Research by Hannah Scholfield, University of Bath, on behalf of the Hundredfamilies charity

ABSTRACT

Context:           There has been widespread concern about the apparent lack of available psychiatric beds in England and Wales to urgently assess and care for people experiencing a mental health crisis. The lack of appropriate local beds can lead to inappropriate out of area placements, unlawful detention in police stations, unwell people being discharged too early, and a failure to provide effective care resulting in avoidable tragedies. Section 140 of the Mental Health Act 1983 required Clinical Commissioning Groups (CCGs) in England and Local Health Boards (LHBs) in Wales to make arrangements for psychiatric beds to be made available for cases of special emergency. Given the apparent problems in securing emergency psychiatric beds we wanted to find out how well Section 140 was working in practice.

Method:           We made Freedom of Information requests to all 110 CCGs and Health Boards in England and Wales to determine how far they are fulfilling their responsibilities under Section 140 to provide emergency psychiatric beds.

What is new:    As far as we are aware, this is the first time national data on local Section 140 provision has been published.

Results:            We found large numbers of CCGs were not able to evidence they were fulfilling their obligations under Section 140 of the Mental Health Act.

• 31% of CCGs could not provide information on hospitals providing Section 140 beds.
• 45% could not provide information on what arrangements are in place for Section 140 cases.
• 64% were not able to provide a local joint policy on Section 140.

Some CCGs even appeared ignorant of their basic responsibilities under their act.

Takeaways:      Large numbers of CCGs, responsible for many millions of people in England and Wales, appear not to be making provision for emergency psychiatric beds for people in crisis. This constitutes a risk to the safety of patients, their families and the wider public.

Background

The UK is facing a mental health crisis. Rates of mental illness are rising, while resources and beds are becoming harder to access (Duggan, 2021) the bar for hospital admission is increasing, making it harder to access mental health beds (The Strategy Unit, 2019).

Entry requirements for mental health hospital admissions have risen to the point that community care programmes previously dealing with smaller caseloads and preventative support are now expected to deal with cases far beyond their capabilities. Pressure is therefore placed on Accident and Emergency departments and hospitals as they are faced with all the patients unable to access effective treatment and support before their mental health declined to the point of admission (The Strategy Unit, 2019).

An increase in reported mental illness in the UK has also raised the pressure on Police services. Police officers detaining mental health patients under Section 136 of the Mental Health Act are being forced to either unlawfully detain individuals for a longer period of time or release them when no hospital bed can be found (Burns & Dilley, 2021; Care Quality Commission, 2019). To be held in a cell without medical care, rather than a hospital bed is very clearly detrimental to the delicate mental health of these patients and yet police officers can see little option in certain cases.

Out-of-area placements (OAPs) are another practice considered “disastrous for patients and their loved ones” as it jeopardises “patients’ chances of recovering” (Campbell, 2021). Unfortunately, OAPs are becoming increasingly common despite the NHS being fully aware of the consequences of such a distressing move for already fragile patients (The Masked AMHP, 2017). What other choice is there however, when Approved Mental Health Professionals (AMHPs) aren’t aware of the beds available in their CCG’s area and are unable to source one?

Section 140

Section 140 of the Mental Health Act was designed to protect and provide for patients in cases of special urgency, ensuring Clinical Commissioning Groups inform local services and Approved Mental Health Professionals (AMHPs) of the hospital beds available for patients in crisis and for those under the age of 18.

Although a similar provision was included in the original 1959 Mental Health Act, the current version of Section 140 has existed since 1983. The law says –

It shall be the duty of every clinical commissioning group and of every Local Health Board 

to give notice to every local social services authority for an area wholly or partly comprised within the area of the clinical commissioning group or Local Health Board

specifying the hospital or hospitals administered by or otherwise available to the clinical commissioning group or Local Health Board in which arrangements are from time to time in force

(a) for the reception of patients in cases of special urgency;

(b) for the provision of accommodation or facilities designed so as to be specially suitable for patients who have not attained the age of 18 years

The Department of Health augmented these requirements in 2015 by additional guidance in Chapter 14 of the Mental Health Act Code of Practice requiring CCGs to

• provide a list of hospitals where they commission specialist beds
• have a clear joint policy with other agencies for the safe and appropriate admission of people in the local area
• appoint a named senior lead for oversight of that policy.

What we did

With this in mind, Hundred Families explored CCGs’ knowledge of Section 140 arrangements in their area.

We sent Freedom of Information Requests to all 110 CCGs in England and Local Health Boards (LHBs) in Wales asking for information on their Section 140 policy.

We asked four questions:

1. Please could you provide a list of the hospitals specified under the Section 140  (Mental Health Act 1983) arrangements in your area, and how many beds are available?
2. Please can you tell me what arrangements are in place for the reception of patients in cases of special urgency?
3. Can you provide information about, or a copy of the local joint policy between the local authorities, services, and NHS commissioners for Section 140 of the Mental Health Act?
4. Who are the Senior Leads for each party in this joint policy?

The responses were then analysed to ascertain the number of CCGs able to provide information for each question and evaluate the effectiveness and understanding of Section 140 over England and Wales.

Results

Question One: Please could you provide a list of the hospitals specified under the Section 140  (Mental Health Act 1983) arrangements in your area, and how many beds are available?

• 69% of CCGs (76 out of 110 ) were able to provide information on hospitals providing Section 140 beds
• 31% of CCGs – responsible for around 20 million people in England and Wales – could not

One of the most fundamental aspects of Section 140 is the CCG’s ability to provide the names of the hospitals available to admit patients in circumstances of special urgency. A surprising number of CCGs, however, were unable to provide this information, or needed to be reminded of their duty under the Mental Health Act to give adequate answers. A significant number passed the responsibility to their local Trust, providing contact information in lieu of an answer. Trafford CCG suggested the majority of CCGs would be unable to answer our request, as they believed it was ‘common’ for CCGs to not have a list of specific hospitals available in their area, demonstrating a wilful disregard for laws created to keep people safe.

A seemingly simple question asking for a list of Section 140 beds available created confusion for some CCGs, uncovering a concerning and basic lack of legal literacy in relation to this policy. Vale of York CCG only provided information on the CAHMS beds in their area and completely disregarded adult services, despite an attempt to clarify the question, stating they didn’t have access to this information. Hywell Dda Health Board requested clarification on the term ‘special urgency’, which appears in Section 140 legislation. The Department of Health and Social Care (DHSC) (2019) also noted a lack of understanding of Section 140 and the 2015 Code of Practice within their report on the subject. Lack of clarity within legislation raises concerns of an inconsistent level of care across the NHS, confusion over roles and responsibilities expected of each department, and miscommunication throughout the entire process, from admission to discharge to community care.

CCGs’ awareness of available Section 140 beds is key for this section of the Mental Health Act to work effectively. Without CCGs providing this information, how can AMHPs apply to hospitals for beds when they aren’t aware of which hospitals have available beds (The Masked AMHPs, 2017)?

Question Two: Please can you tell me what arrangements are in place for the reception of patients in cases of special urgency?

• 55% of CCGs (60 out of 110) could provide information on what arrangements are in place for Section 140 cases
• 45%  – responsible for 26 million people – could not

Just over half of the CCGs were able to provide adequate information on their Section 140 arrangements. However, that still leaves a concerning number who were seemingly unaware of the procedures in place, with many CCGs attempting to pass this question onto their local Trust. It doesn’t need to be said how concerning it is that CCGs – who should be a key part of orchestrating and managing Section 140 admissions – appear to be unaware of the policies and processes involved in Section 140. Previous research and accounts from NHS staff and those affected have identified miscommunication as a key issue within Section 140 (The Masked AMHP, 2017; Bennet, 2019). Without effective channels of communication patients are left without beds, AMHPs are unable to admit patients, and admission and discharge processes become unnecessarily complicated. The failure of the system to create a smooth admission process and hospital experience can directly result in the continued decline in patient’s mental wellbeing and in some cases – for example the tragic case of Nigel Abbott (Bennet, 2019)- miscommunication within the NHS can lead to avoidable loss.

Question Three: Can you provide information about, or a copy of the local joint policy between the local authorities, services, and NHS commissioners for Section 140 of the Mental Health Act?

Question Four : Who are the Senior Leads for each party in this joint policy?

We obtained similar results for questions 3 and 4

• 36% of CCGs (40 out of 110) were able to provide information on, or a copy of, a local joint policy on Section 140
• 64% – responsible for 36 million people – could not
• 40% of CCGs (44 out of 110) could provide information on the Senior Leads cited in their Joint policy
• 60% – responsible for nearly 33 million people – could not

Knowledge of local joint policies proved to be even more rare, with only 36% of CCGs able to provide information. A significant number claimed their joint policies were under review, however gave no further information on previous policies or the aims of this newer policy.

While this policy isn’t required by the Mental Health Act, it is strongly recommended by the 2015 Code of Practice. Without this joint policy, there will be a disconnect between local authorities, police, paramedics, hospitals, and social services. Having no joint policy runs the risk of failing to communicate effectively, which could have disastrous consequences for patients and the wider community.

Of all the CCGs asked, Stockport was the only one who refused to give any answer to our Information Request. Despite multiple attempts to make contact with the CCG, we received no reply to any of our questions and no explanation as to why.

Discussion

Failure to effectively execute Section 140 can have – and has had – severe consequences for the NHS, patients, their families and loved ones, and the wider community. Miscommunication within the NHS and misunderstandings of the Mental Health Act can directly affect service admission, discharge into community services, and patients’ access to effective treatment, even going so far to breach human rights.

Cases such as the murder of Nigel Abbott in 2018 (Bennet, 2019), Allan Wallace’s attack and subsequent death (Airey, 2018), Trevor Killington’s suicide (Hannant, 2022), William O’Driscoll’s assault of his neighbour (Smith, 2022), and Elena Wells’ death (Palmer, 2020) can clearly be tracedback to the NHS’ failure to admit patients to emergency beds despite the need to use Section 140.

Nigel Abbott’s attacker’s family had been attempting to admit him to emergency services for hours before the attack and had even convinced him to pack a bag for the hospital. However, a catastrophic failure to escalate concerns or communicate with out of hours teams or the family resulted in a tragic attack and the death of Nigel Abbott (Bennet, 2019).

In the same year, Allan Wallace was attacked by a dementia patient with a history of past assaults in their nursing home. Despite attempts to move this patient to more suitable care, the lack of mental health beds ultimately led to the attack and death of Wallace, calling into question the difficulty in finding a bed and the communication between the NHS, nursing home and Lancashire County Council (Airey, 2018).

In the case of Trevor Killington, community care attempts were clearly insufficient in treating Mr Killington’s mental health, however the NHS failed to admit him into hospital due to disagreements and miscommunication within the Norfolk and Suffolk NHS Foundation Trust (Hannant, 2022).

William O’Driscoll’s attack on his neighbour was found to be similarly preventable; a failure to escalate and the concerning lack of mental health beds failed to protect both O’Driscoll and his victim (Smith, 2022).

Ms Elena Wells was similarly failed by the communication avenues within the NHS. The coroner’s report into her suicide directly referenced the NHS’s “confusion over who held overall responsibility” for Ms Well’s care, and delays in finding a suitable bed and transportation (Palmer, 2020). A clear joint local policy and additional urgent support for patients waiting for Section 140 beds were called for in response to this incident.

The defining aspects of each of these cases are the miscommunication between different services involved in Section 140 admission, and a dangerous lack of beds for mental health patients.

The lack of suitable beds available often results in delayed admission and Out of Area Placements (OAPs), in which patients are sent to an available bed wherever this may be in the UK. OAPs are unanimously recognised as a damaging practice which can have “devastating, long-lasting consequences” for the mental health of the patient sent miles away from their loved ones for undecided periods of time (RCPsych, 2022).

Similarly, the use Police detainment to protect patients in acute mental health crises in the absence of available beds has the potential to violate human rights to liberty and security (Article 5, Human Rights Act, 1998) and rights to life (Article 2, Human Rights Act, 1998). Police time and funding is being used to unlawfully detain individuals as an absolute last resort (Burns & Dilley, 2021) despite the knowledge that this practice can traumatise patients and delay their access to the care they so clearly need.

If nothing else, the cost of unnecessary OAPs, police detainment and NHS use of private sector beds is money which should be used to provide treatment for patients in need. Instead, the NHS are using their limited funding in an attempt to patch up the gaps left by a lack of mental health beds, spending £102 million on inappropriate OAPs in the past year (RCPsych, 2022).

The DHSC Briefing document for CCGs and local authorities (DHSC, 2019) made similar findings to this research; Section 140 guidance is not being implemented properly in many areas of the country, with a lack of awareness amongst professionals and organisations of the meaning and responsibilities of section 140. The DHSC advised more work must be done to ensure Section 140 is understood and implemented nationally.

Shortly afterwards, this briefing paper was ‘temporarily’ withdrawn from the Gov. website but does not appear to have re-appeared since.

Strengths and Limitations

Strengths:

• This research has reached every CCG in England and Wales with standardised questions to get a full picture of the issues Section 140 of the Mental Health Act is facing.We have therefore gathered the information necessary to highlight the CCGs unable or unwilling to provide information they should be able to deliver or to compare these CCG’s responses in future research.

• This research – as far as we are aware- is the first time national data on local Section 140 provision has been published.

Limitations:

• We were dependent on the knowledge and accuracy of responses we received from CCG Freedom of Information Act departments.
• As of the Health and Care Act 2022, CCGs have been substituted for Integrated Care Boards (ICBs) (Health and Care Act, 2022). While our findings focus on CCGs as they were at the time of research, the points and results of this research is still applicable and relevant to the current system. ICBs still need to consider the effectiveness of their Section 140 knowledge and arrangements, and the impact – positive or negative- they are having on the individuals they are responsible for.
• Finally, this research is charity led. All the information we have gathered is accurate according to information we have access to and to our best knowledge. However, this is not a fully peer reviewed report.

Conclusions

Section 140 is clearly an area of confusion within the NHS. With the mental health of patients at stake, the NHS needs to improve their approach to Section 140 before the demand for mental health beds becomes completely overwhelming. In light of our findings highlighting significant failings by CCGs, the new Integrated Care Boards will urgently need to evaluate their legal literacy and execution of Section 140 before amending any issues or gaps within their system. On a larger scale, Section 140 and the 2015 Code of Practice needs to be clarified to allow knowledge and training to be standardised across England and Wales. We suggest Mental Health Professionals should understand the responsibilities of each role and the escalation systems in place. The harmful nature of OAP placements make this another area desperately in need of change. These placements for people in crisis are best tackled by increasing mental health bed numbers and clearly communicating exactly where these beds can be found.

It should be acknowledged that the NHS is struggling with a severe lack of resources and funding. These issues can’t be resolved overnight, and individual healthcare professionals are not at fault for systematic issues. However, a lack of funding is not an excuse for CCG’s insufficient knowledge of Section 140 beds, it is not an excuse for their failure to communicate, and it is not an excuse for their blatant disregard for the law. Patients in need of help, their families, and innocent members of the public are suffering because of this disorganisation and that is unacceptable.

References

Airey, R., 2018. Care home death inquiry in Hyndburn flags up bed delays [online]. UK: Lancashire Telegraph. Available from: https://www.lancashiretelegraph.co.uk/news/16909632.care-home-death-inquiry-hyndburn-flags-bed-delays/

Bennet. J., 2019. Regulation 28 Report to Prevent Future Deaths: Nigel Abbott. Courts and Tribunals Judiciary

Burns. J., Dilley. S., 2021. Mental Health Crisis ends in cells for too many, snapshot suggests [Online]. UK: BBC News. Available from: https://www.bbc.co.uk/news/uk-58270064

Campbell, D., 2021. Minister’s under fire over breaking of mental health crisis pledge in England [Online]. UK: The Guardian. Available from: https://www.theguardian.com/society/2021/sep/29/ministers-under-fire-over-breaking-of-mental-health-crisis-pledge-in-england?CMP=Share_iOSApp_Other

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Department of Health and Social Care, 2019. S140 MHA Act 1983: Briefing for Clinical Commissioning Groups and Local Authority Partners. GOV.UK

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Hannant, D., 2022. Gamekeeper took own life days after being told he didn’t need hospital bed [online]. Eastern Daily Press. UK: Available from: https://www.edp24.co.uk/news/health/norwich-gamekeeper-trevor-killington-inquest-9213848

Health and Care Act 2022, schedule 4 paragraph 19, HMSO

Human Rights Act, 1998, Article 5. London

The Masked AMHP. 2017. Who’s Responsible for Finding a Bed? [online]. Available from: https://themaskedamhp.blogspot.com/2017/08/whos-responsible-for-finding-bed.html [Accessed 16/09/2021]

Mental Health Act 1983, s.140, HMSO

Palmer, C., 2020. Regulation 28: Report to Prevent Future Deaths: Elena Wells. Courts and Tribunals Judiciary

Royal College of Psychiatrists (RCPsych), 2022. Mental health patients still sent hundreds of miles away from home for treatment. Royal College of Psychiatrists [online]. 13th June. Available from: https://www.rcpsych.ac.uk/news-and-features/latest-news/detail/2022/06/13/mental-health-patients-still-sent-hundreds-of-miles-away-from-home-for-treatment

Smith. R., 2022. Lack of mental health beds saw psychiatric patient stab neighbour after being left in his flat. LancsLive. Available from: https://www.lancs.live/news/lancashire-news/lack-mental-health-beds-saw-23028037

The Strategy Unit, 2019 Exploring Mental Health Inpatient Capacity across Sustainability and Transformation Partnerships in England. Royal College of Psychiatrists