Mental health law under review: messages from English safeguarding adults reviews

Published date07 March 2019
DOIhttps://doi.org/10.1108/JAP-10-2018-0020
Date07 March 2019
Pages46-64
AuthorJill Manthorpe,Stephen Martineau
Subject MatterHealth & social care,Vulnerable groups,Adult protection,Safeguarding,Sociology,Sociology of the family,Abuse
Mental health law under review:
messages from English safeguarding
adults reviews
Jill Manthorpe and Stephen Martineau
Abstract
Purpose The purpose of this paper is to examine safeguarding adults reviews (SARs) that refer to mental
health legislation in order to contribute to the review of English mental health law (2018).
Design/methodology/approach Searches of a variety of sources were conducted to compile a list of
relevant SARs. These are summarised and their contexts assessed for what they reveal about the use and
coherence of mental health legislation.
Findings The interaction of the statutes under consideration, in particular the Mental Health Act (MHA)
1983, the Mental Capacity Act (MCA) 2005, together with the Care Act 2014, presents challenges to
practitioners and the efficacy of their application is variable.
Research limitations/implications In light of the absence of a duty to report SARs to a national register, it
is possible that relevant SARs were missed in the search phase of this research, meaning that the results do
not present a complete picture.
Practical implications Examining cases where use of legislative provisions in mental health has been
found wanting or legislation may not be easily implemented may inform initiatives to increase understanding
of the law in this area.
Originality/value This papers originality and value lie in its focus on mental health legislation as discussed
in SARs at a time when both the MHA 1983 and the MCA 2005 are the focus of attention for reform.
Keywords Mental health, Mental capacity act, Mental health act, England, Legal,
Safeguarding adult reviews
Paper type Research paper
Background
British Prime Minister Rt Hon TheresaMay made explicit commitment to addressproblems of the
UKs mental health services on her appointment (July 2016). She declared that there was not
enough help at handfor people with mental health problems. In 2017, following a General
Election, she announced an independentreview of the Mental Health Act (MHA) 1983 toaddress
the problems arising from discriminatory use of a law passed more than three decades ago
(Savage, 2017). The government subsequently appointed Professor Sir Simon Wessely to chair
the review; a leading psychiatrist, a former President of the Royal College of Psychiatrists and
President of the Royal Society of Medicine. The review was tasked with exploring how legislation
(especially the MHA 1983) is currently used in England; its impact on service users, families and
staff and to make recommendations to improve legislation and related practices (Department of
Health and Rt Hon Theresa May, 2017). Specifically, the review team was asked to provide
understanding of the reasons for: rising rates of detention under the MHA; the disproportionate
number of people fromblack and minority ethnic groups detainedunder the MHA; any processes
that are out of step with a modern mental healthcare system (Department of Health, 2017). An
interim report was produced in 2018 (Department of Health and Social Care, 2018) and a final
report, with detailed recommendations, was published in December 2018 (Wessley, 2018).
Received 1 October 2018
Revised 21 November 2018
8 December 2018
Accepted 17 December 2018
The authorsare grateful to the
NIHR Policy ResearchProgramme
for funding thisstudy. The views
expressedare the authors alone
and not necessarilyshared by the
Departmentof Health and Social
Care, the NHS orthe National
Institutefor Health Research (NIHR).
Jill Manthorpe and Stephen
Martineau are both based at
NIHR Health and Social Care
Workforce Research Unit,
Kings College London,
London, UK.
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VOL. 21 NO. 1 2019, pp. 46-64, © Emerald Publishing Limited, ISSN 1466-8203 DOI 10.1108/JAP-10-2018-0020
To inform the review team an analysis of English Safeguarding Adults Reviews (SARs) was
undertakenin summer 2018 to provide a synthesisof messages from SARs relevantto the reviews
objectives. This paper reports the approach takento the analysis which encompassed the SARs
contexts and their recommendations relevant to mental health legislation.
Under section 44 Care Act (2014) (applicable to England), a Safeguarding Adults Board (SAB)
must arrange an SAR where there is reasonable cause for concern about how partner agencies
have worked together to safeguard an adult with care and support needs in its area who has died
as a result of abuse or neglect, whether known or suspected, or who is known or suspected to
have experienced serious abuse or neglect. In addition to this new statutory duty, the Act also
makes provision for SABs to arrange discretionary SARs in relation to any other case involving
an adult in its area with care and support needs (section 44(4) Care Act, 2014).
The declared overall purpose is to promote learning and improve practice, not to re-investigate or
to apportion blame. General objectives include establishing:
lessons that can be learned from how professionals and their agencies work together;
the effectiveness of local safeguarding procedures;
learning and good practice;
possible improvements to local inter-agency practice; and
service improvement or development needs applicable to one or more service or agency.
The Care Act (2014) (secti on 43(5) and Schedule 2, para 4) r equires that findings and act ion
taken to implement t he findings from a SAR are publish ed in the SABsAnnualReport.While
there is general guidance on their conduct (Department of Health and Social Care, 2017; Social
Care Institute for Excellence, 2015), many SABs have developed their own SAR policy and
processes documentation, which is usually located on their websites. The variety of SARs
echoes that of their predecessors, Adult Serious Case Reviews (SCRs), owing to the range of
circumstances re viewed (the types of abuse or negle ct, the location, the timescale a nd the
context). This is because once the decision to commission an SAR has been taken its terms of
reference are locally determined by the SAB and, as Preston-Shoot (2018) suggested, a review
needs an understanding of both local geography and the national legal, policy and financial
climate within whi ch it sits(p. 78).
Context particularly matters in respect of the interface between mental health services and
practice, and adult safeguarding. Whitelock (2009) considered that the (pre-Care Act, 2014)
adult safeguardin g system was failing many peopl e with mental health problems wh o feel
disempowered by an d frustrated with a paternalis tic system that labels them vulnerableand
fails to take accou nt of their preferences in making d ecisions about their safety(p. 30). More
recently, conce rn has been expressed that not onl y do people with mental health p roblems
experience highe r levels of criminal victimiz ation than other adults (Pett itt et al., 2013) but that
The discourses on adult safeguarding and risk, mental health and disability hat e crimehave
appeared to remain largely separate in research, policy and practice, and overall, mental health
service user experiences remain under-researched(Carr et al., 2017). In their recent review of
the literature on UK mental health service user experiences and perspectives on mental
health-related targeted violence and hostility (often referred to as disability hate crime),
Carr et al. (2017) found: Adult safeguardin g did not feature strongly in th e findings about
help-seeking be haviour and reporting.
Lastly, SARs, in which the safeguarding related aspects of mental healthcare and treatment for
different parties may be scrutinised, are not the only system overview in England. Two are
particularly pertinent to SARs. First, in 1994 a system of Mental Health Homicide Reviews was
established, since 2013 termed Independent Investigations. NHS England is responsible for
commissioning such investigations from independent expert organisations into homicides
committed by patients being treated for mental illness. Their reports are available online
(www.england.nhs.uk/north/our-work/publications/ind-invest-reports/). Several provide detailed
pictures ofadult safeguarding and amongsome the investigatory teamsmembership has included
adult safeguardingpersonnel (see, for example,the Mr X Investigation, NHS England,2018, p. 26).
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