A new path for the regulation of mental health services

The Mental Health Commission (MHC) recently launched its statement of strategy 2019 to 2022. Paul Mulholland speaks to the MHC’s Chairperson and Chief Executive about the future direction of the Commission and the regulation of mental healthcare services

A case recently came before Kilkenny District Court that was a landmark for mental health services in Ireland. Following an inspection of the Department of Psychiatry in St Luke’s General Hospital, Kilkenny, in November 2018, the Mental Health Commission (MHC) decided to initiate legal proceedings against the HSE. This marked the first time the MHC made such a move.

The decision to take legal proceedings was taken due to the “critical risks” uncovered by the inspection team. Mr Martin McMenamin, Assistant Inspector of Mental Health Services, said the team found certain parts of the premises were “grubby”, they found pungent odours, ligature points and exit corridors used to store large inappropriate items.

“There was an extremely pungent heavy odour… The strength of the smell was enough to repel the inspection team from the immediate area. It was later reported by the Clinical Nurse Manager that the origin of the smell was a used colostomy bag.”

Mr McMenamin gave further evidence of hair, hardened food and other dirt on the floor of the unit’s seclusion room, along with fluid stains on its walls and windows. He spoke of dirty toilets, unemptied waste bins and “grimy” floors in a number of rooms.

The court decided to convict the HSE on a number of charges relating to breaches of the Mental Health Act 2001. The Department of Psychiatry pleaded guilty to four charges. The first was that the department contravened a condition of registration in failing to implement a programme of maintenance to ensure that the premises met the needs, privacy and dignity of the resident group and failed to ensure adherence to the regulations.

Secondly, they failed to comply with the rules governing the use of seclusion and mechanical means of bodily restraint in that the seclusion facilities were not furnished, maintained and cleaned in such a way that ensured patients’ inherent rights to dignity and privacy were being respected. The third and fourth charge was that they failed to comply with the rules, in that the seclusion register for patients was not signed by a consultant psychiatrist responsible, as required by the law.

Tougher stance

Before the court’s decision, the Medical Independent (MI) spoke to MHC Chairperson Mr John Saunders. He pointed out that the Commission has been keen to change its relationship with service providers in recent years and take a more hard-line stance on certain issues.

 “The Commission set out in its early days, obviously, to enact the 2001 Act,” Mr Saunders said.

“In that context, it took a partnership approach where it worked with service providers, for the most part with the Health Service Executive, but there are also strong independent service providers. The idea was to help them, support them, in actually pointing out where the deficits were. And then giving some directional support to how they could improve.  Now, that policy continued for a number of years. To be fair, a significant amount of improvement was achieved in terms of people identifying what needed to happen to make change, and how it would happen.

“The problem we realised over recent years was, despite that good work, there were a number of core ingrained issues that weren’t being resolved. And they were coming back to us year-on-year, and they became headline issues for us in terms of what the Commission looks at; for example, the absence of individualised programme plans. The paucity of privacy and hygiene in some areas. The continued admission of children to inappropriate adult services. The high use of seclusion and restraint, which of itself has no therapeutic value.

“Those themes kept emerging and I suppose we realised that there is a point you need to move from guidance and support, to a more enforcing process. So over the past couple of years, that has been the change in tone in terms of what the Commission is doing. At one level, we are saying, it is difficult to make all of these changes, because people need additional resources and we need to change structural processes. And that is very difficult in a very large organisation.”

Mr Saunders was speaking to MI at the launch in Dublin of the Commission’s new statement of strategy, which covers 2019 to 2022. According to Mr Saunders, the MHC has been undertaking a process of transformation since early 2018, which has included the development of a new vision, a mission statement, and a comprehensive and wide-ranging consultation process that ultimately led to the new strategic plan.

He said the strategy consultation clearly evidenced a desire for the Commission to promote high standards and work with and support all stakeholders who wish to create improvement. Where standards are not acceptable and human rights are not upheld, Mr Saunders said the message came back that the Commission should intervene, using all powers necessary.

Regulatory responsibility

Mr Saunders said the Commission is aware of the challenges that mental health service providers are under. Since the recession, there have been serious problems in filling mental health teams. Vacancies in child and adolescent psychiatrist posts have had a detrimental impact on services, for example. However, despite these problems, Mr Saunders said the MHC cannot abstain from its regulatory responsibility.

“We know that services operate in the real world,” he said. “We know that there are financial restraints. We know that there are physical restraints around building, the type of building and the appropriateness of a building. And we know there are staffing issues in terms of very specific shortages; highlighted at the moment is the shortage around nursing and particularly, there are no psychiatrists in certain parts of the country.

“Indeed, there are also shortages in other paramedical grades, around psychology and social work, and so on. That is the reality. The other reality is that the mental health service has a statutory mandate to provide a certain level of service; it is backed by legislation, it is backed by policy. Our job is to oversee that and regulate that in the context of that real world. So yes, there are issues that people can present as ‘reasons’; we tend not to say they are ‘excuses’, [but] despite those, things have to change. Sometimes the change is not within the service provision or provider, it may be from Government or from other agencies around the health service. We are very clear about the reality of life, but we are also very clear about the need for a very vulnerable group of adults and children in Ireland, who need protection.”

Also speaking to MI, Chief Executive of the MHC Mr John Farrelly said that multidisciplinary teams are not always functioning as they should within services.

“There is certain training that people should undertake, and we find that they fall down in that area,” he said.

“The biggest challenge is having an integrated multidisciplinary approach — that is where the services fall down the most. So you have different people working in different teams but how do you integrate that into care that is organised around the individual? They are the key challenges. It is not my job to run the mental health services. It is my job to regulate them and make sure they are of high quality. If they are not of high quality, they really shouldn’t be there.”

Mental Health Act

The second objective identified in the new statement of strategy is to implement the Commission’s legislative mandate and pursue appropriate changes to the Mental Health Act 2001, the Assisted Decision-Making (Capacity) Act 2015 and other relevant legislation. Regarding the Mental Health Act, Mr Saunders said reform is a matter of urgency.

“We have managed, despite the recession, to maintain and to fulfil the mandate under the Act,” he said.

“What needs to happen is that the Act needs to change to allow us to expand our role, which would mean of course additional resources. The Act is very definite and specific about what we can and cannot do… At the moment, we are mandated to review the acute units, the approved centres under the Act, of which there are 64.

“But there are many services that people use which are not regulated; for example, the hotels and group homes around the country. The day facilities in mental healthcare. The growing number of community mental health teams, who are dealing with people in the community; they are not regulated at the moment. We can inspect and make recommendations on changes, but we can’t enforce that because the Act limits us to regulation and enforcement of the acute units, which of course is where most vulnerable people are.  There are other issues around how we respond to children, and how we need to put together a very specific package of measures to deal with children’s unique needs.”

At the launch, Minister for Mental Health and Older People Jim Daly said it was hoped that draft heads revising the Act would be provided to the Commission by the end of March. 

Tribunals

In May 2017, the High Court ruled that the involuntary detention of a patient on a 12-month renewal order under the Mental Health Act 2001 was incompatible with the European Convention on Human Rights. In May 2018, the Court of Appeal ruled that renewal orders allowing for the involuntary detention of patients for periods not exceeding six months and not exceeding 12 months were unconstitutional. These decisions have resulted in the Mental Health (Renewal Orders) Act 2018, which has implications for the operation of mental health tribunals for the affected patients.

“The tribunals are one of the things the Commission does that is core to the idea of human rights,” according to Mr Saunders.

“What the tribunal does is uphold the right of a third party review of a detention. Remember, there are very few reasons in Ireland why one is detained. The most common reason is the criminal justice system, where someone is detained by the police and the courts. Outside of that, being detained by the mental healthcare service is one of the only reasons why it happens legally. And it is very important that there is a human rights underpinning to that. That is what the tribunals do. The problem, I suppose, is that they do it largely invisibly. Nobody knows about them except the individual and his family members, who are the subject of the tribunal.

“That is a fact of life. It is a private system that works well. The court decision last year was because of an appeal, obviously. And I think we broadly welcome it because the Act did allow for renewal orders for a long period of time, beyond the original detention. I think it is much wiser now that we don’t have that 12-month order at the moment. It has caused us problems in terms of responding to people who are in that situation, but that is fine, that is well and good; that’s our job, to make sure that in this case the constitutional amendment was acted on, and we have done that.”

On the court decision, Mr Farrelly said: “The courts for many years have been the firm line of defence for the vindication of people’s rights and they will always remain that way. So I admire and respect the decisions. And I agree with the decision and it is our job to implement it.”

Decision Support Service

The Assisted Decision-Making (Capacity) Act 2015 was signed by the President on 30 December 2015. It provides for the establishment of the Decision Support Service (DSS) within the MHC to support decision-making by and for adults with capacity difficulties and to regulate individuals who are providing support to people with capacity difficulties.

The Act significantly extends the statutory remit of the Commission to include wide-ranging regulatory and information functions for the Director of the DSS. The Commission is participating in an inter-departmental steering group comprising of officials from the Department of Health and the Department of Justice and Equality in order to advance the resourcing and establishment of the DSS.

Ms Aine Flynn was appointed as Director of the DSS in October 2017.

Overall, progress in establishing the service is taking longer than expected. 

At a MHC management meeting in October 2018, it was noted the project would not be able to meet its target date of quarter one 2020 “due to various delays, some internal and some external”.

The Commission said it needed to get the Department of Justice (DoJ) and the Department of Public Expenditure and Reform (DPER) together to progress ICT needs for the DSS.

“Concern was raised on the time that a DPER review of the ICT project might take, given the work that this requires,” according to minutes of the meeting. “A clear timeline needs to be outlined and how that might impact on the overall timeline of the project.”

The service is now due to commence by the end of 2020, which Mr Saunders admitted will still be a challenge for the Commission.

“It is a challenge on a number of fronts,” he said.

“First of all, it has never been done anywhere else, it is the first time there has ever been a decision support service in Ireland or indeed in most of the developed world. So while the Act is very complex, it is very clear what it sets out, but we actually still are working to know what does this look like in reality and practice.

“We have appointed the Director of the DSS — Aine Flynn. She is working very closely with the Department of Justice, which is the lead on this, to bring the Act to fruition. It will happen. It does require a huge amount of planning and a huge amount of work. It is not just the Commission; we are also working with other partners, other agencies, civic agencies and so on. They are all affected by it.

“Remember, the Decision Support Service is for anybody in this country who finds at some time they need support around capacity. So it is going beyond the mental health constituency. So you could have people with mental health difficulties, you could have people who have acquired brain injury for any reason, people with intellectual disability, people who have dementia, or similar neurological conditions. So, anybody, potentially. But that is a major challenge for us, that we are not just a Commission supporting people within the mental health domain, but we are actually potentially supporting anybody in the country who may need a decision-support service for a period of time.”

Mr Farrelly explained why the creation of the DSS was so important for the Commission.

“At the moment, we act in the ‘best interest’, which is perceived as paternalistic and not the correct way. 

“So again, that is working with the courts, working with all the systems out there, with the health services. So it is a cultural shift in Ireland. But like with any cultural shift, it only happens with the support of people who are out there doing the work. The main structural challenge is that we are also at a time of ‘digital first’ and we are also at a time of immense change within Irish society. So it is making sure that we can link with current services; for example, the citizens’ information [service], to make sure that people know what is available to them. The other thing is, like any organisation, we want Ireland to offer the best services and be the best it can be.”

There are three staff currently employed in the DSS, including the Director. Over the coming months, the staff quota will expand to seven and when the service commences, it is envisaged that the DSS will be employing 39 staff members.  

The Commission has estimated that it requires funding of approximately €8.5 million in 2020 to ensure that the DSS will commence by the end of that year. This figure will be made up of ICT, staffing, external services, communications and overheads. However, a number of factors will influence the overall costs associated with the establishment of the service, including, but not limited to, the scope of the ICT solution, and MHC resources available to support the implementation project activities.

Future of the Commission

The MHC budget was €16.28 million in 2018 and €13 million in 2017. The Commission has budgeted for just over €19 million in 2019. While the 2019 budget allocation from the Department of Justice and Equality has been confirmed at €3.5 million, the allocation for 2019 from the Department of Health has not yet been confirmed. A large portion of the annual budget each year (€8.3 million in 2018, for example) is used to service the mental health tribunals.

Speaking generally, Mr Saunders said the biggest challenge for the Commission is to get support from all stakeholders in the provision for mental health services.

“The Commission is very clear as to what it needs to do,” he said.

“The biggest challenge, I suppose, is making sure everybody else who is on the playing pitch has the same view. To be fair, and to be quite honest, many of the service providers, which is the HSE in the main, and the independent sector, they all realise the need for change. Our job is to give leadership in how that change actually happens, at quite a microscopic level but also at a broader level in terms of systems and structural changes and to make sure that we are all looking in the same direction and working towards a common goal.”

Pictured L to R at the launch of the Mental Health Commission’s new statement of strategy are: Mr John Saunders, Chairman, Mental Health Commission (MHC); Ms Rosemary Smyth, Director of Standards and Quality Assurance, MHC; Minister for Mental Health and Older People Jim Daly; Ms Aine Flynn, Director of Decision Support Service, MHC; and Mr John Farrelly, CEO, MHC.