Clinical Commissioning Groups (CCGs) were introduced by the Health & Social Care Act 2012 – they are now the bodies in England which are responsible for healthcare. They are, in principle, led by GPs in the area they cover and, as the name suggests, they are responsible for ‘commissioning’ the medical care that is provided for their areas, having taken over this legal responsiblity from the Primary Care Trusts which they replaced. During this time, the structures in Wales remained unchanged: they had Local Health Boards (LHBs) in Wales prior to 2012 and they still do – health provision being a constitutionally devolved responsibility in Wales. Both CCGs and LHBs have certain specific responsibilities under the Mental Health Act 1983 and it these responsibilities I want to touch upon here.
The health professionals reading this should try hard to accommodate my blatant over-simplification in this paragraph, bearing in mind it’s for a police audience, in the main! — the idea behind commissioning is that the CCG can ‘buy’ the required medical services from any competent provider, whether they are an NHS Trust or a private provider like Virgin Care. CCGs are given the budget by NHS England (who in theory hold CCGs to account, but who have also decided to uplift the money given to CCGs for mental health by less than that for physical health) and the GPs are assumed to be competent to take the best decisions for their local areas. Where thought appropriate, CCGs they can combine their efforts to buy care in order to achieve economies of scale: so for example, all the CCGs in Birmingham and Solihull have pooled their money for adult and older-adult mental health care and bought it from Birmingham and Solihull Mental Health Foundation Trust. Just to give a sense of how complicated it can be, one of those ‘Birmingham’ CCGs is actually the Sandwell and West Birmingham CCG who have given some MH money for their Birmingham residents to the overall MH Trust for Birmingham and pooled their ‘other’ mental health money for their Sandwell residents with Wolverhampton, buying services from the Black Country Partnership NHS Trust. Having worked in both Sandwell and west Birmingham as an operational cop, there is therefore a road bordering the areas where you have the same CCG but which MH trust supports you is determined by which side of Stanmore Road you live on – and they provide services in a very different way. Hope that’s nice a clear for you!
This post is about CCG and LHB responsibilities under s140 of the Mental Health Act: this is a section of the Act few people may have heard about, but some of will be familiar with the fact that I bang on about this section with monotonous regularity, ignored as it is by CCGs!
FREEDOM OF INFORMATION
At the end of 2013 I was sat at home one evening, frustrated by yet another story of police officers being asked to illegally detain people in police cells pending a MHA application to hospital by an AMHP. The AMHP was struggling to identify a bed in to which a patient could be admitted and in all fairness, it’s not the AMHP’s legal responsibility to find a bed when it’s required – that duty sits with the lead DR from the patient’s MHA assessment. The DR was struggling because the local trust’s ‘bed management’ system was saying everywhere was full up and they were struggling even to find an ‘out of area’ or private bed in any hospital further afield.
So I decided to dash off three dozen requests under the Freedom of Information Act: asking CCGs to provide to me the list of those hospitals they have a duty to specify to Local Authorities who oversee the operation of AMHPs. I’ll let you read up on the specifics of s140 in a previous BLOG if you want more detail. Suffice to say here that NONE of the thirty-six CCGs could actually answer the question – some of them were even honest enough to admit they did not understand the question! Section 140 obliges CCGs to identify those hospitals within their area or to which they have access that may receive patients in “circumstances of special urgency”.
Where do AMHPs make urgent applications when risks are such that someone needs urgent admission?
Urgent admission is a human rights issue: we saw this in the case of MS v UK  where even ostensibly lawful detention in a police cell under s136 MHA was deemed incompatible with Article 3 of the European Convention because a patient was allowed to get in to an extremely degrading condition when they were in ‘dire need or urgent psychiatric treatment’. So the ability to admit patients quickly is a legal requirement not only to manage any risks to the patient or, less frequently, to others; but it is also necessary to prevent patients who appear lawfully detained suffering extremely degrading conditions when acutely unwell.
When this discussion emerges, it is normally pointed out that s140 doesn’t actually oblige hospitals which find themselves specified from receiving those patients who admission is urgently sought – that if hospitals are full and there are no beds then “there are no beds and that’s the end of it!” said an AMHP to me on one occasion. These kinds of responses miss the point being implied by the section – it’s not so much about creating a duty on already stretched (or over-stretched) hospitals to find capacity to manage another unwell person; more importantly it is about an implied requirement on the CCG to ensure that within their overall commissioning arrangements, they have planned for peaks and troughs of demand and contingency for urgent admissions.
I was caused to think of this again earlier in the week when I read an open letter from the Chief Executive of Help for Heroes, responding to criticism that the charity had done too much, too well, in ensuring provision for injured military personnel. A minister had questioned the provision because beds were empty and Bryn PARRY replied “Recovery is not measured in the number of beds occupied on any particular night; we are not running a Travelodge.” This is the point: an empty bed in a Help for Heroes rehabilitation unit or in a mental health unit is not a disaster: in fact, it’s a necessity if you are dealing with complex service provision and levels of unscheduled demand, you may need available capacity to manage urgent admissions. This is what the court found in MS v UK: that making arguments about a lack of resources in the mental health system was not adequate to explain why someone’s human rights have been violated and it implied the need for contingency. That, to my mind, is all that section 140 is getting at: commissioning.
So back in the world of service delivery decisions by AMHPs and DRs, delaying applications for admission for bed management reasons may well be something advocated by the Code of Practice to the Mental Health Act, but a Code of Practice is legally far less significant than violation of the mental Health Act itself – which makes no mention of ‘beds’ as a threshold for admission – and less significant than violation of the European Convention. But these arguments are about the complexities of service provision: what is ultimately important is that when CCGs are sitting down to make commissioning decisions about mental health care, they anticipate the very obvious reality that from time to time, admissions to hospital are going to be required and that to delay at all will sometimes amount to a violation of Article 3 and / or Article 5. CCGs are public authorities under a proactive duty to prevent those violations in the way they do undertake their work, so they need to be commissioning slack in the system.
Probably best not to get going on supposed financial implications: more than one area of England has already found themselves in the position of having incurred more cost from our of area and private placements to cope with demand than they ever saved by reducing the number of beds in the first place. Cutting beds to save £1m whilst incurring costs well over £1m to cope with resulting excessive demand?! … it’s just inane! Section 140 is not, ultimately, about tactical decisions by AMHPs or about forcing over-stretched hospitals to accept ever more admissions – it is about CCGs recognising a clear implication to ensure they commission just some hospitals in such a way as to maintain contingency options where AMHPs have to act urgently. CCGs are currently doing to AMHPs what Stuart LANCASTER is doing to the England Rugby team – making the tactical execution harder than it needs to be by making some poor strategic decisions.
On that note: I’m now off to watch whether England become the first hosts to be kicked out of their own World Cup even before the end of the group stage.
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