Our work in 2020/21

Remote review activity

As discussed in last year’s report, in response to the restrictions imposed due to the pandemic, at the start of April 2020 MHA monitoring visits were replaced with remote reviews of services. These relied on contact with patients, staff, advocates and carers by telephone or video conference.

Over 2020/21, we carried out 682 MHA monitoring remote reviews of wards. We spoke with 1,895 patients and 1,111 carers. Although we returned to site visits from July 2021, we have retained some aspects of the remote review methodology, in particular continuing to contact carers and advocates by telephone or video link outside of the physical visit. We have found that these contacts increased in remote reviews, and provided a more rounded picture of services.

In addition to the remote reviews, MHA reviewers took part in Independent Care, Education and Treatment Reviews (IC(E)TRs) for 77 patients, discussed in the section on the Independent Care, Education and Treatment reviews.

Complaints and contacts received by CQC

CQC’s complaints team and call centre received 2,280 contacts in 2020/21 (compared to 2,231 in 2019/20 and an average of 2,385 over the last five years) from people raising issues concerning the MHA. Ninety-one percent of contacts were by telephone, and 9% were by email or through our website. This picture is largely consistent with the previous year. Most of these contacts will be expressing some complaint or concern, but the vast majority are dealt with through advice or referral to NHS complaints procedures. Half of the contacts opened and resolved in 2020/21 were closed within a month, and three quarters within three months.

Over 2020/21 we opened seven complaints investigations on matters that had not been satisfactorily resolved through local processes. An example of such a complaints investigation is given in the section on aftercare.

The Second Opinion Appointed Doctor Service

The Second Opinion Appointed Doctor (SOAD) service is an additional safeguard for people who are detained under the MHA, providing an independent medical opinion to state the appropriateness and lawfulness of certain treatments given to patients who do not or cannot consent. CQC is responsible for the administration of the SOAD service, but SOADs are independent and reach their own conclusions by using their clinical judgment.

In March 2020, the SOAD service moved to a remote-working approach. Using telephone and video conferences, rather than physical visits enabled the second opinion service to continue despite restrictions introduced as a result of the pandemic.

In April 2020, the service introduced the pilot of a new app that enabled SOAD authorisation forms T3 to be created and shared with hospitals. This has now been developed to include other statutory forms and rollout of the app to all SOADs is underway. Results from the pilot showed that 70% of certificates completed by SOAD were accessed by the hospital within 24 hours, and 80% in less than two days, rather than the previous seven. The app was used for 25% of T3s, and 50 providers have received a T3 completed this way.

Following the introduction of the app and remote working more generally, an audit of outputs shows no decline in accuracy or appropriateness of content, and the rate of errors on certificates has fallen. Response time from receipt of request to opinion reduced to an overall average of 12 days in the period, as SOADs initially had greater availability and no longer have to travel to carry out their role. The backlog of second opinions awaiting appointment reduced from 1,200 to less than 50, although there has been an increase again in the latter part of the reporting year as SOADs have returned to other commitments.

Patient experience of the remote SOAD process

We asked patients who have used the remote SOAD service to tell us about their experiences. We are grateful for the considerable help of hospital mental health administrators and legislation leads, which enabled us to gather 75 responses to a short questionnaire, which was created with input from people who use services.

If given a choice whether or not speak with a SOAD at all, only 41% (31) stated a positive wish to do so. Nineteen percent of patients (14) thought they would prefer that the SOAD just read their notes with no personal contact. The rest either had no preference (27%, 20) or were not sure which option to pick (12%, 9). One patient did not provide an answer.

When asked their preferences about the independent doctor (SOAD) review, 21% (16) said they would prefer to see the SOAD in person but maybe wait longer, 28% (21) would prefer to have their treatment quickly but forego the opportunity to see a SOAD, 25% (19) said they had no preference, and 15 (20%) were not able to decide which option to pick. Four (5%) did not answer.

Where meetings with the SOAD could not be in person because of COVID-19 restrictions, 32% (24) would prefer to speak to the doctor by telephone; 31% (23) by video-link. The rest had no preference (20%, 15) or were not able to decide (15%, 11). Two patients (3%) did not provide an answer.

When asked their preferences about changes that might be made in the future, over half (52%, 39) of the patients surveyed would wish to have an opportunity to put their views in writing to contribute to the SOAD process: 32% (24) were happy to do this with help from staff if necessary, and 20% (15) would prefer to be supported by an advocate. Others had no preference (19%, 14) or were unsure which option on the questionnaire reflected their view (28%, 21). One patient did not provide an answer.

At the time of writing, the pandemic and its impact are far from over. There is scope for retaining aspects of the remote working processes to deliver more timely and targeted intervention, to offset delay and geographic factors, and to better respond to patients’ wishes. Work on possible models, triage, and prioritisation continues.

Second opinion activity in 2020/21

SOAD reviews are needed to allow the following treatments where consent is not given, except in an emergency:

• medication for mental disorder after three months from first administration when a patient is detained under the MHA
• medication for mental disorder after the first month of a patient being subject to a community treatment order (CTO)
• electroconvulsive therapy (ECT), at any point during the person’s detention.

When we receive a request from the provider caring for the patient, we have a duty to appoint a SOAD to assess and discuss the proposed treatment with a minimum of two professionals involved in the patient’s care. SOADs can issue certificates to approve treatment plans in whole, in part, or not at all depending on their assessment of the treatment plan in an individual case.

In 2020/21:

• SOADs provided second opinions for 14,146 patients – 117 fewer overall than 2019/20.
• 10,880 SOAD visits were to look at treatment plans for medication, with the rest considering treatment plans for electroconvulsive therapy (ECT) or for medication and ECT.
• 2,028 second opinions were for patients subject to Community Treatment Orders (CTOs) – this is up from 1,039 (7.3%) in 2019/20.​

Outcome of SOAD visits

In 2020/21, SOAD review resulted in change to 30% of the 1,030 treatment plans for medication relating to detained patients who were refusing consent, and to 24% of the 11,757 plans considered for treatment with medication of detained patients incapable of consent. Such change commonly reduces the dosage and/or number of medicines proposed.

Treatment plans were changed in 17% of the 1,456 second opinions for ECT, or ECT and medication, compared to 23% in 2019/20.

There was a slight increase in the overall percentage of second opinions resulting in no change to the treatment plan (76%) in 2020/21 compared to 2019/20 (71%). During the pandemic there has also been a fall in the percentage of times where there is discussion between the Approved Clinician in charge of the patient’s treatment and SOAD (74% of 100 cases sampled from 2019/20, reducing to 46% from 100 cases sampled from the period after April 2020). Needing to submit written information on treatment plans before the remote visit may be a factor in these changes in practice. Where detailed information is provided in advance, it seems likely that this may increase the quality of proposed plans and reduce the need for further discussion between SOAD and approved clinician.

The use of urgent treatment powers

During 2020/21, the use of urgent treatment powers to give medication before a SOAD visit is requested more than doubled from the previous two years, both in number and as a proportion of all requests relating to treatment with medication. Eighteen percent of all requests for SOAD visits relating to treatment with medication indicated that urgent powers had been used in 2018/19; 17% in 2019/20, and 48% in 2020/21.

Figure 9 shows the most frequent reasons for such second opinion requests, where the submission stated that section 62 powers for urgent treatment had been used.

We cannot be certain whether the rise is a genuine increase in use of urgent powers, or better reporting by provider services in their requests for a second opinion, or a mixture of both. It is plausible that there has been a genuine increase during the pandemic. One factor may be stresses on services, including remote working for some clinicians and administrators, and ‘fire-fighting’ by clinical staff at times of staffing pressures. As almost half of all uses of urgent powers to give medication in 2020/21 stemmed from a need to make changes to prescribed medicine, it may be a reflection of additional fluctuation of treatment needs due to the pandemic itself or the measures taken to contain it.

In 2020/21, 19% of requests that report the use of urgent powers were required because the patient had withdrawn consent or become unable to give valid consent due to mental incapacity. Such cases may be seen as a reflection of good clinical practice in having regular discussions with patients over consent, and assessing capacity if it is in doubt.

However, in about one quarter of recorded uses of urgent treatment prior to requests for medication in 2020/21, the underlying reason was the expiry of the three month period in which treatment can be given without certification by a SOAD (or the one month equivalent for Community Treatment Order patients). This suggests that the request was made very close to or after that expiry date, and had the request been made earlier the use of urgent treatment powers could have been avoided. As such this use of urgent powers should be avoidable and, were this is the case, indicates poor administration by services that denies patients their rights under the Act.

The number of requests to consider treatment with ECT declined in 2020/21 to 1,463 from 1,789 in 2019/20. The proportion where urgent treatment powers had been used before a SOAD is requested also declined from 38% (709) in 2019/20 to 34% (529) in 2020/21 (figure 10). Despite SOAD opinions being easier and quicker to access, we have noted some pockets of increase in use of section 62 in ECT for some providers. We are exploring this further with those providers.

Notifications of absence without leave

Hospitals designated as low or medium security must notify us when any patient liable to be detained under the MHA is absent without leave, if that absence continues past midnight on the day it began.

In 2020/21, we received notifications for 667 incidents. This is slightly lower than average (over the last five years, we have received an annual average of 736 notifications, but the figure fluctuates year-on-year). This may be a reflection of reduced opportunities for leave over the year, due to pandemic restrictions, as four out of five absences happen when the patient is on leave and therefore not on hospital premises. As usual, half of all the absences occurred when patients stayed away longer than had been authorised: such cases may reflect positive risk taking by providers.

In one-third of all cases, the patient returned to hospital voluntarily; another 7% were brought back by family members, and in about 18% hospital staff were involved in the return. Police returned the patient in 28% of cases.

Notifications of deaths of patients under the MHA

Providers have a legal duty to notify us of deaths of people detained, or liable to be detained, under the MHA. In this section, we provide figures for the numbers of people who died while in detention and subject to community treatment orders (CTO). This is based on information included in notifications that providers have sent to us. Figures are based on the date of death unless otherwise stated and exclude deaths of people that were not detained, or liable to be detained at their time of death – that is, people who were removed from section at their time of death.

Data on notifications may be updated over time leading to changes in overall numbers and/or the categorisation of deaths. These updates may relate to data cleaning, delays in notifying CQC of a death of a detained patient or information received through the coroners’ courts.

We have also published data on deaths of people under the MHA notified to CQC during 2020/21 in our insight briefings. Our insight briefings provided overall figures for any death notified to CQC through our MHA death notification process based on date of notification so are not directly comparable to the figures included in this report.

We received notifications that 363 people died while detained under the MHA between 1 April 2020 and 31 March 2021, (figure 11), which is a rise on the previous year (240 deaths in 2019/20). A large number of these deaths (268 out of 363) were due to natural causes, of which 43% (114) were identified as caused by COVID-19.

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Figure 11: Deaths of patients in detention, 2016/17 to 2020/21, England
 

Type	2016/17	2017/18	2018/19	2019/20	2020/21
Natural causes	186	189	136	143	268
Unnatural causes	54	48	34	32	33
Undetermined	7	10	25	65	62
Total	247	247	195	240	363

Source: CQC death notifications

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Unlike deaths of detained patients, providers are not required to notify CQC of deaths of people subject to CTO. As such, data is likely to fall below actual numbers of deaths of CTO patients.

From the notifications we received, we found that 65 people subject to CTO died between April 2020 and March 2021 (figure 12). While numbers are small, we have seen an increase in both natural (27 in 2021/20; 21 in 2019/20) and unnatural (23 in 2021/20; 10 in 2019/20) cause deaths.

As at September 2021, the cause of death of 62 detained patients and 15 deaths of people subject to CTO were still to be determined and requires further information from care providers and/or coroners. The cause of deaths in detention are usually determined through the coroners’ courts, which can lead to a delay for accurate statistical reporting.

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Figure 12: Deaths of patients subject to CTO, 2016/17 to 2020/21, England
 

Type	2016/17	2017/18	2018/19	2019/20	2020/21
Natural causes	29	23	9	21	25
Unnatural causes	12	7	5	10	24
Undetermined	1	4	2	5	16
Total	42	34	16	36	65

Source: CQC death notifications

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Figures 13 and 14 present information about the underlying cause of death for those deaths where the cause is known. The coding of the cause of death is undertaken manually based on the free text information included in the death notification, including information provided by coroners’ courts. This can involve the application of judgement on the part of the coder to attribute the underlying cause of death and/or requests for expert advice. Contributory causes of death are not recorded as part of this analysis.

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Figure 13: Cause of natural deaths as notified to CQC, April 2020 to March 2021, England
 

Cause of death	Detained patients	CTO patients
Aspiration pneumonia	7	1
Cancer	9	2
Chronic Obstructive Pulmonary Disease	7	3
COVID-19	114	5
Heart disease	27	6
Myocardial infarction	12	2
Other	42	6
Pneumonia	20	1
Pulmonary embolism	29	1
Respiratory problems	1	0
Unknown	0	0
Total	268	27

Source: CQC death notifications

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Figure 14: Age at death of detained and CTO patients, for natural and unnatural deaths, April 2020 to March 2021, England
 

Age	Detained patients Natural causes	Detained patients Unnatural causes	CTO patients Natural causes	CTO patients Unnatural causes
20 and under	1	3	0	0
21 to 30	5	14	0	3
31 to 40	15	9	1	8
41 to 50	16	3	3	5
51 to 60	39	1	6	5
61 to 70	59	3	4	1
71 to 80	67	0	9	0
81 to 90	54	0	4	1
91 and over	11	0	0	0
Unknown DOB	1	0	0	0
Total	268	33	27	23

Source: CQC death notifications

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Figure 15 shows age at death of detained and CTO patients where the cause of death is known.

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Figure 15: Cause of unnatural deaths as notified to CQC, April 2020 to March 2021, England
 

Cause of death	Detained patients	CTO patients
Accidental	2	2
Another person	1	0
Drowning	0	1
Fire	0	0
Hanging	9	2
Iatrogenic	0	0
Jumped from building	0	1
Jumped in front of vehicle / train	4	0
Method unclear / other	0	1
Self-poisoning	6	16
Self-strangulation / suffocation	8	0
Unsure suicide / accident	3	0
Total	33	23

Source: CQC death notifications

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Figure 16 shows the ethnicity of patients who died while detained hospital or subject to a CTO (where the death was notified to CQC).

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Figure 16: Recorded ethnicity of detained and CTO patients at time of death, April 2020 to March 2021, England
 

Ethnicity	Detained patients	CTO patients
White	254	45
BAME	61	12
Unkown / not stated	48	8
Total	363	65

Source: CQC notifications

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As highlighted in our January 2022 Insight briefing, we are concerned that poor recording of ethnicity and an overreliance on the categories of ‘not known’ and ‘not stated’, including in the recording of deaths, is creating further equality issues.

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Appendix A: Monitoring the MHA as a part of the UK’s National Preventive Mechanism

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