only arbiters of what is and isn’t negligible.

Respondents also gave specific examples of uses of force or situations that they felt should be included in the list, such as:

• where the use of force results in the patient experiencing pain or distress
• further examples of physical restraint (such as use of any flat surface as part of the restraint)
• threats to use force
• cases where the patient asks not to be touched before the use of force happens
• any use of force carried out by a male staff member on a female patient
• withholding privileges
• segregation and seclusion
• sleep deprivation

Patient experience

There was strong support for putting emphasis on the patient’s own experience and the impact on them in deciding whether the use of force is negligible, but some felt that the list did not sufficiently factor this in. For example, some thought that the list should take into consideration that some patients may not outwardly express their distress, may be non-verbal or have specific ways of communicating. Several responses were concerned about how this list may be used in cases where the patient lacks capacity.

The Challenging Behaviour Foundation and Mencap said:

Guidance should explicitly note the need to take into account a patient’s communication needs when establishing whether a ‘patient complains about the use of force either during or following the use of force’ or whether ‘the patient verbally or physically resists the contact of a member of staff’.

Given the communication needs of patients with learning disabilities and autistic patients, it may not be sufficient to note only whether they complain or verbally resist, and employment of a more complete behavioural and communicative assessment may be needed to establish whether behaviour is used to communicate discomfort.

Next steps

The negligible use of force section of the guidance has been revised to reflect the consultation comments and reach a compromise with regards to recording the negligible use of force.

Further detail has been added on when the use of force could be considered negligible and sets out the specific criteria, and further clarity has been added to the list of circumstances when the use of force could never be considered negligible.

Any use of force which meets the criteria for negligible use of force set out in the statutory guidance must be included within the patient’s care plan and recorded proportionately. If the same routine negligible use of force is identified in relation to a patient, this must be subject to a restraint reduction plan, which should include the justification for the continued use of the routine negligible use of force.

Consultation question 11

We asked whether you agree or disagree that the duty to keep a record should not apply if the use of force is negligible, as defined in the guidance.

What you told us in this consultation

Most individual respondents strongly disagreed or disagreed that the duty to keep a record should not apply if the use of force is negligible, as defined in the guidance. Among organisations, there was an even split between whether they strongly agreed or agreed and strongly disagreed or disagreed.

50% of individuals and 24% of organisations strongly disagreed or disagreed that the duty to keep a record should not apply if the use of force is negligible. Overall:

• 21% of respondents strongly agreed or agreed that the duty to keep a record should not apply if the use of force is negligible, as defined in the guidance
• 46% strongly disagreed or disagreed
• 10% were not sure

Points raised from those who commented included:

Negligible use of force

While overall responses agreed the guidance was clear, several respondents felt that the term ‘negligible force’ lacked clarity and was open to a variety of interpretations, with many not certain what constituted a ‘negligible use of force’.

Some respondents felt that the guidance should make clearer what is meant by the ‘use of force’, particularly in relation to the ‘negligible use of force’. It was suggested that examples should be included in this section to reduce the risk of inconsistent approaches across mental health units.

RRN said:

A definition and clarity surrounding terminology is essential. Well-defined restrictive practice terminology is frequently misunderstood. We have heard examples of obvious uses of restrictive practices being misrepresented and given euphemisms – such as ‘removal rooms’ and ‘calming rooms’ instead of ‘seclusion’ or ‘long-term segregation’.

‘Negligible force’ must be clearly defined and the definition as easily understandable as possible.

All uses of force should be recorded

Many respondents felt that all instances in which force is used should be recorded for the protection of both patients and staff. It was recognised that this may put extra burden on staff, though it was suggested this would be minimal. Concerns were raised that if negligible uses of force as defined in the guidance were not recorded, this could open a loophole through which cases may be missed that should have been recorded.

Examples given by respondents included:

• purposeful omission by staff
• cases that may be open to interpretation
• cases where the patient’s view of the situation differs from that of staff
• cases where the patient is unable to communicate their distress either due to the patient’s difficulties with communication or fear of retaliation

Several respondents felt that recording all uses of force could also be useful for other reasons such as:

• building up an understanding of the patient, and what they are and are not comfortable with
• to refer to if the patient complains about the incident later
• for spotting patterns in the ‘negligible’ use of force
• for staff training

Rethink Mental Illness said:

We remain concerned that negligibility remains a loophole through which staff and services could potentially avoid scrutiny for the use of force. Rethink Mental Illness recommends amendment to the Mental Health Units (Use of Force) Act to remove the negligibility loophole.

Burden on staff

Some respondents thought that there could be negligible uses of force that are not recorded in order to minimise time spent on paperwork rather than caring for patients – for example, in cases where the use of force has been pre-agreed. Several respondents who disagreed or were unsure felt that the negligible use of force should be recorded, but that this could be included in the patient’s notes as a minimum rather than in a more formal report.

The Royal College of Psychiatrists said:

Given the wide definitions in some cases, members have raised concerns around the significant amount of increased administrative burden caused by more detailed record-keeping, especially if the definition of restraint is so broad, and includes regular and routine activities. This could impact on time available to provide quality care to individuals.

Next steps

We acknowledge that several respondents requested that all force should be recorded, even when considered ‘negligible’. We took on board this feedback and agreed with proposals put forward following stakeholder engagement work.

As noted under consultation questions 9 and 10 above, any use of force that meets the criteria for negligible use of force set out in the statutory guidance must be included within the patient’s care plan and be recorded proportionately. If the same routine negligible use of force is identified in relation to a patient, this must be subject to a restraint reduction plan, which should include the justification for the continued use of the routine negligible use of force.

Investigation of deaths or serious injuries (section 9)

Consultation question 12

The statutory guidance sets out that (where appropriate) deaths and serious injuries that occur in a mental health unit are investigated thoroughly with the involvement of the family in a transparent manner (regardless of there being any use of force or not). Investigations should be independent of those involved in the incident, timely and of good quality, and ensure that lessons are learned to drive improvements in patient safety and prevent such incidents from happening again.

The responsible person must have regard to existing relevant guidance on what should happen when a patient dies or suffers a serious injury in a mental health unit that is published by the following organisations:

• CQC
• Monitor
• NHS Commissioning Board
• NHS Trust Development Authority
• a person prescribed by regulations made by the Secretary of State

We asked you whether the guidance clearly explains what should happen following a serious injury or death in a mental health unit.

What you told us in this consultation

Most respondents agreed that the guidance clearly explains what should happen following a serious injury or death in a mental health unit, whether responding as an individual or as an organisation.

61% of individuals and 51% of organisations agreed that the guidance clearly explains what should happen following a serious injury or death in a mental health unit. Overall:

• 59% of responses agreed the guidance is clear
• 8% disagreed
• 9% were not sure

Points raised from those who commented included:

Accountability and transparency

Some respondents felt that the guidance could be clearer with regards to accountability and consequences. Several stressed the importance of avoiding a culture of blame, as this may prevent reports from being filed and hinder learning. There was general support for a transparent process that closely involves the patient’s family.

Independent investigations

Respondents also felt that the guidance could include more details of how independent investigations should be carried out, by whom, and how to ensure that the investigation is sufficiently independent and thorough. Several respondents specifically stated that investigations should be independent from the institution and NHS trust or independent provider where the injury or death happened, otherwise they will be investigating their own staff.

The Independent Advisory Panel on Deaths in Custody said:

The current guidance needs to be much more robust in ensuring that an investigation following a death is done so with a level of hierarchical independence from the care trust or provider associated with the death. This would improve public confidence, the quality of the investigation and the breadth of future learning.

Links to other guidance

Some requested that the guidance go beyond signposting to other legislation and guidance, for example around workplace deaths and safeguarding, and explain the procedures more clearly.

Several respondents specifically asked for an explanation of how the guidance works alongside Learning from lives and deaths – People with a learning disability and autistic people (LeDeR), a service improvement programme that looks at the lives of people with learning disabilities and autistic people who died, and finds out about the health and social care services that they received throughout their lives.

Rethink Mental Illness said:

Overall, we feel that further explanation of the investigative process, including reference to the potential outcomes and redress that could be expected, would be more helpful. Flowcharts or visual explanation of these separate processes could also be of some use in further clarifying the distinct processes for lay audiences.

Next steps

All comments and suggested additions have been carefully considered. The DHSC will continue to work with partners across government to improve how the NHS learns from serious incidents and deaths.

Summary questions

The following questions were set out as a series of statements. We asked respondents to answer how far they agreed with each statement.

Consultation question 13

We asked you whether the guidance clearly sets out the requirements of the act for mental health units.

What you told us in this consultation

Most respondents agreed that the guidance clearly sets out the requirements of the act for mental health units, whether responding as an individual or as an organisation.

61% of individuals and 55% of organisations strongly agreed or agreed that the guidance clearly sets out the requirements of the act for mental health units. Overall:

• 60% of responses strongly agreed or agreed that the guidance clearly sets out the requirements of the act for mental health units
• 11% strongly disagreed or disagreed
• 5% were not sure

Points raised from those who commented included:

More detail and clarity

As noted throughout this consultation response, there are several areas where respondents generally felt there could be more detail and clearer definitions. For example, several respondents asked for clearer definitions of ‘chemical restraint’ and ‘restrictive practices’, and were concerned about misinterpretation of the term ‘negligible use of force’.

The National Autistic Society said:

It would be useful if case studies could be included to illustrate when the use of restraint is justified and appropriate.

Guidance should ensure the principles of STOMP-STAMP are followed and include information on what is considered ‘least restrictive’. For instance, chemical restraint could be considered less restrictive because it requires less consistent physical force to be applied to someone. However, it could also be considered more restrictive because it not only limits someone’s movement but also limits their ability to communicate or may have side effects. This requires clarification.

These issues would be best resolved through training that explains these terms, as well as setting out possible decision-making procedures to weigh these different factors up.

Links to other laws and guidance

Some thought that it could be clearer how the guidance interacts with non-statutory guidance as well as other legislation and common law.

Context of the individual

Many respondents said that the guidance should more explicitly factor in patients’ individual circumstances, including ethnicity, sex, age, whether the person is autistic or has a learning disability, and the importance of trauma-informed responses.

Implementation

Many respondents who agreed that the guidance was clear also stressed the need to ensure that it is followed in practice, backed up by regular, high-quality training for all relevant staff.

Linked to this, people commented that several elements of the guidance, such as trauma-informed and human rights approaches, should be explained in a more practical way and illustrated using case studies.

Next steps

Many of these comments have been reflected by respondents in earlier questions and, where possible, we have taken on board recommendations to ensure the statutory guidance provides the clarity necessary for organisations to comply with the act accordingly.

Consultation question 14

We asked you whether you thought that the guidance seeks to reduce and minimise the use of force in mental health units.

What you told us in this consultation

Most respondents agreed that the guidance seeks to reduce and minimise the use of force in mental health units, whether responding as an individual or as an organisation.

58% of individuals and 51% of organisations strongly agreed or agreed that the guidance seeks to reduce and minimise the use of force in mental health units. Overall:

• 57% of responses strongly agreed or agreed that the guidance seeks to reduce and minimise the use of force in mental health units
• 12% strongly disagreed or disagreed
• 8% were not sure

Many respondents chose to reiterate some of the points raised in previous questions. This includes references to training and accountability, de-escalation and negligible use of force. All comments have been accounted for and reflected under other relevant sections.

Next steps

For specific points raised around:

• training and accountability – see consultation question 7 in section 5
• de-escalation and negligible use of force – see consultation questions 9 and 10 in section 6

Consultation question 15

We asked you whether the guidance makes it clear that force should only be used proportionately as a last resort.

What you told us in this consultation

Most respondents agreed that the guidance makes it clear that force should only be used proportionately as a last resort, whether responding as an individual or as an organisation.

58% of individuals and 55% of organisations strongly agreed or agreed that the guidance makes it clear that force should only be used proportionately as a last resort. Overall:

• 57% of responses strongly agreed or agreed that the guidance seeks to reduce and minimise the use of force in mental health units
• 14% strongly disagreed or disagreed
• 5% were not sure

Points raised from those who commented included:

Earlier reference

While respondents generally agreed with the statement, some felt that this intention needs to be made more explicit earlier in the guidance.

Clearer definitions and context

Others felt that the terms ‘last resort’ and ‘proportionate’ should be defined in more detail, factor in the patient’s perspective and personal context, and be backed up by case studies.

Alternatives to force

Some respondents also felt that there needs to be a greater focus on alternatives to the use of force.

Article 39 said:

When restraint or seclusion is used, there is often no verbal de-escalation. No alternative measures were used to support the patient before resorting to restraint. The policy on the use of force should emphasise putting the patient first and how to help them feel safe. The policy could include practical examples and suggestions that calm situations.

These are things that can help: thinking about how the child or young person communicates; using sensory experiences (experiences related to the senses of touch, smell, taste, sight and hearing); offering to go for a walk outside with a patient; offering to go for a one-to-one to discuss what the patient is feeling at that moment; thinking about what the children and young people would enjoy [and what might make them happy; and having environments that are welcoming and comfortable.

Next steps

All comments have been welcomed and considered against the application of the act. We have included a greater emphasis that the use of force should only be used as a last resort and should be proportionate to the risk posed.

Consultation question 16

We asked you whether the guidance appropriately explains the different approaches required when caring for children and young people and adults.

What you told us in this consultation:

Most respondents agreed that the guidance appropriately explains the different approaches required when caring for children and young people and adults, whether responding as an individual or as an organisation.

48% of individuals and 35% of organisations strongly agreed or agreed that the guidance appropriately explains the different approaches required when caring for children and young people and adults. Overall:

• 46% of responses strongly agreed or agreed that the guidance appropriately explains the different approaches required when caring for children and young people and adults
• 15% strongly disagreed or disagreed
• 16% were not sure

Points raised from those who commented included:

Approach for children and young people

Several respondents commented that the guidance is clear that there should be different approaches for children and young people, but that it does not go into enough detail about how the approach should be different. Some thought that there should be separate guidance to explain this more clearly. It was recommended that the guidance is amended to explain the implications of the use of force for children and how the legislation applies to them.

The CQC said:

The guidance clearly states that different approaches should be considered for children but does not suggest what that would mean in practice. For example, the guidance could have been used to delineate forms of restraint that shouldn’t be used on children, or to recommend additional procedural safeguards.

Person-centred approach

Some felt that the guidance should focus on taking a person-centred approach rather than an age-based approach, while others supported an age-sensitive approach alongside this, noting the long-term effects that use of force can have on everyone, especially children and young people.

Next steps

We acknowledge that some respondents would value having separate guidance for children and young people while, on the other hand, some believe that the guidance should shift to a person-centred approach rather than being aged-based.

We are strongly of the belief that the focus needs to shift to one that:

• respects all patients’ rights
• provides skilled, trauma-informed, person-centred care
• follows the principle of least restriction
• promotes recovery

Policies, training and information provided to patients should be inclusive and reflective of the patient population of each mental health unit and its services, including providing specific guidance for children and young people where the approach is different.

Consultation question 17

We asked you whether the guidance clearly outlines the need to consider those with protected characteristics under the Equality Act 2010 when fulfilling the requirements of the act.

What you told us in this consultation

Most respondents agreed that the guidance clearly outlines the need to consider those with protected characteristics under the Equality Act 2010 when fulfilling the requirements of the act, whether responding as an individual or as an organisation.

53% of individuals and 55% of organisations strongly agreed or agreed that the guidance clearly outlines the need to consider those with protected characteristics under the Equality Act 2010 when fulfilling the requirements of the act. Overall:

• 54% of responses strongly agreed or agreed that the guidance clearly outlines the need to consider those with protected characteristics under the Equality Act 2010 when fulfilling the requirements of the act
• 10% strongly disagreed or disagreed
• 12% were not sure

Points raised from those who commented included:

Proactive commitments

Several respondents felt that the guidance needs to go further to make more general and specific commitments to tackling disproportionality and discrimination. Some felt that the guidance could require remedial action to address evidence of disproportionate use of force and discrimination.

The Association for Young People’s Health said:

We recommend that the guidance also includes inclusion health groups, a term used by NHS England to describe all people who are socially excluded. Considering both protected characteristics and inclusion health groups would provide a more comprehensive list of groups who may be more likely to experience use of force and subsequent harm as a result of the restraint procedure.

Next steps

We strongly believe that mental health units can play a key role in tackling disproportionality and discrimination. Particular to Seni Lewis’ experience and evidence from data, we know that certain groups who share protected characteristics under the Equality Act 2010 are more likely to experience the disproportionate use of force. The reasons for this are multiple and complex, and we recognise that we have further work to do in order to understand them better.

We have been clear in the guidance that all mental health units are expected to set out what steps will be taken to reduce the use of force, which in turn will also tackle the disproportionate use of force on all patients and in particular those who share protected characteristics under the Equality Act 2010.

Consultation question 18

We asked you whether you think that the guidance emphasises the importance of involving patients, their families and carers in decisions about their own care.

What you told us in this consultation

Most respondents agreed that the guidance emphasises the importance of involving patients, their families and carers in decisions about their own care units, whether responding as an individual or as an organisation.

62% of individuals and 53% of organisations strongly agreed or agreed that the guidance emphasises the importance of involving patients, their families and carers in decisions about their own care units. Overall:

• 60% of responses strongly agreed or agreed that the guidance emphasises the importance of involving patients, their families and carers in decisions about their own care units
• 10% strongly disagreed or disagreed
• 7% were not sure

Points raised from those who commented included:

More detail on involvement

Several respondents felt that there was insufficient detail on how to effectively involve patients, families and carers in decisions. There were many concerns that this will not happen in practice, and that the language is not strong enough to ensure that this happens. Some respondents agreed but felt that the guidance did not sufficiently address how to deal with situations in which it may not be possible to involve these groups, such as in urgent decisions.

INQUEST said:

We believe the guidance needs to be stronger in ensuring patients’ families are consulted on the policy on the use of force and the published information regarding use of force. We believe the guidance should remove the wording that the RP [responsible person] need only ‘consult with whoever they consider it appropriate to consult’.

Next steps

All comments were welcomed and considered. After careful review, we believe the statutory guidance currently reflects our strong position in relation to the importance of the involvement of patients and their family and carers in decisions about their own care, but we have provided further clarity where appropriate.

For example, we have made it clear that the policy developed by each organisation should include details on how to involve families or carers of the patient while, at the same time, recognising that there may be circumstances where it could be harmful to involve families or carers (for example, for patients who are survivors of domestic abuse).

Annex A: consultation demographics

Overview of responses

Overall, there were 421 responses to the main consultation: 378 (90%) from the main consultation and 43 (10%) from the easy read version. We also received 8 email responses but, since these did not follow the same format as the main consultation, these have not been included in the percentage figures.

Around a quarter of all respondents were blank or empty responses: 87 (21%) were blank overall and a further 23 (5%) only indicated they were an individual or organisation.

The easy read version of the consultation asked questions in a similar enough way to the main consultation and responses from both sources have been combined across most questions in the analysis. Most email responses did not follow the main consultation standard format and so were considered separately from the main consultation.

Each response is taken on face value in that there is no weighting to account for where a response might reflect multiple individuals or organisations.

Totals of percentages may not sum to 100% due to rounding.

For a breakdown of responses by questionnaire type, format and completeness, see ‘Who responded’ (under ‘How we consulted’ above).

Are you responding as an individual or an organisation?

Of 421 responses received, 87 (21%) were totally blank. Of the remaining 334:

• 277 (83%) were from an individual
• 55 (16%) were from an organisation
• 2 (1%) were not stated.

The 2 ‘not stated’ responses have been combined with the individual responses in subsequent analyses, giving 279 responses treated as from individuals.

Number of responses by individuals and organisations

Respondent type	Number of responses received	Percentage of total responses received (%)
Individual	277	83
Organisation	55	16
Not stated	2	1

Individual demographics

The demographics of the respondents are presented below. These mainly pertain to those responding as individuals.

Age of respondent

Of the 279 individual responses:

• 9 responses (2%) were received by people aged under 25
• 53 were from people aged 25 to 39 (20%)
• 57 from people aged 40 to 49 (14%)
• 79 from people aged 50 to 59 (19%)
• 64 from people aged 60 or over (15%)

17 respondents did not specify their age.

Number of respondents by age group

Age group	Number of respondents	Percentage of total respondents (%)
18 to 24	9	2
25 to 29	18	4
30 to 39	35	8
40 to 49	57	14
50 to 59	79	19
60 to 69	49	12
70 and above	15	4
Missing	17	4

Sex of respondent

In terms of sex of the respondents, of the 279 individual responses:

• 195 respondents (70%) were female
• 67 were male (24%)
• 17 did not specify (6%)

Number of respondents by sex

Sex	Number of respondents	Percentage of total respondents (%)
Male	67	24
Female	195	70
Missing	17	6

Is the gender you identify with the same as your sex registered at birth?

Respondents were also asked whether the gender they identified with was the same as their sex registered at birth. Of the 279 individual responses:

• 256 respondents (92%) indicated that their gender was the same as their sex registered at birth
• 3 indicated it wasn’t (1%)
• 20 did not specify (7%)

Number of respondents by response to the question: Is the gender you identify with the same as your sex registered at birth?

Response	Number of respondents	Percentage of total respondents (%)
Yes	256	92
No/other	3	1
Missing	20	7

Ethnicity of respondent

In terms of ethnicity of the respondents, of the 279 individual responses:

• 211 respondents (76%) indicated that they were ‘White or White British’
• 6 were ‘Asian or British Asian’ (2%)
• 20 were ‘Black, African, Caribbean or Black British’ (7%)
• 15 indicated ‘mixed or multiple ethnic groups’ (5%)
• 8 indicated ‘prefer not to say’ (3%)
• a further 19 did not specify (7%)

Number of respondents by ethnicity

Ethnicity	Number of respondents	Percentage of total respondents (%)
White/White British	211	76
Asian/British Asian	6	2
Black/African/Caribbean/Black British	20	7
Mixed/Multiple ethnic groups	15	5
Prefer not to say	8	3
Missing	19	7

Disability

In terms of disability, of the 279 individual responses:

• 189 respondents (68%) did not consider themselves to be disabled
• 71 (25%) indicated they were disabled
• 19 did not specify (7%)

Number of respondents by response to the question: Do you consider yourself to be disabled?

Response	Number of respondents	Percentage of total respondents (%)
Yes	71	25
No	189	68
Missing	19	7

Whether responding as a healthcare professional or not

Of the 279 individual responses:

• 183 respondents (66%) indicated they were not responding as a healthcare professional
• 81 indicated they were a healthcare professional (29%)
• a further 15 did not specify (5%)

Number of respondents by response to the question: Are you responding as a healthcare professional?

Response	Number of respondents	Percentage of total respondents (%)
Yes	81	29
No	183	66
Missing	15	5

Whether the respondent works for the NHS

Of the 279 individual responses:

• 202 respondents (72%) indicated they did not work for the NHS
• 61 indicated they did work for the NHS (22%)
• a further 16 did not specify (6%)

Number of respondents by response to the question: Do you work for the NHS?

Response	Number of respondents	Percentage of total respondents (%)
Yes	61	22
No	202	72
Missing	16	6

Whether the respondent has lived experience of use of force in a mental health unit

Of the 279 individual responses:

• 171 respondents (61%) indicated they did not have lived experience of use of force in a mental health unit
• 17 indicated ‘not applicable’ or preferred not to say (6%)
• 73 (26%) indicated they did have lived experience of use of force in a mental health unit and/or being a patient in a mental health unit
• a further 18 did not specify (6%)

Number of respondents by response to the question: Do you have lived experience of being subject to the use of force in a mental health unit and/or being a patient in a mental health unit?

Response	Number of respondents	Percentage of total respondents (%)
Yes	73	26
No	171	61
Prefer not to say	12	4
Not applicable	5	2
Missing	18	6

Responses from organisations

Organisations

Responses were received from the following types of organisation:

• voluntary and charitable sector – representing people from Black and minority ethnic groups, children and young people, women and girls, faith groups, and people with autism and learning disabilities
• NHS and NHS foundation trusts
• health regulators
• local Healthwatch
• independent government advisory panels
• professional bodies
• the Royal Colleges

Lived experience

26% of the 279 individuals responding indicated they had lived experience of use of force, while 67% indicated they did not or prepared not to say and 6% were missing.

The sex and ethnic profiles of those with lived experience of use of force were broadly similar to all individual respondents.

About three quarters were female (73%) and one quarter male (26%), and 1% didn’t specify. This was similar to the gender of those without lived experience (or preferred not to say) –female (74%), male (26%) and 0% didn’t specify.

There was a similar profile by ethnicity among those with lived experience of use of force or not.

Ethnicity distributions of those with lived experience of use of force and those without

Ethnicity	Percentage of respondents that reported lived experience (%)	Percentage of respondents that did not report lived experience (%)
White/White British	79	81
Asian/British Asian	0	3
Black/African/Caribbean/Black British	5	9
Mixed/Multiple ethnic groups	8	5
Prefer not to say	4	3
Missing	3	0

The main difference in ages for those in the lived experience group or not was among 30 to 39-year-olds as shown below.

Age distributions of those with lived experience of use of force and those without

Age group	Percentage of respondents that reported lived experience (%)	Percentage of respondents that did not report lived experience (%)
18 to 29	8	11
30 to 39	22	10
40 to 49	19	23
50 to 59	26	31
60 and over	23	24
Missing	1	1

There are some differences in whether individuals considered themselves disabled or not.

A higher proportion of individuals responding with lived experience of use of force considered themselves to be disabled (44%) than those without lived experience (21%).

Distribution of responses to the question: Do you consider yourself to be disabled? for those with lived experience and those without

Response	Percentage of respondents that reported lived experience (%)	Percentage of respondents that did not report lived experience (%)
Yes	44	21
No	55	78
Missing	1	1

1. Respondent only answered the question on if the response was from an individual or organisation. ↩ ↩² ↩³