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Abstract
Since April 2009, the Care Quality Commission (CQC) has been responsible for regulating standards of health and adult social care in England, as well as monitoring the operation of the Mental Health Act 1983. The latter function was previously performed by the Mental Health Act Commission (MHAC). This article compares the role and functions of both bodies in terms of their ability to provide a legitimate system of regulation and an effective safeguard for psychiatric patients who are deprived of their liberty. This paper is important, as there is very little published data to date on the work of the CQC and its predecessor, the MHAC. It is also necessary to evaluate changes to the regulatory landscape and compare the different regimes, to find out whether it has improved the protection and quality of care for mental health patients. The article concludes that the CQC does have the capacity to monitor detention, enforce standards and improve the quality of patient care, as long as it continues to endorse a commitment to human rights and service user involvement, to preserve the expertise and knowledge of visiting inspectors and to maintain accountability and independence from the State.
Acknowledgements
I am grateful to Dr Oliver Quick and Mat Kinton for reading through an earlier draft of this article and for their helpful comments. Any errors/omissions remain my own. Some of the research for this article was carried out whilst I was on study leave, with the assistance of funding from a British Academy Small Research Grant, in 2011–12.
Notes
1. Scotland is governed by its own mental health legislation and there is a similar specialist monitoring body – the Mental Welfare Commission – in place in that jurisdiction. In Ireland, the presence of the Mental Health Commission is designed to ‘promote, encourage and foster the establishment and maintenance of high standards and good practices in the delivery of mental health services and to take all reasonable steps to protect the interests of persons detained in approved centres under [the 2001 Mental Health] Act’. S. 33(1) Mental Health Act 2001 (Ireland). On the effectiveness of the Irish Commission in discharging its statutory functions see Murray (Citation2011, p. 93).
2. In Wales, the Healthcare Inspectorate has taken over this monitoring role and it has produced several annual reports to date on monitoring the Mental Health Act and the Deprivation of Liberty Safeguards under the Mental Capacity Act 2005, and can be located at http:www.hiw.org.uk. The Healthcare Inspectorate is also responsible for regulating all health care in Wales.
3. The Mental Welfare Commission for Scotland monitors the operation of the Mental Health (Care and Treatment) (Scotland) Act 2003 and the welfare parts of the Adults with Incapacity Act 2000. It has a wide remit to investigate the operation of the legislation and conditions in psychiatric settings, in particular to investigate whether a patient is being ill-treated or neglected.
4. Several concepts appear in this Article which are fundamental to the National Preventive Mechanism (NPM) – preventive visits; undertaken on a regular basis that form part of an overall system of visits; experts of the NPM should have the required capabilities and professional knowledge and the NPM should have functional independence from the State. See further Articles 18 and 19 of OPCAT. For further discussion of these key elements see Steinerte, Murray and Laing (Citation2012).
5. The key finding to emerge from this review is the lack of systematic knowledge on how professional regulation affects the behaviour of those subject to regulation. The study concluded that this is likely to reflect the difficulties involved in seeking to single out the impact that regulation has on behaviour, given the myriad of other sources of influence. The message to emerge from a number of studies is that regulation is far more likely to be complied with when accepted as legitimate by practitioners.
6. Under s. 120(1)(b)(i) of the unamended MHA 1983 any ’general’ complaint about a matter that occurred whilst a person was detained had to be a matter that the MHAC felt had not been satisfactorily dealt with by the hospital managers. However, in theory, the MHAC's power to investigate complaints was much broader. Under s. 120(1)(b)(ii), it could investigate any other complaint as to the exercise of powers and duties under the Act, regardless of whether the hospital managers had already tried to deal with it.
7. The essential standards are set out in the Health and Social Care Act 2008 (Regulated Activities) Regulations 2010 and the Care Quality Commission (Registration) Regulations 2009.
8. As noted by Baldwin and Cave ‘[t]his gives the regulated [sector] a degree of leverage over regulatory procedures and objectives, a leverage that, over time, produces capture’ (Citation1999, p. 36).
9. I am grateful to a colleague with expertise in mental health law for drawing my attention to this point.
10. ‘CQC lifts condition on West London Mental Health NHS Trust’ located at: http://www.cqc.org.uk/content/cqc-lifts-condition-west-london-mental-health-nhs-trust.
11. CQC publishes 18 more reports from its review of services for people with learning disabilities', CQC Press Release, 4 April 2012, located at http://www.cqc.org.uk/content/cqc-publishes-18-more-reports-its-review-services-people-learning-disabilities. The programme was focused on two outcomes relating to the government's essential standards of quality and safety at that time, looking at whether people experience safe and appropriate care, treatment and support and whether they are protected from abuse. A final report summarizing the main findings across providers was published in 2012 and is available on the CQC website. The overall conclusion is that leadership and governance needs to be stronger to ensure that services are safe and meet essential standards.
12. As note 11 above. See also http://www.cqc.org.uk/public/reports-surveys-and-reviews/themed-inspections/review-learning-disability-services.
13. The CRPD was adopted on 13 December 2006 and came into force on 3 May 2008. Some commentators argue that the Convention alters social perceptions by taking a principled approach to disability equality. See further McSherry and Weller (Citation2010).
14. See note 4 above.
15. Similarly, in 2009/10, the Commissioners met with 5078 patients, made 1711 visits to wards, and around one in three of those visits were unannounced and 9% took place at the weekend. See CQC (Citation2010b, 16). Similar figures are quoted in the CQC's monitoring report for the following year (CQC Citation2013a).
16. As noted by Lady Hale, ‘the MHAC was not always able to produce results’, and she cites two such examples, where improvements did not occur at Broadmoor Hospital until others stepped in and how the MHAC failed to uncover the severity of problems subsequently revealed by the Blom-Cooper inquiry at Ashworth Special Hospital (Citation2010, 226).
17. The 2011 survey of people who use community mental health services was completed by over 17,000 people aged 16 and over. The vast majority of participants said they were listened to and had trust in their health and social care workers. However, the findings show there is room for improvement, especially in involving service users more directly in some aspects of their care. There have been similar findings in later surveys in 2012 & 2013. www.cqc.org.uk/sites/default/files/documents/20130911_mh13_national_summary_final.pdf
18. The government had initially considered expanding the scope of the CQC to embrace these functions as well as the work of the MHAC, but the government decided not to proceed with this aspect of the proposal following a public consultation in 2012. The three regulators have instead developed a Memorandum of Understanding to promote joint working, share information and avoid duplication. See (CQC, Citation2012b).