The Care Quality Commission ("the Commission") is the new regulator for health and adult social care services. Within this umbrella one of its roles is to protect the rights of people detained under the Mental Health Act 1983 ("the Act"). In this regard it has taken over the functions of the Mental Health Act Commission. Going forwards, the Commission is looking to heavily regulate mental health services.

From 1st April 2010 all providers of assessment or medical treatment for persons detained under the Act will need to be registered with the Commission. The window of opportunity to apply for registration is very tight – all NHS Trusts must apply online between the 4th and 29th January 2010. Between the end of January and April 2010, the Commission will be assessing the applications for registration to ensure that the applicants meet the registration criteria, with the results going live at the beginning of April.

In order to be successfully registered, applicants will need to demonstrate compliance with the Commission's new regulations across all of their services and sites. The Commission has published guidance, which sets out what applicants need to do in order to be compliant for registration.

One area that mental health services will have to demonstrate compliance with is the policies ("the Policies") required under the Mental Health Act Code of Practice ("the Code"). The Policies will be an easy target area for the Commission – it will be a simple "check box" exercise:

1. Is the policy in existence?
2. Does it cover everything it should do?
3. How is it implemented?

Unfortunately, for mental health services the establishment of the Policies along with compliance with them in practice is not such a straightforward task.

The Code details over 30 Policies that have to be implemented locally by hospital managers, local social services authorities, the police, the ambulance service and other services involved in the provision of assessment, treatment and care under the Act. Of these, 24 are directly applicable to hospitals providing mental health services.

The Policies cover a broad range of topics, from the receipt of applications for detention, to the use of restraint and physical intervention and the renewal of detention under the Act. Together, they detail nearly every aspect of assessment, admission, treatment and discharge under the Act. It is the hospital manager’s responsibility to ensure that each Policy is in place, that it is utilised in practice and that it is reviewed, audited and updated. This is no small task, and will require joint working between a variety of services to ensure the Policies do not only meet the specifications of the Code but also are effective in reality.

So what happens if services do not implement and comply with the Policies? Firstly, the services may be ineligible for registration with the Commission. In addition, not only are service users likely to suffer but the services themselves may be subjected to the wide range of enforcement powers wielded by the Commission. These powers range from fines and public warnings to closures of services if standards are not met. On top of the formal sanctions, the service is more than likely to receive negative publicity which any organisation would wish to avoid.

An obvious practical question is, what do the Policies have to include? Unfortunately, the level of detail on the content of each Policy in the Code differs between Policies. With some Policies, pages of the Code are dedicated to setting out precise requirements. With others, there is nothing more than a line to state that a Policy on that particular topic is required.

At Bevan Brittan we are undertaking a thorough review of all of the Policies that services are required to have in place under the Code. In addition to looking at the specific requirements for each policy under the Code, we are also identifying any relevant guidance that has been published by the Department of Health, NICE and the Commission itself and are linking this in with each policy. Finally, we are looking at policies that a variety of hospital trusts have prepared so that we can learn lessons, both good and bad and draw upon others' experience.

Our results are showing two things. Firstly, many services do not have some of these Policies in place at all and secondly, where these Policies are in existence, they often pre-date the Mental Health Act 2007 and therefore do not capture all of the latest requirements.

We are looking to work in conjunction with key clients to draft a suite of template policies that will satisfy a review by the Commission. These policies will draw upon all of our research, and will provide a starting point for services to adapt and make the policies their own.

If you have any questions regarding the Policies, or would like any further information, please do not hesitate to contact Simon Lindsay or Hannah Taylor.

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