The Care Quality Commission (CQC) has a legal duty to monitor how mental health services are exercising their powers under the Mental Health Act 1983 (MHA) – a legal framework governing detention and compulsory treatment of people with mental health problems.
Yesterday the CQC published its annual report, raising lots of very important issues. I want to focus in this post on an issue it raised last year as well: blanket rules. These are rules laid down by mental health services which apply to everybody, or to all detained patients, regardless of their particular needs and circumstances.
Blanket rules in mental health services
Some blanket rules found by CQC restricted a person’s contact with the outside world: 53% of wards imposed restrictions on access to the internet; 36% limited access to – or banned – mobile phones and chargers; 18% imposed restrictions on the use of the ward telephone; 7% imposed restrictions on ingoing or outgoing mail which were not restrictions which are legally permitted under s134 MHA; and 23% of wards imposed rigid visiting hours.
Some blanket rules governed what a person could do: 45% of wards limited the amount that people could smoke, or when people could smoke; 24% limited people’s access to their own money or ability to make personal purchases; in 13% of wards people were unable to take part in their preferred activities, such as fitness activities, or there was no meaningful choice of activity available to them; and in 3% of wards, people were not allowed to wear their own or preferred clothing!
Some wards imposed blanket rules on where people could be, and when: 14% had a set time to get up in the morning and 11% had set bed times or night (or day) confinement; 12% banned patients from accessing their bedrooms at certain times of the day; 36% restricted access to other rooms than bedrooms; 36% restricted access to secure outside space.
Some blanket rules restricted people’s opportunities to private spaces: 39% of wards did not allow patients to hold keys to their bedrooms, and 22% offered no lockable space which patients could control.
Some blanket restrictions controlled what patients could eat or drink: 17% of wards limited patients’ access to drinks – including hot drinks; 11% offered patients no control over portion size; 3% offered no choice of what they ate at mealtimes; and 6% would not permit food outside of set mealtimes.
In 3% of wards, the cultural or religious needs of patients were not met.
When the CQC asked for the reasons for these blanket rules, in 46% of cases they were told it was a hospital policy, in 8% of cases it was because of a historical incident, in 22% of cases it was due to staffing shortages and in 13% of cases ‘no one seemed able to give a reason.’ The CQC said that:
‘Such practices have no basis in law or national guidance on good practice and are unacceptable… Unless they are an unavoidable requirement of the ward’s security level, limitations on patients’ choice and action resulting from inflexible ward rules do not meet the Code of Practice principle of least restriction. They may be a breach of patients’ human rights.’
CQC quoted what some patients had to say about these restrictions:
‘For me, restrictions of fresh air breaks and the smoking ban constitute a worrying denial of civil liberties and human decency, particularly in cooping people up.’
‘Where I am now is more therapeutic softly softly approach around every situation. It was hard for me to adjust because where I came from was very much the opposite very restrictive; very cordoned-off; very dismissive. But these people are a lot more relaxed.’
The blogger Little Feet has written about her blog being monitored and internet access restricted whilst she was an informal patient. There is an extensive research literature about the negative effects of exposure to restrictive and stultifying institutional regimes (e.g. Goffman, Boyle, Langer etc).
Are blanket rules against the law?
The CQC raised the possibility that these restrictions might violate the human rights of patients. The most likely right is Article 8 of the European Convention on Human Rights (ECHR) – the right to respect for private and family life, home and correspondence. The Human Rights Act 1998 says that public authorities must not act in ways which are incompatible with Article 8 ECHR.
Finding a violation of Article 8 has two stages:
1) Is the right ‘engaged’ by the act in question – is this an issue which is protected by Article 8?
2) If there is an interference with an Article 8 right, is it justified?
Article 8(2) says that interferences with Article 8 may be justified provided it ‘is in accordance with the law and is necessary in a democratic society’ and pursues a legitimate aim, such as public safety, ‘for the protection of health or morals, or for the protection of the rights and freedoms of others.’ The requirement that they are in accordance with the law means that there must be – at the very least – a policy setting out the rule. The requirement for necessity has been interpreted as a need for proportionality, for striking a fair balance between competing rights and legitimate aims.
Do these blanket rules ‘engage’ Article 8 ECHR? The case law on this issue is quite weak in England and Wales. In 2009 the Court of Appeal ruled that a blanket smoking ban (even smoking outside) imposed on detained mental health patients did not engage Article 8. This meant that hospitals restricting patients’ rights to smoke did not even have to justify these rules under Article 8(2). One judge – Lord Justice Keene – disagreed. He felt that these matters were not trivial, but were part of ‘personal autonomy’. He felt that the imposition of a total smoking ban was disproportionate – noting that other UK jurisdictions had not felt followed this course. Unfortunately, the majority ruling has not been subsequently overturned.
The Scottish courts have taken a different approach. In a ruling on whether a hospital could impose ‘healthy eating’ rules on detained patients, Lady Dorrian found Article 8 was engaged because:
‘This case does not simply deal with a trivial aspect of everyday life. For inmates of the state hospital, the freedom to receive food parcels from visitors and to make purchases from an external source are some of the few areas in which they may exercise some sort of personal autonomy or choice.’
In a case last year, a Scottish court found that a smoking ban violated Article 8, because it was not the least restrictive approach, noting that Article 8(2) ‘is not a warrant for lifestyle fascism’.
The European Court of Human Rights has not yet analysed blanket restrictions, but it in a case concerning care home it did find that the living conditions were so poor they could actually amount to inhuman or degrading treatment (Article 3 ECHR).
Some of the issues found by the CQC might yet be found by the English and Welsh courts to engage Article 8, even though smoking did not. Restrictions on correspondence and phone calls are especially likely candidates because correspondence is specifically protected under Article 8, as are family relationships which might be impeded by these rules. It is also open to the appellate courts to overturn the ruling on smoking restrictions. In the meantime, improvement in this area could be promoted by another arm of CQC – through requiring services to review and justify such blanket rules, using their regulatory powers.