Report on the Review of the Mental Health (Scotland) Act 1984

Chapter 22

THE REGULATION OF PRIVATE HOSPITALS

1. The 1984 Act contains provisions on the regulation of private hospitals. We have given consideration to whether these provisions are still appropriate, given other developments in the regulation of care. We have concluded that all settings caring for people with mental disorders outside the NHS should be regulated by the same body, the Scottish Commission for the Regulation of Care (CRC).

The regulation of private hospitals in the 1984 Act

2. Part IV of the Mental Health (Scotland) Act 1984 contains provisions on the registration of private hospitals treating detained patients. Under the terms of the Act, private hospitals which wish to treat detained patients must register with Scottish Ministers. However, private hospitals providing psychiatric services to non-detained patients instead require to be registered and regulated by health boards, under the provisions of the Nursing Homes Registration (Scotland) Act 1938. There are not, at present, any hospitals registered under the Mental Health (Scotland) Act in Scotland, although similar facilities are relatively widespread in England. The position of Scottish Ministers is anomalous, in that they do not have responsibility for registering other comparable health care establishments.

The Scottish Commission for the Regulation of Care

3. In addition to Part IV of the 1984 Act, a number of different pieces of regulatory legislation apply in different care settings: amongst these are the Nursing Homes Registration (Scotland) Act 1938, the Social Work (Scotland) Act 1968, and the Children Act 1989. Each of these requires a different set of standards from the care setting(s) to which they relate and the monitoring of these standards falls to a variety of different authorities to undertake.

4. Prior to 1999, concerns had been raised with the UK Government that the complexity of the legislative situation was leading to inconsistencies in the standards of care provided. In response to this, the Government's White Paper "Aiming for Excellence"¹² contained a proposal that a new body, the Scottish Commission for the Regulation of Care, should be set up. This body was to be charged with undertaking all registration, inspection, enforcement and complaints investigation functions relating to residential and nursing homes.

5. Since publication of the White Paper there have been two related consultations undertaken by the Scottish Executive. One is on the proposals contained in the White Paper¹³ and the other is on the future regulation of private and voluntary healthcare¹⁴. The latter consultation paper asked questions, relevant to our Committee, on what the most appropriate body would be to undertake the registration and inspection of private hospitals caring for detained patients. It has been followed by a policy position paper: 'Regulating the Independent Healthcare Sector' issued in November 2000.

6. Subject to consultation and the completion of the Parliamentary process, we understand that the Scottish Executive intends that the CRC should be operational from April 2002.

The role of the Commission for the Regulation of Care in relation to private psychiatric hospitals

7. In our first Consultation document we asked whether respondents were in favour of the transfer of the regulation of private hospitals caring for detained patients to the CRC. The majority of responses that we received on this matter were in favour of such a transfer.

8. We agree with the majority view that the role should not remain with Ministers. We considered whether any other body, other than the CRC, could take on this responsibility. Given the lack of such establishments in Scotland, a new and separate body would seem unjustified. We considered whether the Mental Welfare Commission could take on this responsibility, but the registration role would not seem to fit well with the Mental Welfare Commission's responsibility independently to monitor the welfare of individual patients.

9. There is a case that could be made for such a role being carried out by the Scottish Health Advisory Service (SHAS). This might ensure consistency in standards between NHS and independent sector care for detained patients. However it would require changes to the organisation of SHAS, which is a non-statutory body, and would perpetuate two different regimes for detained and non detained patients.

10. We believe that detained and non-detained patients should not be subject to separate registration and inspection, as this has the potential to cause confusion and inconsistencies in approach. We also believe that, given the expertise in standards-setting and monitoring which the CRC will have, monitoring of mental health care in all private hospitals by the CRC will help to ensure that there are high standards of care in place for all mental health service users, irrespective of their legal status.

11. We therefore take the view that should the CRC, as proposed, take over from health boards the registration and inspection of private hospitals treating non-detained psychiatric patients, it should also take over these functions from Scottish Ministers, in relation to private hospitals treating detained patients.

12. We welcome the fact that the Scottish Executive's view, as described in its recent consultation paper on the regulation of private and voluntary healthcare, accords with our view on this matter.

The role of the Commission for the Regulation of Care in relation to nursing and residential care homes

13. The 1984 Act does not currently permit nursing or residential care homes to care for patients subject to detention. Any such patients must be cared for in an establishment registered as a private hospital. This may lead to artificial barriers being raised, for example, between elderly patients with symptoms of dementia who may be cared for in a nursing home setting and those who may have similar disorders but are subject to detention, who must be cared for in a hospital.

14. As we say in Chapter 6, the Committee is in favour of a relaxation of the link between compulsion and detention in hospital. It is in line with our recommendations there that a person may be subject to compulsion relating to their treatment and care yet be able to reside in a place of their own choosing. We take the view that there should be no legal barrier to this place of residence being a nursing or residential care home, if that is appropriate and in keeping with the person's wishes.

15. Alternatively, the obligation to reside in a named place could be one element of the compulsion to which a person is subject. This would be detailed in the person's plan of care. There may be circumstances when that place would most appropriately be a nursing or residential care home rather than a hospital. We believe that there should be no legal barrier to this being permissible.

Standards

16. The CRC will set standards for the establishments caring for people with mental disorders. Clearly, appropriate, well-defined standards of accommodation, staffing and care will have to be set and met before an establishment may undertake the care of people with mental disorders. However, there is a question as to whether there should be different criteria set for establishments caring for people subject to compulsion, and establishments caring only for voluntary patients.

17. In favour of having specific criteria for services for patients subject to compulsion is the principle of Reciprocity: in other words, there is a need for a high standard of care to be made available when a person is being denied certain key rights and freedoms as a result of his or her mental disorder.

18. When dealing with patients subject to compulsion, there may also be security needs which do not apply to establishments caring only for voluntary patients. Similarly, there may be a need to ensure the competency of staff in techniques of, for example, humane restraint.

19. It has been suggested to us that some establishments may wish to deal only with voluntary patients as they have a therapeutic approach which seeks to avoid the need for coercion. Potentially, this could be undermined by the need for inappropriate security standards to be met.

20. To have different standards in place for the two groups might also dissuade some establishments from caring for patients subject to compulsion, on the grounds of cost or inconvenience. This would reinforce the distinction between the two groups, and perhaps make finding appropriate accommodation for patients subject to compulsion more difficult.

21. We note that in the Scottish Executive's consultation document on the regulation of private and voluntary healthcare, the Executive proposes that the CRC would have reference to a basic core set of standards, which would apply to all establishments. Beyond that, the document suggests, specific standards for each type of establishment would be in place:

"These standards would be proportionate to the type of services provided and the risks to the patients involved... Appropriate standards will need to be set for the care of vulnerable groups including children"¹⁵.

22. This flexible approach is attractive. Within that general context, we have concluded that it is not appropriate for us to seek to restrict unduly the discretion of the CRC in setting standards appropriate for residents or patients with mental disorder. The CRC will be an expert body, and best placed to make decisions on the level and types of standards it wishes to set.

23. We therefore recommend that standards for care of mentally disordered persons in private accommodation should be set by the CRC, and the CRC should address the question of whether there should be different standards for client groups with different legal status.

The role of the Mental Welfare Commission

24. The Mental Welfare Commission has a protective role relating to all patients with mental disorders. We recommend in Chapter 23 that it should have the power to visit community services and facilities, with the same power to conduct interviews and inspect records as it has for hospitals. This power would encompass establishments registered by the CRC, and it will be important for the two organisations to work together effectively.

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