Policy paper

DHSC's response to CQC's 'Out of sight – who cares?: restraint, segregation and seclusion' report

Published 21 July 2021

This was published under the 2019 to 2022 Johnson Conservative government

This letter regarding the Care Quality Commission’s (CQC) ‘Out of sight - who cares?’ report is from Helen Whately MP, the Minister of State for Care and is addressed to Ian Trenholm, the Chief Executive of the CQC.

Dear Ian,

Thank you for your important report ‘Out of sight – who cares?’. As you know the Secretary of State for Health and Social Care commissioned the review of restraint, seclusion and segregation due to growing concerns about increased use of restraint for autistic people, people with a learning disability and/or mental health condition. I welcome the CQC’s determination to fully understand the situation and identify actions needed to end the line of inappropriate restrictive practices. The CQC report makes a series of recommendations – some for the Department of Health and Social Care (DHSC) and a number for others involved in this important issue. I accept in full or in principle all the recommendations where DHSC is identified as the lead department. Work is already happening on these recommendations in many cases. For the recommendations addressed to others, I have asked my officials to work with colleagues to determine what urgent action should be taken if it is not already underway.

As we made clear when the CQC report was published on 22 October 2020, the findings were deeply concerning. Many of the findings and recommendations which you set out echoed those of the Joint Committee on Human Rights’ (JCHR) reports on the detention of young people with a learning disability and autistic people (June 2020 and November 2019). We committed to a number of actions in the government response to the JCHR, also published on 22 October 2020, which align with those that we are taking in response to the findings of the CQC review. In our response to the JCHR, we were clear that rights must be upheld regardless of wider circumstances, no matter how unprecedented. This is particularly so for those who may be at a vulnerable time in their lives, in crisis or receiving treatment in specialist mental health inpatient settings.

I am also enormously grateful to Baroness Hollins and the independent case review Oversight Panel for their work on improving circumstances for people in long-term segregation. This work followed the recommendation in the CQC interim report in May 2019 that individuals in long-term segregation should have their care independently reviewed. Baroness Hollins and the Oversight Panel have developed a comprehensive interim report and set of recommendations which align closely with the findings of the CQC review. I have today responded to Baroness Hollins’ letter and interim report and fully endorse the recommendations made.

Having identified and determined what action needs to be taken, it is critical that we make sure it happens. I agree with your recommendation that there must be a single point of ministerial ownership for delivery of all the recommendations made in ‘Out of sight – who cares?’. I have tasked our newly established Building the Right Support Delivery Board to monitor and drive progress in improving care for people with a learning disability and autistic people. This will include ensuring action is taken on the recommendations the CQC has made. Local government will be a key partner in some areas. Therefore, where actions do impact local government, as per the government’s New Burdens Doctrine, we will liaise with the Ministry of Housing, Communities and Local Government (MHCLG) to conduct a new burdens assessment into these, and ensure councils are fully funded to drive the improvements we are seeking.

I chair the Board which brings together representatives from other government departments, local government and other organisations with responsibility for elements of the Building the Right Support national plan. It is important that the CQC are part of this group as the independent regulator. The Board also brings together in one place the expertise of existing groups in relation to Building the Right Support and Transforming Care. This is to ensure alignment of programmes of work, such as those for children and young people, where early intervention and support can help avoid inpatient admissions. It also includes Baroness Hollins as chairperson of the Oversight Panel for those in the most restrictive circumstances. The Board has already identified a number of priority areas to focus on which align with the recommendations the CQC has made, including housing, transitions into adulthood, community support and workforce.

Your report made a number of recommendations on workforce. We agree that everyone involved in the care of people with a learning disability and autistic people must have the right skills, so that every individual gets appropriate, tailored support and has a positive experience of health and care services. This should be the case whether in the community or an inpatient setting. That is why we are committed to the Oliver McGowan Mandatory Training on learning disabilities and autism for all health and social care staff to ensure they have the skills they need. We are working with Health Education England and Skills for Care to develop and test a standardised training package, backed by £1.4 million investment. Findings from the evaluation will support us to identify the best approach ahead of the next Spending Review period. Providers to develop, deliver and evaluate the trials have been appointed, and work on the training has continued despite the pandemic. Beyond the Oliver McGowan Mandatory Training, we will of course continue to work with colleagues in NHS England, local government, Health Education England and Skills for Care to ensure the right workforce is in place, including through the Delivery Board which has also identified workforce as a priority theme.

As well as ensuring staff have the right skills we recognise, as you recommend, that there is more to do to provide support in the community in order to prevent unnecessary admissions to inpatient care and to facilitate timely discharge. That is why we committed in our response to the JCHR to consult on new duties on commissioners to ensure adequacy of supply of community services and that every local area should understand and monitor the risk of crisis at an individual-level for people with a learning disability and autistic people through the creation of a local ‘at risk’ or ‘dynamic support’ register. We are pleased that the Mental Health Act White Paper published on 13 January 2021 has enabled us to set out these proposals for consultation and we are carefully considering the responses received.

The reform of the Mental Health Act also provides us with an opportunity to consider wider changes relevant to people with a learning disability and autistic people. With regards to your recommendations, we set out in the White Paper that, for the first time, the Act will require that all patients subject to detention must have a care and treatment plan, with clear expectations about how and when this should be developed with the patient. For people with a learning disability or autistic people, the responsible clinician would also be required to take into account the findings and recommendations made as part of a Care (Education) and Treatment Review (C(E)TR), in the patient’s statutory care and treatment plan. We will consider changes to the Mental Health Code of Practice as part of this wider work on Mental Health Act reform.

I agree with the principle that there should be a single named commissioner with oversight for commissioning for people with a learning disability and complex needs. Officials are discussing how we put in place a stronger oversight arrangement and enhance accountability for commissioning with the CQC and NHS England, within the current legal framework. It is important that health, social care and education work together effectively in local systems reflective of the direction of travel set out in the Health and Care Bill.

Your report highlights that better reporting of restrictive practice is needed. As you will be aware, the JCHR also made recommendations about improved recording and reporting. We were clear in our response that there must be transparent reporting about the use of restrictive interventions in order to improve practice and minimise all types of force used on patients so that it is genuinely only ever used as a last resort. This is a central aim of the Mental Health Units (Use of Force) Act 2018 (UK Government, Mental Health Units (Use of Force) Act, November 2018). The purpose of the Act is to increase the transparency and accountability of mental health services’ use of force. As well as setting out the requirements for recording and reporting the use of force (s.6) it makes clear that staff should be trained in the appropriate use (s.5) and that the Secretary of State must ensure that at the end of each year statistics are published regarding the use of force by staff who work in mental health units (s.7(1)). We are also working closely with you to develop a proposal to amend the Health and Social Care Act 2008 Regulated Activities regulations to improve reporting and transparency around the use of restrictive practice, including segregation. More immediately, changes are being made to the Assuring Transformation dataset to better capture use of restrictive practices.

With regards to recommendation 9 specifically, data on autism diagnostic waiting times were published for the first time by NHS Digital in November 2019. Since then there have been a further 5 data releases (on 13 August 2020, 10 September 2020, 10 December 2020, 11 March 2021 and 10 June 2021). These are experimental statistics and work is ongoing to develop the quality and reliability of the data. Information on inpatient numbers in each Transforming Care Partnership is published on a monthly basis by NHS Digital.

I welcome the increased focus the CQC is placing on care for people with a learning disability and autistic people, including the recommendation that CQC must improve its regulatory approach for providers of services for people with a learning disability, autistic people and people with mental health conditions.​ We must continue to work together on this to achieve the change that we know is not only possible, but also vital.

Finally, while there are clearly too many instances of restrictive practice and poor care, I welcome both your reflection that it is possible to get this right and the examples of good practice that the CQC report identified. We can and must achieve this for everyone.

Helen Whately MP
Minister of State for Care