Mental Health Units (Use of Force) Bill (HC Bill 200)

A

BILL

[AS AMENDED IN PUBLIC BILL COMMITTEE]

TO

Make provision about the oversight and management of the appropriate use
of force in relation to people in mental health units and similar institutions; to
make provision about the use of body cameras by police officers in the course
of duties in relation to people in mental health units; and for connected
purposes.

Be it enacted by the Queen’s most Excellent Majesty, by and with the advice and
consent of the Lords Spiritual and Temporal, and Commons, in this present
Parliament assembled, and by the authority of the same, as follows:—

Key definitions

1 Key definitions

(1) This section applies for the purposes of this Act.

(2) “Mental disorder” has the same meaning as in the Mental Health Act 1983.

(3) 5“Mental health unit” means—

(a) a health service hospital, or part of a health service hospital, in England,
the purpose of which is to provide treatment to in-patients for mental
disorder, or

(b) an independent hospital, or part of an independent hospital, in
10England—

(i) the purpose of which is to provide treatment to in-patients for
mental disorder, and

(ii) where at least some of that treatment is provided, or is intended
to be provided, for the purposes of the NHS.

(4) 15In subsection (3)(b)(ii) the reference to treatment provided for the purposes of
the NHS is to be read as a service provided for those purposes in accordance
with the National Health Service Act 2006.

Mental Health Units (Use of Force) BillPage 2

(5) “Patient” means a person who is in a mental health unit for the purpose of
treatment for mental disorder or assessment.

(6) References to “use of force” are to—

(a) the use of physical, mechanical or chemical restraint on a patient, or

(b) 5the isolation of a patient.

(7) In subsection (6)—

  • “physical restraint” means the use of physical contact which is intended
    to prevent, restrict or subdue movement of any part of the patient’s
    body;

  • 10“mechanical restraint” means the use of a device which—

    (a)

    is intended to prevent, restrict or subdue movement of any part
    of the patient’s body, and

    (b)

    is for the primary purpose of behavioural control;

  • “chemical restraint” means the use of medication which is intended to
    15prevent, restrict or subdue movement of any part of the patient’s body;

  • “isolation” means any seclusion or segregation that is imposed on a
    patient.

Accountability

2 Mental health units to have a responsible person

(1) 20A relevant health organisation that operates a mental health unit must appoint
a responsible person for that unit for the purposes of this Act.

(2) The responsible person must be—

(a) employed by the relevant health organisation, and

(b) of an appropriate level of seniority.

(3) 25Where a relevant health organisation operates more than one mental health
unit that organisation must appoint a single responsible person in relation to
all of the mental health units operated by that organisation.

3 Policy on use of force

(1) The responsible person for each mental health unit must publish a policy
30regarding the use of force by staff who work in that unit.

(2) Where a responsible person is appointed in relation to all of the mental health
units operated by a relevant health organisation, the responsible person must
publish a single policy under subsection (1) in relation to those units.

(3) Before publishing a policy under subsection (1), the responsible person must
35consult any persons that the responsible person considers appropriate.

(4) The responsible person must keep under review any policy published under
this section.

(5) The responsible person may from time to time revise any policy published
under this section and, if this is done, must publish the policy as revised.

(6) 40If the responsible person considers that any revisions would amount to a
substantial change in the policy, the responsible person must consult any

Mental Health Units (Use of Force) BillPage 3

persons that the responsible person considers appropriate before publishing
the revised policy.

(7) A policy published under this section must set out what steps will be taken to
reduce the use of force in the mental health unit by staff who work in that unit.

4 5Information about use of force

(1) The responsible person for each mental health unit must publish information
for patients about the rights of patients in relation to the use of force by staff
who work in that unit.

(2) Before publishing the information under subsection (1), the responsible person
10must consult any persons that the responsible person considers appropriate.

(3) The responsible person must provide any information published under this
section—

(a) to each patient, and

(b) to any other person who is in the unit and to whom the responsible
15person considers it appropriate to provide the information in
connection with the patient.

(4) The information must be provided to the patient—

(a) if the patient is in the mental health unit at the time when this section
comes into force, as soon as reasonably practicable after that time;

(b) 20in any other case, as soon as reasonably practicable after the patient is
admitted to the mental health unit.

(5) The information must be provided in an accessible format having regard to the
patient’s ability to understand the information.

(6) The responsible person must keep under review any information published
25under this section.

(7) The responsible person may from time to time revise any information
published under this section and, if this is done, must publish the information
as revised.

(8) If the responsible person considers that any revisions would amount to a
30substantial change in the information, the responsible person must consult any
persons that the responsible person considers appropriate before publishing
the revised information.

(9) The duty to provide information to a patient under subsection (3) does not
apply if—

(a) 35the patient refuses to accept the information, or

(b) the responsible person considers that the provision of the information
to the patient would cause the patient distress.

(10) The duty to provide information to any other person under subsection (3) does
not apply if—

(a) 40the patient requests that the information is not provided to the person,
or

(b) the responsible person considers that the provision of the information
to the person would cause the patient distress.

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5 Training in appropriate use of force

(1) The responsible person for each mental health unit must provide training for
staff that relates to the use of force by staff who work in that unit.

(2) The training provided under subsection (1) must include training on the
5following topics—

(a) how to involve patients in the planning, development and delivery of
care and treatment in the mental health unit,

(b) showing respect for patients’ past and present wishes and feelings,

(c) showing respect for diversity generally,

(d) 10avoiding unlawful discrimination, harassment and victimisation,

(e) the use of techniques for avoiding or reducing the use of force,

(f) the risks associated with the use of force,

(g) the impact of trauma (whether historic or otherwise) on a patient’s
mental and physical health,

(h) 15the impact of any use of force on a patient’s mental and physical health,

(i) the impact of any use of force on a patient’s development,

(j) how to ensure the safety of patients and the public, and

(k) the principal legal or ethical issues associated with the use of force.

(3) Subject to subsection (4), training must be provided—

(a) 20in the case of a person who is a member of staff when this section comes
into force, as soon as reasonably practicable after this section comes into
force, or

(b) in the case of a person who becomes a member of staff after this section
comes into force, as soon as reasonably practicable after they become a
25member of staff.

(4) Subsection (3) does not apply if the responsible person considers that any
training provided to the person before this section came into force or before the
person became a member of staff—

(a) was given sufficiently recently, and

(b) 30meets the standards of the training provided under this section.

(5) Refresher training must be provided at regular intervals whilst a person is a
member of staff.

(6) In subsection (5) “refresher training” means training that updates or
supplements the training provided under subsection (1).

35Guidance

6 Guidance about functions under this Act

(1) The Secretary of State must publish guidance about the exercise of functions by
responsible persons and relevant health organisations under this Act.

(2) In exercising functions under this Act, responsible persons and relevant health
40organisations must have regard to guidance published under this section.

(3) Before publishing guidance under this section, the Secretary of State must
consult such persons as the Secretary of State considers appropriate.

Mental Health Units (Use of Force) BillPage 5

(4) The Secretary of State must keep under review any guidance published under
this section.

(5) The Secretary of State may from time to time revise the guidance published
under this section and, if this is done, must publish the guidance as revised.

(6) 5If the Secretary of State considers that any revisions would amount to a
substantial change in the guidance, the Secretary of State must consult such
persons as the Secretary of State considers appropriate before publishing any
revised guidance.

Reporting

7 10Recording of use of force

(1) The responsible person for each mental health unit must keep a record of any
use of force by staff who work in that unit in accordance with this section.

(2) Subsection (1) does not apply in cases where the use of force is negligible.

(3) Whether the use of force is “negligible” for the purposes of subsection (1) is to
15be determined in accordance with guidance published by the Secretary of
State.

(4) Section 6(3) to (6) apply to guidance published under this section as they apply
to guidance published under section 6.

(5) The record must include the following information—

(a) 20the reason for the use of force;

(b) the place, date and duration of the use of force;

(c) the type or types of force used on the patient;

(d) whether the type or types of force used on the patient formed part of
the patient’s care plan;

(e) 25name of the patient on whom force was used;

(f) a description of how force was used;

(g) the patient’s consistent identifier;

(h) the name and job title of any member of staff who used force on the
patient;

(i) 30the reason any person who was not a member of staff in the mental
health unit was involved in the use of force on the patient;

(j) the patient’s mental disorder (if known);

(k) the relevant characteristics of the patient (if known);

(l) whether the patient has a learning disability or autistic spectrum
35disorders;

(m) a description of the outcome of the use of force;

(n) whether the patient died or suffered any serious injury as a result of the
use of force;

(o) any efforts made to avoid the need to use force on the patient;

(p) 40whether a notification regarding the use of force was sent to the person
or persons (if any) to be notified under the patient’s care plan.

(6) The responsible person must keep the record for 3 years from the date on
which it was made.

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(7) In subsection (5)(g) the “patient’s consistent identifier” means the consistent
identifier specified under section 251A of the Health and Social Care Act 2012.

(8) This section does not permit the responsible person to do anything which, but
for this section, would be inconsistent with—

(a) 5any provision made by or under the Data Protection Act 1998, or

(b) a common law duty of care or confidence.

(9) In subsection (5)(k) the “relevant characteristics” in relation to a patient mean—

(a) the patient’s age;

(b) whether the patient has a disability, and if so, the nature of that
10disability;

(c) the patient’s status regarding marriage or civil partnership;

(d) whether the patient is pregnant;

(e) the patient’s race;

(f) the patient’s religion or belief;

(g) 15the patient’s sex;

(h) the patient’s sexual orientation.

(10) Expressions used in subsection (9) and Chapter 2 of Part 1 of the Equality Act
2010 have the same meaning in that subsection as in that Chapter.

8 Statistics prepared by mental health units

(1) 20The 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.

(2) The statistics must provide an analysis of the use of force in mental health units
by reference to the relevant information recorded by responsible persons
under section 7.

(3) 25In subsection (2) “relevant information” means the information falling within
section 7(5)(b), (c), (k), (l) and (n).

9 Annual report by the Secretary of State

(1) As soon as reasonably practicable after the end of each calendar year, the
Secretary of State—

(a) 30must conduct a review of any reports made under paragraph 7 of
Schedule 5 to the Coroners and Justice Act 2009 that were published
during that year relating to the death of a patient as a result of the use
of force in a mental health unit by staff who work in that unit, and

(b) may conduct a review of any other findings made during that year
35relating to the death of a patient as a result of the use of force in a mental
health unit by staff who work in that unit.

(2) Having conducted a review under subsection (1), the Secretary of State must
publish a report that includes the Secretary of State’s conclusions arising from
that review.

(3) 40The Secretary of State may delegate the conduct of a review under subsection
(1) and the publication of a report under subsection (2).

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(4) For the purposes of subsection (1)(b) “other findings” include, in relation to the
death of a patient as a result of the use of force in a mental health unit, any
finding or determination that is made—

(a) by the Care Quality Commission as the result of any review or
5investigation conducted by the Commission, or

(b) by a relevant health organisation as the result of any investigation into
a serious incident.

Investigation of deaths

10 Investigation of deaths or serious injuries

10When a patient dies or suffers a serious injury in a mental health unit, the
responsible person for the mental heath unit must have regard to any guidance
relating to the investigation of deaths or serious injuries that is published by—

(a) the Care Quality Commission (see Part 1 of the Health and Social Care
Act 2008);

(b) 15Monitor (see section 61 of the Health and Social Care Act 2012);

(c) the National Health Service Commissioning Board (see section 1H of
the National Health Service Act 2006);

(d) the National Health Service Trust Development Authority (which is a
Special Health Authority established under section 28 of the National
20Health Service Act 2006);

(e) a person prescribed by regulations made by the Secretary of State.

Delegation

11 Delegation of responsible person’s functions

(1) The responsible person for each mental health unit may delegate any functions
25exercisable by the responsible person under this Act to a relevant person only
in accordance with this section.

(2) The responsible person may only delegate a function to a relevant person if the
relevant person is of an appropriate level of seniority.

(3) The delegation of a function does not affect the responsibility of the responsible
30person for the exercise of the responsible person’s functions under this Act.

(4) The delegation of a function does not prevent the responsible person from
exercising the function.

(5) In this section “relevant person” means a person employed by the relevant
health organisation that operates the mental health unit.

35Video recording

12 Police body cameras

(1) If a police officer is going to a mental health unit on duty that involves assisting
staff who work in that unit, the officer must take a body camera if reasonably
practicable.

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(2) While in a mental health unit on duty that involves assisting staff who work in
that unit, a police officer who has a body camera there must wear it and keep
it operating at all times when reasonably practicable.

(3) Subsection (2) does not apply if there are special circumstances at the time that
5justify not wearing the camera or keeping it operating.

(4) A failure by a police officer to comply with the requirements of subsection (1)
or (2) does not of itself make the officer liable to criminal or civil proceedings.

(5) But if those requirements appear to the court or tribunal to be relevant to any
question arising in criminal or civil proceedings, they must be taken into
10account in determining that question.

(6) In this section—

  • “body camera” means a device that operates so as to make a continuous
    audio and video recording while being worn;

  • “police officer” means—

    (a)

    15a  member of a police force maintained under section 2 of the
    Police Act 1996,

    (b)

    a member of the metropolitan police force,

    (c)

    a member of the City of London police force,

    (d)

    a special constable appointed under section 27 of the Police Act
    201996, or

    (e)

    a member or special constable of the British Transport Police
    Force.

Interpretation

13 Interpretation

25In this Act—

  • “health service hospital” has the same meaning as in section 275(1) of the
    National Health Service Act 2006;

  • “independent hospital” has the same meaning as in section 145(1) of the
    Mental Health Act 1983;

  • 30“the NHS” has the same meaning as in section 64(4) of the Health and
    Social Care Act 2012;

  • “responsible person” has the meaning given by section 2;

  • “relevant health organisation” means—

    (a)

    an NHS trust;

    (b)

    35an NHS foundation trust;

    (c)

    any person who provides health care services for the purposes
    of the NHS within the meaning of Part 3 of the Health and Social
    Care Act 2012;

  • “staff” means any person who works for a relevant health organisation
    40that operates a mental health unit (whether as an employee or a
    contractor) who—

    (a)

    may be authorised to use force on a patient in the unit,

    (b)

    may authorise the use of force on a particular patient in the unit,
    or

    (c)

    45has the function of providing general authority for the use of
    force in the unit.

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Final provisions

14 Transitional provision

The Secretary of State may by regulations make such transitional, transitory or
saving provision in connection with the coming into force of any provision of
5this Act.

15 Regulations

(1) Regulations under this Act are to be made by statutory instrument.

(2) Regulations under this Act are subject to annulment in pursuance of a
resolution of either House of Parliament (other than regulations made under
10section 17(3)).

16 Financial provisions

There is to be paid out of money provided by Parliament—

(a) any expenditure incurred under or by virtue of this Act, and

(b) any increase attributable to this Act in the sums payable under any
15other Act out of money so provided.

17 Commencement, extent and short title

(1) This Act extends to England and Wales only.

(2) This section and section 15 come into force on the day on which this Act is
passed.

(3) 20The other provisions of this Act come into force on such day as the Secretary of
State may appoint by regulations.

(4) Regulations under this section may appoint different days for different
purposes or areas.

(5) This Act may be cited as the Mental Health Units (Use of Force) Act 2018.