Recording of use of force

Mental Health Units (Use of Force) Bill – in a Public Bill Committee am 9:30 am ar 25 Ebrill 2018.

Danfonwch hysbysiad imi am ddadleuon fel hyn

Photo of Steve Reed Steve Reed Shadow Minister (Digital, Culture, Media and Sport) (Civil Society) 9:30, 25 Ebrill 2018

I beg to move amendment 94, in clause 7, page 4, line 15, leave out subsection (1) and insert—

“(1) The responsible person for each mental health unit must keep a record of any use of force by staff who work in that unit in accordance with this section.”

This amendment replaces Clause 7(1) and inserts a revised duty on responsible persons to record the use of force in mental health units in accordance with that clause.

Photo of James Gray James Gray Ceidwadwyr, North Wiltshire

With this it will be convenient to discuss the following:

Amendment 88, in clause 7, page 4, line 15, at end insert—

“(1A) Subsection (1) does not apply in cases where the use of force is negligible.

(1B) Whether the use of force is ‘negligible’ for the purposes of subsection (1A) is to be determined in accordance with guidance published by the Secretary of State.

(1C) Section 6(1B) to (3B) apply to guidance published under this section as they apply to guidance published under section 6.”

This amendment would mean that the duty to record information regarding the use of force would not apply in cases where the use of force is negligible.

Amendment 37, in clause 7, page 4, line 16, leave out subsection (2).

This amendment removes the requirement for the Secretary of State to prescribe in regulations the information that must be recorded under Clause 7.

Amendment 38, in clause 7, page 4, line 18, leave out lines 18 and 19 and insert

“The record must include the following information—”.

This amendment is consequential on Amendment 37.

Amendment 39, in clause 7, page 4, line 19, at the end insert—

“( ) the reason for the use of force;”.

This amendment would require the responsible person to record the reason for a use of force.

Amendment 40, in clause 7, page 4, line 20, leave out “time” and insert “date”.

This amendment replaces the requirement to record the time of a use of force with a requirement to record the date of a use of force.

Amendment 41, in clause 7, page 4, line 21, leave out paragraph (b) and insert—

“(b) the type or types of force used on the patient;”.

This amendment clarifies that the responsible person should record the types of force used in cases where more than one type of force is used.

Amendment 89, in clause 7, page 4, line 21, at end insert—

“() whether the type or types of force used on the patient form part of the patient’s care plan;”.

The amendment inserts a requirement for responsible persons to record whether the force used on a patient formed part of the patient’s care plan.

Amendment 43, in clause 7, page 4, line 22, leave out “identity of the patient” and insert

“name of the patient on whom force was used”.

This amendment makes a drafting change to refer to “name” rather than “identity” in Clause 7(3)(c).

Amendment 44, in clause 7, page 4, line 22, at end insert—

“( ) a description of how force was used;”.

This amendment inserts a requirement for responsible persons to record how force was used. For example, if physical restraint was used, the responsible person would need to record what particular technique was used on the patient.

Amendment 45, in clause 7, page 4, line 22, at end insert—

“(ca) the patient’s consistent identifier;”.

This amendment inserts a requirement for responsible persons to record the patient’s consistent identifier, which the patient’s “NHS number”.

Amendment 46, in clause 7, page 4, line 23, leave out “identity” and insert “name”.

This amendment makes a drafting change to refer to “name” rather than “identity” in Clause 7(3)(d).

Amendment 90, in clause 7, page 4, line 23, leave out “those who restrained” and insert

“any member of staff who used force on”.

This amendment ensures consistency of language with the rest of Clause 7.

Amendment 48, in clause 7, page 4, line 24, leave out

“anyone not employed by the registered manager” and insert

“any person who was not a member of staff in the mental health unit”.

This amendment makes a drafting change to clarify that the responsible person needs to record whether a person who was not a member of staff at the mental health unit was involved in a use force.

Amendment 49, in clause 7, page 4, line 26, leave out

“disorders or main mental disorder” and insert “disorder (if known)”.

This amendment clarifies that the responsible person only needs to record a patient’s mental disorder if it is known. It also makes the language consistent with the Mental Health Act 1983.

Amendment 50, in clause 7, page 4, line 27, after “patient” insert “(if known)”.

This amendment clarifies that the responsible person only needs to record a patient’s relevant characteristic if they are known.

Amendment 51, in clause 7, page 4, line 28, leave out “had” and insert “has”.

This amendment is a drafting change so that Clause 7(3)(h) uses the present tense.

Amendment 52, in clause 7, page 4, line 28, leave out “autism” and insert “autistic spectrum disorders”.

This amendment ensures consistency with the Autism Act 2009 and the Code of Practice published under the Mental Health Act 1983.

Amendment 53, in clause 7, page 4, line 29, leave out paragraph (i).

This amendment leaves out the requirement to record whether any medication was administered during the use of force. This information should be recorded by virtue of Amendment 44.

Amendment 54, in clause 7, page 4, line 30, at end insert—

“( ) a description of the outcome of the use of force;”.

This amendment requires a responsible person to record a description of the outcome of a use of force.

Amendment 91, in clause 7, page 4, line 31, leave out paragraph (j) and insert—

“(j) whether the patient died or suffered any serious injury as a result of the use of force;”.

This amendment requires a responsible person to record whether a use of force resulted in a death or serious injury.

Amendment 56, in clause 7, page 4, line 35, leave out “all” and insert “any”.

This amendment makes a drafting change.

Amendment 57, in clause 7, page 4, line 35, leave out “restrain” and insert “use force on”.

This amendment ensures consistency of language with the rest of Clause 7.

Amendment 92, in clause 7, page 4, line 35, at end insert—

“() whether a notification regarding the use of force was sent to the person or persons (if any) to be notified under the patient’s care plan;”.

This amendment requires a responsible person to record whether a notification regarding a use of force on the patient was sent in accordance with the patient’s care plan.

Amendment 59, in clause 7, page 4, line 36, leave out paragraph (l).

This amendment removes the requirement for a responsible person to record whether consent was given by the patient before force was used on the patient.

Amendment 61, in clause 7, page 4, line 38, leave out “an entry in”.

This amendment ensures consistency of language with Clause 7(1).

Amendment 62, in clause 7, page 4, line 38, leave out “at least 10” and insert “3”.

This amendment reduces the number of years that records must be kept under Clause 7 from 10 years to 3 years.

Amendment 64, in clause 7, page 4, line 39, leave out from “made” to end of line 42.

This amendment removes the requirement for records to be kept at a mental health unit.

Amendment 65, in clause 7, page 4, line 42, at end insert—

“( ) In subsection (3)(ca) the ‘patient’s consistent identifier’ means the consistent identifier specified under section 251A of the Health and Social Care Act 2012.”

This amendment is linked to Amendment 45 and defines “patient’s consistent identifier”.

Amendment 95, in clause 7, page 4, line 42, at end insert—

“( ) This section does not permit the responsible person to do anything which, but for this section, would be inconsistent with—

(a) any provision made by or under the Data Protection Act 1998, or

(b) a common law duty of care or confidence.”

This amendment clarifies that the responsible person’s duty to keep a record of any use of force on a patient and to retain that information is subject to the Data Protection Act 1998 and the common law duties of care and confidence.

Amendment 66, in clause 7, page 5, line 3, leave out paragraph (c).

This amendment removes a paragraph from the definition of “relevant characteristics” that deals with gender reassignment.

Amendment 67, in clause 7, page 5, line 6, leave out from “pregnant” to the end of line 7.

This amendment removes from the definition of “relevant characteristics” whether a patient has maternal responsibility for the care of a child.

Amendment 68, in clause 7, page 5, line 12, leave out subsection (6) and insert—

“( ) Expressions used in subsection (5) and Chapter 2 of Part 1 of the Equality Act 2010 have the same meaning in that subsection as in that Chapter.”

This amendment make a drafting change to ensure that the relevant characteristics in Clause 7 are interpreted by reference to the meaning of the protected characteristics in the Equality Act 2010.

Clause stand part.

Photo of Steve Reed Steve Reed Shadow Minister (Digital, Culture, Media and Sport) (Civil Society)

It is a pleasure to serve under your chairmanship, Mr Gray. I hope a few more of my colleagues will turn up before we get too far through this morning’s business. It is a pleasure to see everybody here, and I hope that we will make a little more progress this morning than we did last week. I am sure we will, thanks to the money resolution that was laid yesterday evening—I thank the Minister for ensuring that that could go ahead.

Clause 7 creates a new duty to keep a record of any use of force on a patient in a mental health unit. Currently, it is not possible to find out how or when force is used, or to compare one hospital with another regarding the way, and extent to which, they use force. Requiring mental health units to collect and record data in the same way will ensure transparency in our mental health services, meaning that if force is used disproportionately against particular groups, such as black, Asian and minority ethnic patients or women, we will have a mechanism to expose it and, if necessary, to prevent it, and to ensure that the services operate equally for everybody.

Most of the amendments are minor changes to ensure that we are recording information consistently. They are based on information collected in a local incident report, and are in keeping with the data protection principles. They also ensure that the relevant characteristics of the patient, such as age, gender and ethnicity, are recorded in line with the Equality Act 2010, ensuring consistency across the Government system. Further detail about information to be recorded will be set out in guidance under clause 6.

Amendment 88, which the Government were keen to include and I was happy to table, means that the duty to record information will not apply in cases where the use of force is negligible. Statutory guidance will set out the meaning of “negligible”, so it is important that that definition, provided by the Secretary of State, is right and defines the term very tightly. In some cases, the minor use of force, such as guiding a patient by the elbow, should clearly not need to be recorded, as that would create an unnecessary burden on professionals working in mental health units. However, I know that the Minister is aware of the need to avoid that becoming a loophole.

The guidance will be subject to consultation, and I know that advocacy groups, which have been providing so much support to us all as the Bill has progressed, have concerns that they want to raise. The consultation will allow them to do so formally, and I welcome that, because the Bill has so far proceeded on the basis of consensus. Indeed, that is the only way that it will succeed.

Photo of Jackie Doyle-Price Jackie Doyle-Price The Parliamentary Under-Secretary for Health and Social Care

It is a pleasure to serve under your chairmanship this morning, Mr Gray. As the hon. Gentleman explained, the clause and amendments will impose a duty on a responsible person to keep a record of any use of force by staff who work in the unit. The aim behind all the measures is to bring greater transparency to the use of force. Through transparency, we can ensure accountability. What is not to like about that?

I am grateful to the hon. Gentleman and to the interest groups to which he referred for the dialogue we have had to get this right. The list of information required, as amended by this group of amendments, is welcomed by the Government. It provides clarity and consistency, with positive and proactive care guidance. We know that there are currently limitations, and we believe that this proposal will make a material improvement for all concerned—patients and institutions alike.

The hon. Gentleman referred to guidance. I am aware of some of the concerns that have been raised by some lobbyists. I would reiterate what he said: we have embarked on taking this Bill forward with him in the spirit of constructive dialogue, and we hope to bring everyone with us. When the Bill becomes an Act—touch wood—and it is then implemented through guidance, it is very much our intention to take the development of that guidance through in the same spirit. We will involve all interested parties in drafting that guidance.

Amendment 94 agreed to.

Amendments made: 88, in clause 7, page 4, line 15, at end insert—

“(1A) Subsection (1) does not apply in cases where the use of force is negligible.

(1B) Whether the use of force is ‘negligible’ for the purposes of subsection (1A) is to be determined in accordance with guidance published by the Secretary of State.

(1C) Section 6(1B) to (3B) apply to guidance published under this section as they apply to guidance published under section 6.”.

This amendment would mean that the duty to record information regarding the use of force would not apply in cases where the use of force is negligible.

Amendment 37, in clause 7, page 4, line 16, leave out subsection (2).

This amendment removes the requirement for the Secretary of State to prescribe in regulations the information that must be recorded under Clause 7.

Amendment 38, in clause 7, page 4, line 18, leave out lines 18 and 19 and insert—

“The record must include the following information—”.

This amendment is consequential on Amendment 37.

Amendment 39, in clause 7, page 4, line 19, at the end insert—

“( ) the reason for the use of force;”.

This amendment would require the responsible person to record the reason for a use of force.

Amendment 40, in clause 7, page 4, line 20, leave out “time” and insert “date”.

This amendment replaces the requirement to record the time of a use of force with a requirement to record the date of a use of force.

Amendment 41, in clause 7, page 4, line 21, leave out paragraph (b) and insert—

“(b) the type or types of force used on the patient;”.

This amendment clarifies that the responsible person should record the types of force used in cases where more than one type of force is used.

Amendment 89, in clause 7, page 4, line 21, at end insert—

“() whether the type or types of force used on the patient form part of the patient’s care plan;”.

The amendment inserts a requirement for responsible persons to record whether the force used on a patient formed part of the patient’s care plan.

Amendment 43, in clause 7, page 4, line 22, leave out “identity of the patient” and insert—

“name of the patient on whom force was used”.

This amendment makes a drafting change to refer to “name” rather than “identity” in Clause 7(3)(c).

Amendment 44, in clause 7, page 4, line 22, at end insert—

“( ) a description of how force was used;”.

This amendment inserts a requirement for responsible persons to record how force was used. For example, if physical restraint was used, the responsible person would need to record what particular technique was used on the patient.

Amendment 45, in clause 7, page 4, line 22, at end insert—

“(ca) the patient’s consistent identifier;”.

This amendment inserts a requirement for responsible persons to record the patient’s consistent identifier, which the patient’s “NHS number”.

Amendment 46, in clause 7, page 4, line 23, leave out “identity” and insert “name”.

This amendment makes a drafting change to refer to “name” rather than “identity” in Clause 7(3)(d).

Amendment 90, in clause 7, page 4, line 23, leave out “those who restrained” and insert—

“any member of staff who used force on”.

This amendment ensures consistency of language with the rest of Clause 7.

Amendment 48, in clause 7, page 4, line 24, leave out—

“anyone not employed by the registered manager”

and insert—

“any person who was not a member of staff in the mental health unit”.

This amendment makes a drafting change to clarify that the responsible person needs to record whether a person who was not a member of staff at the mental health unit was involved in a use force.

Amendment 49, in clause 7, page 4, line 26, leave out—

“disorders or main mental disorder”

and insert “disorder (if known)”.

This amendment clarifies that the responsible person only needs to record a patient’s mental disorder if it is known. It also makes the language consistent with the Mental Health Act 1983.

Amendment 50, in clause 7, page 4, line 27, after “patient” insert “(if known)”.

This amendment clarifies that the responsible person only needs to record a patient’s relevant characteristic if they are known.

Amendment 51, in clause 7, page 4, line 28, leave out “had” and insert “has”.

This amendment is a drafting change so that Clause 7(3)(h) uses the present tense.

Amendment 52, in clause 7, page 4, line 28, leave out “autism” and insert “autistic spectrum disorders”.

This amendment ensures consistency with the Autism Act 2009 and the Code of Practice published under the Mental Health Act 1983.

Amendment 53, in clause 7, page 4, line 29, leave out paragraph (i)

This amendment leaves out the requirement to record whether any medication was administered during the use of force. This information should be recorded by virtue of Amendment 44.

Amendment 54, in clause 7, page 4, line 30, at end insert—

“( ) a description of the outcome of the use of force;”.

This amendment requires a responsible person to record a description of the outcome of a use of force.

Amendment 91, in clause 7, page 4, line 31, leave out paragraph (j) and insert—

“(j) whether the patient died or suffered any serious injury as a result of the use of force;”.

This amendment requires a responsible person to record whether a use of force resulted in a death or serious injury.

Amendment 56, in clause 7, page 4, line 35, leave out “all” and insert “any”.

This amendment makes a drafting change.

Amendment 57, in clause 7, page 4, line 35, leave out “restrain” and insert “use force on”.

This amendment ensures consistency of language with the rest of Clause 7.

Amendment 92, in clause 7, page 4, line 35, at end insert—

“() whether a notification regarding the use of force was sent to the person or persons (if any) to be notified under the patient’s care plan;”.

This amendment requires a responsible person to record whether a notification regarding a use of force on the patient was sent in accordance with the patient’s care plan.

Amendment 59, in clause 7, page 4, line 36, leave out paragraph (l).

This amendment removes the requirement for a responsible person to record whether consent was given by the patient before force was used on the patient.

Amendment 60, in clause 7, page 4, line 38, leave out “registered manager” and insert “responsible person”.

This amendment is consequential on Amendment 7.

Amendment 61, in clause 7, page 4, line 38, leave out “an entry in”.

This amendment ensures consistency of language with Clause 7(1).

Amendment 62, in clause 7, page 4, line 38, leave out “at least 10” and insert “3”.

This amendment reduces the number of years that records must be kept under Clause 7 from 10 years to 3 years.

Amendment 64, in clause 7, page 4, line 39, leave out from “made” to end of line 42.

This amendment removes the requirement for records to be kept at a mental health unit.

Amendment 65, in clause 7, page 4, line 42, at end insert—

“( ) In subsection (3)(ca) the ‘patient’s consistent identifier’ means the consistent identifier specified under section 251A of the Health and Social Care Act 2012.”.

This amendment is linked to Amendment 45 and defines “patient’s consistent identifier”.

Amendment 95, in clause 7, page 4, line 42, at end insert—

“( ) This section does not permit the responsible person to do anything which, but for this section, would be inconsistent with—

(a) any provision made by or under the Data Protection Act 1998, or

(b) a common law duty of care or confidence.”.

This amendment clarifies that the responsible person’s duty to keep a record of any use of force on a patient and to retain that information is subject to the Data Protection Act 1998 and the common law duties of care and confidence.

Amendment 66, in clause 7, page 5, line 3, leave out paragraph (c).

This amendment removes a paragraph from the definition of “relevant characteristics” that deals with gender reassignment.

Amendment 67, in clause 7, page 5, line 6, leave out from “pregnant” to the end of line 7.

This amendment removes from the definition of “relevant characteristics” whether a patient has maternal responsibility for the care of a child.

Amendment 68, in clause 7, page 5, line 12, leave out subsection (6) and insert—

“( ) Expressions used in subsection (5) and Chapter 2 of Part 1 of the Equality Act 2010 have the same meaning in that subsection as in that Chapter.”.—

This amendment make a drafting change to ensure that the relevant characteristics in Clause 7 are interpreted by reference to the meaning of the protected characteristics in the Equality Act 2010.

Clause 7, as amended, ordered to stand part of the Bill.

Clause 8