Regulator's report on the Mental Health Act finds “limited or no improvement” in key concerns raised in previous years

On 1 March the Care Quality Commission published its annual report on Monitoring the Mental Health Act in 2016/17.

The CQC has seen limited or no improvement in the care of people subject to the Mental Health Act in the key areas they have raised in previous years. 

In particular, the regulator found:

  • No improvement in the recording in care plans of evidence of patient involvement, of the views of patients about their care, or of whether clinicians had considered the least restrictive options for care.
  • No reduction in the number of patients whose physical health had not been assessed through examination on admission.
  • No reduction in the number of records examined that showed that patients had not been informed of their legal rights on admission.
  • 15 per cent of records examined showed that patients were not automatically referred to advocacy services where they lacked capacity to decide whether to do so themselves.

These concerns are set out in a helpful infographic at page 11 of the report.

Consent is covered at pages 26 and 27. They note that during visits they frequently raise concerns over whether clinicians have recorded evidence of their conversations with detained patients over their proposed treatment and recorded the patient’s views on that treatment. If a patient is recorded to be incapable of consent they expect to see a capacity assessment. They note the ongoing review of the Mental Health Act led by Professor Sir Simon Wessely and suggest that presents an opportunity to reflect developments in the law around consent post Montgomery v Lanarkshire Health Board even where treatment can be given without consent.

The CQC are also concerned that services hold varying definitions and reporting thresholds of physical restraint and that there is no quality assurance of the physical restraint training programmes. They note that the Mental Health Units (Use of Force Bill) may address this. 

There had been 49 visit issues raised by reviewers about the use of advance decisions or statements during April – December 2017. Some providers are not having conversations with patients during their time as an inpatient about making advance statements. In light of this, the CQC propose further review in 2018. This will form part of CQC’s work programme to evaluate the implementation of the Mental Health Act Code of Practice.

With regard to First-tier Tribunals they are concerned about pressure being put on clinical and social work teams to produce reports. They are going to engage with the Tribunal Service to identify how their work may impact or support each other. They highlight concern expressed by the Tribunal Service at the number of patients discharged by their responsible clinician in the 48 hours before hearings for patients on sections 3 and 37 or community treatment orders.

Finally, Appendix B sets out an analysis of the causes of death and age of death of detained patients.

Our content explained

Every piece of content we create is correct on the date it’s published but please don’t rely on it as legal advice. If you’d like to speak to us about your own legal requirements, please contact one of our expert lawyers.

Posted by


Mills & Reeve Sites navigation
A tabbed collection of Mills & Reeve sites.
My Mills & Reeve navigation
Subscribe to, or manage your My Mills & Reeve account.
My M&R


Register for My M&R to stay up-to-date with legal news and events, create brochures and bookmark pages.

Existing clients

Log in to your client extranet for free matter information, know-how and documents.


Mills & Reeve system for employees.